PERSONAL LIBERTY – POLITY

News: An unacceptable verdict in the constitutional sense

 

What's in the news?

       Recent judgment by the Allahabad High Court in Kiran Rawat vs State of UP, declining the prayer to an interfaith couple in a live-in relationship for protection from police harassment has caught national attention.

 

Implication of this judgment over Constitutional morality:

1. Affect the fundamental rights: The judgment affects the personal liberty and right to life guaranteed by the constitution in Article 21.

2. Domino effect: Other High Courts and lower courts can take this judgment as a precedent to give similar judgements which affect personal liberty.

3. Non Adherence to Supreme Court’s verdicts: This judgment is not adherence to the previous Supreme Court verdicts, which undermines Constitutional morality.

       EG. In DHANU LAL CASE (2015), the Hon’ble Supreme Court decided that couples living in live-in relationship would be presumed legally married, but the High Court in its judgment implied that the live-in relationship is a “social problem”.

4. Personal laws over personal liberty: This judgment relies mostly on the personal laws rather than constitutionally guaranteed personal liberty and individual autonomy, which was irrelevant in this case.

 

5. Reject bodily autonomy: The High Court said that “sexual, lustful, affectionate acts such as kissing, touching, staring etc.” prior to the marriage, are ‘Haram’ in Islam; This is fundamentally against the bodily autonomy of the human.

6. Social morality over Constitutional morality: High court’s judgment mostly relied on social morality like established customs on marriage rather than constitutional morality.

       EG. In Navtej Singh Johar (2018), while substantially striking down Section 377 of the IPC dealing with same sex relations, the Supreme Court made a constitutional adjudication rather than mere moral judgment.

 

Implications on the Social morality:

1. Moral policing: The High Court in its judgment implied that the live-in relationship is a “social problem”; This can be used by some religious mobs to act against the interfaith and live-in relationships couple.

2. Non consideration of modern societal norms: In the guise of constitutional adjudication, the court only tried to reiterate the traditional beliefs on marriage and morals and not consider the modern principles like live in relationship.

3. Undermine inter caste and inter faith marriage: This judgment will be used as the constitutional weapon to act against the inter caste and inter faith marriages by the conservative parents.

4. Assuming Marriage as a Condition Precedent: Though there were many deficits in the petition, the High Court could not have assumed that marriage is a condition precedent for constitutional protection and the exercise of fundamental rights.

 

WAY FORWARD:

1. Primacy to the fundamental rights: Every court while handling a case should give primacy to the fundamental rights enshrined in the constitution.

2. Binding to Supreme Court judgements: All the courts should bind to the verdicts of the Supreme Court under Article 141 of the constitution, which will ensure the uniformity of application of laws.

3. Cooperation between wings: All the three agencies of the constitution, judiciary, parliament and executive should cooperate with each other to resolve the issue of personal liberty versus personal laws.

4. Judicial Training and Sensitization: There is a need to conduct training programs and sensitization workshops for judges at all levels to ensure a better understanding of constitutional principles, fundamental rights, and the evolving nature of societal norms.

5. Clear frameworks: The Supreme Court can give clear guidelines to the lower court judges while handling the cases related to personal liberty and personal laws.

       EG. In the lines of Vishakha guidelines to handle sexual harassment of women.

 

6. Public Awareness Campaigns: Public awareness campaigns should be conducted to educate people about the rights and legal protections available to individuals in live-in relationships.