BLOG- RIGHT TO LOVE: A BATTLE FOR US

In this era of great realization where the people are more aware and concerned about their rights than ever, the right to love is one right that has managed to slip through the crevices of the legal domain. Often shadowed under the ambit of Article 21, this aspect has not been discussed in the judicial gallows comprehensively and exhaustively. While the fondness of our judiciary with literature has been everlasting, unlike their favourite poets, the judges have often shied away from describing love holistically as an emotion, fundamental and intrinsic.

In 2013, when the Supreme Court refused to review its decision in the case of Suresh Kumar Koushal & Anr. v. Naz Foundation & Ors.[1], Vikram Seth wrote:

“To sneer at love, and wrench apart
The bonds of body, mind and heart
With specious reason and no rhyme:
This is the true unnatural crime”

In 2018, when the Supreme Court pronounced one of its most historic judgments of the century, Navtej Singh Johar v. Union of India[2], the apex court was courteous enough to give back the debt it owed to the poets whose words they have forever stolen without any reverence to their emotion for love. The Hon’ble supreme court quoted a plethora of literature and surprisingly Vikram Seth’s work “Through Love’s Great Power”.

With Navtej Singh Johar, a great stigma from Indian legal system was lifted. However, the Supreme Court missed yet another opportunity to embark “Right to love” as a fundamental right and unshackle the society from laws which have always suppressed the very idea of love. Quoting Chandrachud, J., “the right to love is not just a separate battle for LGBT individuals but a battle for us all.”

Though courts, at various times, have talked about the right to choose life partner under the ambit of fundamental rights, a dedicated right to love has never been pronounced. However, the role of the judiciary is to merely set a legally permissible set of behaviour. It does not, and need not, associate itself with establishing a moral social standard.

The idea of love as a fundamental right suffers from a myriad of fetters, some of them we shall discuss now.

• Right to choose

At the helm of right to love comes the right to choose. The right to choose a life partner or a lover has been seen as a taboo and an act of rebellion in the Indian society. From the horrendous crime of honour killing to the oppressive system of Khap Panchayats, the right to choose has been snatched very systemically under the name of authority and stature. Rather, it would be a misnomer to use the word “snatch” because it’s a right which has never been given in the first place. The Constitution of India under its Article 21, gives the right of personal liberty to all, yet the social conformity to this has been demoralising.

Khap panchayats are caste or community groups, largely present in rural areas of Haryana, Rajasthan and Uttar Pradesh. At times, these act as quasi-judicial bodies and pronounce harsh punishments based on age-old customs. Masquerading as conscience-keepers, they operate as a system of oppression and subjection of young lovers to hardships and illegal prohibitions.

Finally, in 2010, the Apex Court in Shakti Vahini v. Union of India[3] held that “Under Article 21, protection of life and liberty, guards basic human right and equality of status has been unceremoniously disrespected by these panchayats, without the slightest pangs of conscience, subscribe to honour killing”. The Supreme Court vehemently spoke on right to choose and held that: “It has to be sublimely borne in mind that when two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution. Such a right has the sanction of the constitutional law and once that is recognized, the said right needs to be protected and it cannot succumb to the conception of class honour or group thinking which is conceived of on some notion that remotely does not have any legitimacy”. Beyond all social fetters and dogmas, the consent of the couple was piously given primacy.

Further, it was observed that: “The choice of an individual is an inextricable part of dignity which cannot be interfered in the fructification of said choice. When two adults marry out of their volition, they choose their path; they consummate their relationship; they feel that it is their goal and they have the right to do so. Such infringement and obstruction is unequivocally a constitutional violation. Extra-constitutional perception of the community has to be melted into oblivion paving for a smooth path of liberty.”[4]

Therefore, the Supreme Court has very appositely observed that the right to choose a life partner is a fundamental right. Also, in Navtej Singh Johar[5], the Supreme Court has held that the right to choose a sexual partner is also a fundamental right. Therefore, this choice extends not only about marriage but any relationship for that matter.

• Right to reject

Like two ends of a tightrope, the right to choose and the right to reject cannot function without each other. To employ one and neglect others would serve no purpose in society. A choice without an option to reject is a farce, a mere Hobson’s choice. However, society has always given a man’s right to choose a primacy over a women’s right to reject. This has manifested in the form of forced marriages, hate crimes against women and subjugation of their right in general.

Speaking on the plight of a deceased young girl, who was harassed by her lover and forced to elope, the Supreme Court held that: “In a civilised society, male chauvinism has no room. The Constitution of India confers the affirmative rights of women and the said rights are perceptible from Article 15. When the right is conferred under the Constitution, it has to be understood that there is no condescension. Egoism must succumb to law. No one can compel a woman to love. She has the absolute right to reject.”[6]

The Court very explicitly said that with the right to choose comes the right to reject. One cannot exist solitarily and must adhere to others. In its verdict, the Court remarked that the society is at a low point where eve-teasing was causing harassment to women in public places and it showed that society has failed to instil a sense of respect towards women. The Court further remarked that: “It has to be kept in mind that she has a right to life and entitled to love according to her choice. She has an individual choice which has been legally recognised.”

