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.