On 11.05.2021, a Single Judge Bench of the Punjab and Haryana High Court of India (‘HC’) declined to grant protection to adults who were in a live-in relationship - from the physical harm they apprehended from their unapproving parents. In a terse order, the Bench recorded its decision’s basis to be that such relations are “morally and socially not acceptable”. Later, on 12.05.2021, another Single Bench rejected a similar petition, since otherwise “the entire social fabric of the society would get disturbed”.

On 18.05.2021, another Judge of the High Court - Mittal, J., instead ordered protection for another live-in couple from their parents. This time, Mittal, J. emphasized that the absence of social recognition is no ground to subvert the fundamental rights of the petitioners. Exploring these bizarre inconsistencies, this piece shall focus on the need to remove ideas of ‘social morality’ from judicial reasoning - something which the Indian Supreme Court (‘ISC’) has already been signaling towards.

Dissecting Fundamental Rights Violations

The Indian Supreme Court has on various occasions acknowledged that live-in relationships are not a crime. Instead, it has realized that choosing one’s partner and pursuing interpersonal relations is a facet of one’s identity, dignity, and privacy. Therefore, it’s a part of the right to life under Article 21 of the Indian Constitution. Some judgments on this point are Lata Singh v. State (2006),[i] Khushboo v. Kanniammal (2010),[ii] and Sarma v. Sarma (2013)[iii] (though these decisions’ exaggerated emphasis on heteronormativity is unwelcome). Some Indian courts have also applied these principles to protect queer rights, including a live-in arrangement between a trans-man and a cis-woman. International human rights advocates have made similar strong defenses of live-in relationships under international frameworks.

Very slowly, but visibly, the judicial habit of viewing these relations as subordinate to a marriage is receding, with some acknowledgment of their autonomous status. There certainly are good reasons why individuals may want to engage in live-in relationships. However, “reasons” for pursuing them are in any case immaterial for this dialogue - given the personal nature of these rights. Any such inquiry, therefore, would be abhorrent to individual dignity and autonomy. Given all this, the HC’s first two orders declining protection to the petitioners are without doubt illegal. Unlike Mittal, J.’s order - the others also highlight omissions of constitutional values.

The Discontents of The HC’s Claims To ‘Morality’

In Navtej Singh v. India (2018)[iv] and Joseph Shine v. India (2018),[v] cases which decriminalized consensual homosexual intercourse and adultery respectively, the Indian Supreme Court extensively discussed that courts must heed only ‘constitutional’ values in their reasonings. This means that ‘social’ consensus on a practice is irrelevant in fundamental rights adjudication. This is notable here on three counts.

First, the very act of judicially assuming the moral consensus of a society has impropriety, as the HC’s first two orders exemplify. Anthropologists have criticized Indian courts for giving little justifications for their views on what a society’s belief or ‘fabric’ constitutes. Instead, such judicial records are largely anecdotal. If protecting live-in relations would indeed collapse society, then one wonders how Punjab and Haryana’s peoples have comfortably survived Mittal, J.’s most virulent assault on this presupposed social fabric.

Second, even if “heavens may fall” if live-in relations are protected - so be it. Courts’ mandate is to uphold constitutional values, and thus, give maximal effect to the right to life. This allows courts objectivity, since Judges know to turn to dignity, liberty, and autonomy, even in the face of any potential social backlash. The HC’s first two orders disappoint on this count. Only if constitutional objectivity is followed, can such inconsistency in orders be avoided.

Third, even when a consensual practice is supposedly gaining social acceptance, it is perhaps best to not give this growing social inclusivity much weight in judicial reasoning. The ISC in Navtej emphasized society’s slow inclusion of LGBTQIA+ identities, while Joseph Shine noted this for anti-patriarchal attitudes. These extensive observations, though signaling welcome trends, suffer from the same criticism as less progressive decisions based on ‘social’ morality - that of presupposing society’s moral consensus.

Certainly, the progressive realization of rights using social acceptance as an interpretative aid has value. However, treating social acceptance as a proxy for constitutional values’ imports may suffer from the same, though unconscious fallacy of treating rights as subservient to social consensus. Thus, even if such decisions are in effect progressive realizations, it may be best to exercise some care in acknowledging that interpreting constitutional values is not contingent on social ‘morality’.

Concluding Thoughts

In his order granting protection, Mittal, J. also attempts to challenge the empirics of whether society accepts live-in relations, trying to outline an assertion that they are slowly becoming normalized. However, at the end, he heeds the above ideas by concluding that social consensus is in any case immaterial for constitutional adjudication. Hence, it is hoped that the HC’s future orders follow suit, and that in the future, observers reach a position to opine that the first two orders of the HC were aberrations from common judicial reasoning.

After this, Thakur, J. of the HC has made an order resembling Mittal, J.’s, where she reiterated the irrelevance of social consensus in respect of validating the petitioner’s fundamental rights. Though her order is encouraging, there is some evidence of imagining live-in relations as ‘less than’ the heteronormative marital institution, in that the phrase “sanctity of marriage” appears on 4 counts of the order. Thus, while welcoming such orders, we are yet to see the day where such references to “sanctity” cease to be the ‘norm’ - and live-in relations are seen in courts as autonomous civil unions that are separate, but equally valid social institutions.

In view of these four conflicting coordinate bench views, on 24.05.2021, Kshetarpal, J. of the HC has referred the crux of the involved questions to a larger bench, the decision of which is now awaited. Particularly, the question is whether persons in live-in relations can seek protection “without [the court] examining their marital status”. There is no better way to end this piece than to express hope that this larger bench closes this judicial conflict once and for all by heeding personal autonomy, and therefore, respecting its mandate to uphold constitutional morality.

[i] Lata Singh v. State of U.P. & Anr., AIR 2006 SC 2522. [ii] S. Khushboo v. Kanniammal, (2010) 5 SCC 600. [iii] Indra Sarma v. V.K.V. Sarma, (2013) 15 SCC 755. [iv] Navtej Singh Johar v. Union of India, AIR 2018 SC 4321. [v] Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676.

Image Source: The Better India

This article has been authored by Abhijeet Shrivastava. Abhijeet is a third-year law student at Jindal Global Law School.