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Constitutionality vs. morality: The tendency of High Court judges to make decisions based on their personal convictions

A recent habeas corpus case pertaining to a same-sex relationship was described as an “immoral thing” by Justice Pankaj Jain of the Punjab and Haryana High Court, who also questioned the petitioner’s link to the putative detainee. Justice Jain said to the petitioner’s attorney, “Madam, I don’t subscribe to the theory that constitutionality and morality are different.”

Indian courts have previously issued rulings based on the judge’s personal morality as opposed to the frequently stated “constitutional morality” that the Supreme Court has recently espoused. “Adolescent girls must control their sexual urges instead of giving in to two minutes of pleasure, and adolescent boys must respect young girls and women and their dignity and bodily autonomy,” stated a recent order issued by the Calcutta High Court. The Supreme Court intervened quickly to halt this directive. Not just amongst same-sex couples but also between married and unmarried heterosexual couples, many of these incidents include sexual connections.

This strategy goes against what India’s Chief Justice, DY Chandrachud, stated at a seminar in April of last year. Judges don’t consider the opinions of the public while making rulings. They adhere to public morality, not constitutional morality. Human dignity, equality, personal morality, and fraternity are all part of constitutional morality, according to CJI Chandrachud.

The Chandigarh Union Territory as well as the two states are under the jurisdiction of the Punjab and Haryana High Courts. It gets hundreds of petitions every week asking for protection for couples who are facing harassment from their families for not following religious or caste norms.

While most of them do receive favorable rulings that include instructions to the police to guarantee their safety, some of them wind up being fired without warning. A married woman and her boyfriend went to the High Court in July of last year to ask for protection from her husband’s alleged threats. The applicants’ relationship was deemed “illicit” by the court.

In the August 29 judgment, Justice Alok Jain stated, “There is no doubt that one has the liberty and freedom to enjoy life as they want to, but that cannot be at the cost of social fabric, moreso by hampering the pious relationship of husband and wife and the rights of others.”

The Court stated that the petition had merely been submitted to “cover up the misdeeds of petitioners on account of being caught in some promiscuous relationship,” characterizing the alleged threats as imprecise. This year, on January 10, the petition was denied. In the woman’s husband’s petition, the court did, however, issue an order directing the police to investigate his claims against his wife and her friend.

In a related case involving a married man living with a woman, Justice Kuldeep Tiwari noted that bigamy under Section 494 of the Indian Penal Code (IPC) could be applied to an individual leading “a lustful and adulterous” life without first obtaining a divorce from a previous spouse. In a recent instance, the High Court even assessed expenses for cohabiting couples in which one of the men or the woman had an active marriage. In numerous orders, the Court has used the terms “promiscuous” and “illicit” to characterize these kinds of interactions.

It is important to note that other members of the same High Court have gone so far as to declare that, in accordance with Article 21 of the Constitution, an individual’s right to life and personal liberty must be upheld “regardless of the solemnization of an invalid or void marriage or even the absence of any marriage between the parties.” Judge Siddharth of the Allahabad High Court disapproved of live-in partnerships in August of last year, saying that there is no morality for the upper class and that the lower class cannot afford to follow the same due to financial constraints.

The judge continued by declaring that there is a “systematic design” to undermine the nation’s marriage institution and cause social unrest. These observations were made when a man accused of rape on false pretenses of marriage was granted bail.

“Live-in relationships will only be accepted as normal when the concept of marriage in this country is rendered obsolete, as it has been increasingly difficult for many so-called industrialized nations to uphold the institution of marriage. We are going to cause ourselves a lot of problems down the road. The judge declared, “There is a deliberate plan to undermine the institution of marriage in this nation, undermine social stability, and obstruct the advancement of our nation.”

Several couples in comparable circumstances have been denied relief as a result of a judgment that made comments along these lines and was rendered in response to an interfaith couple’s request for police protection. In that decision, a division bench made up of Justices Sangeeta Chandra and Narendra Kumar Johari minimized the Supreme Court’s opinions on live-in partnerships, holding that they do not equate to the court’s endorsement of them.

