As regrettable as it may appear, this May 18 order is not a one-off incident as the Punjab and Haryana High Court itself on May 12, 2021, passed another order wherein the court similarly declined to grant protection to a live-in couple stating that if such protection is granted, the entire social fabric of the society would get disturbed. The court rooted it’s reasoning for declining protection to the couple in the fact that the first petitioner was barely 18 and the other was only 21. If this order is indeed rightly reasoned, the court must go ahead and register a sou motu case against all the constitutional law professors of this country, for being so negligent in executing their duties that they forgot to teach us that our fundamental rights granted by the constitution are dependent upon the age or employability of a petitioner. Nevertheless, from what the Supreme Court of India has held, it can be authoritatively stated that Article 21 protection of right to life and personal liberty is not dependent upon any parameter (not even citizenship) or contingent upon any other right, leave alone public morality, social acceptance or social fabric of society. Notably, no other fundamental right, other than Article 25 and 26 (right to freedom of religion, which is subject to public order, morality, health and other fundamental rights) is dependent upon any moral or social acceptance requirement. People derive their right to equality and right to life and liberty from the constitution and it is the mandatory job of the courts to protect these rights from violation and not to impute intentions to petitioners or pass diktats perpetuating a view that smacks of antediluvian Victorian morality.

It is indeed despicable that a discussion on dispensation of legal rights of citizens, has such an inflated rate of bombardment of phrases like ‘public morality’ and ‘social acceptance’. As unfortunate as it may be, this begs the question that should judges be influenced by something as fluid and subjective as popular morality? The courts cannot hold an otherwise unconstitutional act to be constitutional because it is in consonance with the morality of the public. Consequently, the Punjab and Haryana High Court has erred in these orders by giving weightage to an abstract and unnecessary parameter of “public morality” in a proceeding that should have only considered the fact that the petitioners have a certain right to protection and no amount of public outrage should be able to jeopardize this constitutional right. If the court must worry about morality, it is Constitutional Morality that they should concern themselves with rather than public morality. Justice Chandrachud, in his Section 377 judgement, held that constitutional morality requires that the “right of an individual ought not to be prejudiced by popular notions of society”. The judgement went on to say that constitutional morality “reflects that the ideal of justice is an overriding factor in the struggle for existence over any other notion of social acceptance”. Chief Justice Dipak Misra (as he then was) along with Justice Khanwilkar and Justice Chandrachud held that the goal of the court is to “transform society”, or, in other words, “convert public morality into constitutional morality”. However, what the Punjab and Haryana High Court has done is that, in stark contrast to Supreme Court’s judgement, it has converted constitutional morality into public morality and this, in the words of Justice Nariman “is not open for a constitutional court to substitute societal morality with constitutional morality”. The Supreme Court, in the Sabarimala Judgment, has even held that the word “morality” contained in the restrictions of Article 25 and 26 mean constitutional morality and not public morality. It is evident that even when the constitution subjects a right to “morality”, it refers to constitutional morality and not the morality of the specific judge or public at large. Therefore, in such cases that have no restriction of “morality” mentioned in the constitution, it is injudicious of the courts to start reading in the requirements of public morality and social acceptance into the rights-based framework of the Indian Republic.

A parallel can be drawn between the handling of these cases by the High Court and the Supreme Court’s Ayodhya Verdict which received scathing criticism from eminent constitutional scholars for prioritizing “public peace and tranquility” rather than dispensing justice. By extension, it would mean that the court’s decision in the Ayodhya matter could have been different if they were of the opinion that a different decision would bring more public peace and tranquility in the society. Justice, seems to take the back seat in such calculations. The High Court’s handling of the present issues seems to be suffering from the same misplaced priority conundrum wherein it has prioritized public morality and social fabric of society over the constitutional rights that the people have. By extrapolation, one is tempted to think that would the decision of the court have been different if the practice of live-in relationships were socially acceptable in our society? At this juncture, it must be reiterated that the duty of the courts is to protect the rights of individuals from being violated rather than focus on maintaining peace or protecting the supposed social fabric of the society. Moreover, the link between a live-in relationship and the moral fabric of society is itself non-existent and if, in the esteemed opinion of the ever-righteous court, the moral fabric of our society does get disturbed by two heterosexual consenting individuals living together in their own private space, one needs to re-evaluate the utility of having such puritanical social fabric in our lives to begin with.

The process of adjudication of cases, is mostly an exercise in balancing out contested rights of opposing parties. In a conflict of rights, the court examines the contestations between the parties and favors the more legitimate right. In the present cases, the rights in conflict are the constitutional right to life and personal liberty of the couples versus the imaginary non-existent right of the Indian parents to control the lives of their children. Evidently, there is no precedent required to adjudicate this conflict of rights but if the Punjab and Haryana High Court wanted so, it need not go far as a bench of this very court, headed by Justice Sarin, in December, 2020 had ruled that even if the petitioner is not of marriable age, the live-in couple has a right to live together if they are major and that parents cannot force a child to live life on their terms. Justice Sarin held, and rightly so, that the live-in couple will not be declined protection of this court as the court cannot deny enforcement of the couple’s Article 21 fundamental right on the whims of their parents.

In a more recent development, just two days after the May 18 order, Justice Sudhir Mittal of the Punjab and Haryana High Court itself, has, in a judicious, wise and concretely reasoned judgement, granted protection to a live-in couple stating that such a relationship is neither prohibited nor does it amount to commission of any offence and therefore the couple is entitled to equal protection of laws. Moreover, it held that social acceptance for live-in relations are on the increase. However, what is truly remarkable about this order is that although it observes that there is increasing social acceptance of the concept of live-in relationship, the decision of granting protection to the couple was not rooted in this social acceptance. Had the protection been granted on that basis, it would be a repetition of the same mistake as the previous orders, coming to a different conclusion by applying the same flawed reasoning. Instead, Justice Mittal turned to the constitution and held that there is no difference between couple who gets married against the wishes of their parents and couples who live together without a formal marriage and that the law should protect them both equally.

Such prudent reasoning of Justice Sarin and Justice Mittal is also in congruence with the thoughts of libertarian scholars like John Stuart Mill who argue that the only component of an individual’s behavior that can be the concern of state or society is that which effects other individuals directly and that the individual must be sovereign over his body and mind in all matters except this. In this case, no other right of anyone is being affected directly or indirectly other than the already stated imaginary right of the Indian parents to control the lives of their children. The rhetoric of social fabric and public morality are just windows through which the biases of the society and the judges themselves protrude.

Lastly, if the court is indeed turning to history, it is suggested, that they do so, not to refer to primitive Victorian morality, but to refer to the historical 1988 judgement of the European Court of Human Rights in Norris vs Republic of Ireland wherein it was held, in the context of homosexuality but it can be transposed to our present factual matrix as well, that “although members of the public who regard homosexuality as immoral may be shocked, offended or disturbed by the commission by others of private homosexual acts, this cannot on its own warrant the application of penal sanctions when it is consenting adults alone who are involved”. Perhaps it is time that the Indian courts realize that just because the enforcement of a constitutional right may offend, shock or disturb the public, this per se, does not make the right non-enforceable in any way whatsoever. Justice Mittal, though his May 20^th Judgement, currently leads the way in establishing this proposition of preference of constitutional rights over public morality and it would be fascinating to watch if other courts continue to follow this line of robust constitutional reasoning to steadily uphold the fundamental rights of the people of this country.

Views are personal.

The Author is an Advocate practising at the Allahabad High Court