The Court went on to quote Muslim law to declare that Islam forbids premarital sex or sex outside of marriage, especially in the instance of the Hindu-Muslim couple. Based on the division bench opinion, we found over a dozen orders in which the High Court refused to safeguard interfaith marriages. In a habeas corpus case just last month, Justice Shamim Ahmed of the Allahabad High Court stated that people should respect Indian customs and culture because they are not as common as they are in Western nations.

The “bane of live-in relationships” was similarly noted by the Madhya Pradesh High Court in April 2022 in a rape case, stating that it was a “by-product” of the constitutional right as stated in Article 21.  Judge Subodh Abhyankar stated that live-in partnerships encourage promiscuity and lewd behavior, which in turn leads to more sexual offenses. Such orders from the High Court represent a break from the Supreme Court’s constant stance that respecting consenting sexual relationships is essential and that the right to life and liberty is vital.

In Navtej Singh Johar v. Union of India, the Supreme Court emphasized that the judiciary is supposed to respect constitutional principles and not be swayed by popular opinion or majoritarian viewpoints. The Supreme Court declared in the historic decision that decriminalized homosexual sex that “the Court has to be guided by the conception of constitutional morality and not by societal morality.” The Court issued a warning, specifically to same-sex couples, saying that those who identify as LGBT should not be treated like second-class citizens under the guise of societal morality.

The constitutional courts have a duty to uphold fundamental rights; if this takes place or if the LGBT community is subjected to such treatment, they will not be fulfilling that obligation. If this weren’t done, citizen rights would become meaningless. In a similar vein, the highest court in the same-sex marriage case from the previous year ruled that an individual’s right to a relationship encompasses the freedom to select their spouse, live as they please, cohabit, and experience sexual contact with them.

According to Justice S. Ravindra Bhat’s majority ruling, “the state is bound to extend necessary protection whenever their right to enjoyment of such relationships is under threat of violence.” The Supreme Court has long held progressive opinions regarding non-traditional unions, though. In the 2006 Lata Singh v. State of UP case, the Supreme Court ordered the nation’s police and civil administrations to make sure that marriages between people of different castes or religions are safe from threats or violent acts. In the 2010 case of S. Khushboo v. Kanniammal & Anr, the Supreme Court commented on pre-marital sex and the public attitude around it.

Social morality is a subjective concept, and the criminal code cannot be used to unnecessarily intrude on an individual’s right to personal liberty. Criminality and morality are not mutually exclusive. In 2018, Justice DY Chandrachud, who was then in charge of the renowned Hadiya case in Kerala, emphasized in a separate but concurring conclusion that “choice of a partner whether within or outside marriage lies within the exclusive domain of each individual.”

“A person’s freedom to choose their spouse or to make other decisions about their life cannot be restricted by the state or the law. According to the Constitution, they are the foundation of individual liberty, according to Justice Chandrachud. Even though the Supreme Court has consistently held views on relationships that may not align with the dominant social norms, high courts have made decisions based on their individual convictions. There are enough rules for these situations, according to former chief justice of the Uttarakhand High Court Vipin Sanghi, but certain judges may feel so passionately that they wind up morally policing the spouses.

The former judge added that he would never refuse assistance to a couple who were under threat from their relatives. “I genuinely think that everyone’s rights should be upheld. I would provide them with protection if they asked for it, regardless of whether they are interfaith or in a live-in relationship.

One of the couples is already married and may have abandoned their spouse in a large number of the cases where judges have expressed disapproval of live-in relationships. Divorce cases take 10 to 12 years to reach a decree due to the lengthy court case backlog, following which there is an appeal. The only remaining choice is a live-in relationship, he stated. Singh emphasized that judges should be guided by constitutional precedents, which is why courts issue bail to people even when they are charged with the most serious offenses. He stated, “It is a question to reflect on how these moralistic and preachy observations are seen in cases involving basic rights to life and liberty.

Ahir Mitra
Ahir Mitra

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