Therefore, with the case of Pawan Kumar v. State of H.P.[7], the Court expressed strong disenchantment that the practise of women harassment was interfering with their right to choose and reject.

Along with caste and gender-bias, religion remains to be one of the biggest divisive forces in the country. From religion-based violence to honour killings, this land of spiritualism has severed many limbs and ties on the name of religious ethos.

• Asokan K.M v. State of Kerala – A religious conundrum

The case became synonymous with the neologism “Love Jihad”. It exposed the fragility of human emotions and how social morality, at times, takes place of law.

The Kerala High Court while applying the doctrine of parens patriae[8] annulled the marriage of an adult Hindu girl Akhila alias Hadiya, even after her explicitly declaring her desire to stay with her husband and that she has made a conscious decision of religious conversion and marry a Muslim.  While applying the said doctrine, The State acts as the parent of such an individual.

The Supreme Court held that “Ms Hadiya is neither mentally incapacitated nor vulnerable. She unequivocally expressed her choice, and the right to choose is a constitutionally guaranteed freedom and a facet of individual identity. It could not take precedence over social and moral values. A Constitutional Court must protect fundamental rights and thus could not reject Hadiya’s choice.”

The Supreme Court decision was filled with pejoratives towards Kerala High Court’s decision and held that the High Court could not annul a marriage under Article 226 of the Constitution. Further, it was stated that social values and morals have a different place but they cannot supersede the constitutional provisions related to fundamental rights. In a case surrounded by suspicion of a global conspiracy and NIA investigation, the Apex Court upheld the right to choose a life partner as supreme and unalienable.

While the Supreme Court has given primacy to the right of married couples, the concept of live-in relationships has also found a place in current legal realms.

• Live-in relationship: the changing norm

The concept of live-in relationships has been existent in Indian society from the past few years. Though these relationships have always been looked down upon by society, the law has been impartial to them. “In modern times, a live-in relationship has become an acceptable norm. It is not a crime,” a bench comprising of Justices Dipak Misra and Prafulla C. Pant observed.

The Supreme Court has been framing laws and treating certain live-in relations on an equal pedestal with a marital relationship. Numerous rights have been conferred on live-in partners about various laws. In 2013, a Supreme Court bench of Justices K.R Radha Krishnan and Pinaki Chandra Ghose had framed guidelines for bringing the live-in relationships within the purview of the Protection of Women from Domestic Violence Act, 2005.

In 2018, in its landmark judgement of Nandkumar and Anr. v. State of Kerala and Ors.[9], the Supreme Court held that adult couples have the right to stay together without marriage. The court mentioned that “It would not be out of place to mention that live-in relations are now within the purview of the legislature itself and they have found a place under the provisions of the Domestic Violence Act, 2005.”

The stance of the Supreme Court about its legality has always been that the live-in relationships are not unlawful and adults have the right to co-habitation as per their will. However, the court’s view on social acceptability has been changing progressively. From “That two consenting adults engaging in sex is not an offence in law, even though it may be perceived as immoral”[10] in 2006  to “ In modern times, the live-in relationship has become an acceptable norm” in 2015,  the court has given these rights a morale boost as well as taken a liberal view of the same. This is reflective of changing societal norms as well as judicial liberalism.

The Supreme Court in Indra Sarma v. V.K.V. Sarma[11] defined live-in relationships in five distinct ways and also stated that a live-in relationship will fall within the expression “relationship like a marriage” under Section 2(f) of the Protection of Women against Domestic Violence Act, 2005. Along with many other rights, live-in partners are now entitled to seek a financial sum as maintenance. In D.Velusamy v. D.Patchaiammal[12], the court relied on the concept of ‘palimony’.The concept of palimony was derived in the U.S in the case of Marvin vs. Marvin.[13]

Therefore, not only has court conferred right to live-in partners but has also accepted such relationships as acceptable in modern society. Interestingly, in the Supreme Court hearing of Maharashtra government’s decision to ban dance bars, a bench comprising of Justices AK Sikri and Ashok Bhushan said, “now even the law and society have recognised live-in like relationships, which earlier were not acceptable.”

As a whole, the courts have been liberal and have stuck to constitutional values while catering to changing needs and trends of the society. However, not all elements of society and not all societies have stridden in this direction at the same pace. The issue of moral policing has been creating a ruckus in society and hindering the reach of the right to love to people, especially youth.

• Moral policing

Moral policing refers to vigilantism by public or police forces which seeks to enforce a sense of civic morality and culture amongst people. Generally targeted at youth, it seeks to promote certain acts and shun others. The moral-police portrays to have an assumed sense of self-righteousness and moral conscience higher than others. Certain acts of moral policing have been highly publicized although they seek to suppress some constitutionally granted exercise of rights such as dressing in a certain way or being in a romantic relationship.

With all the talk of “right to love”, its expression cannot be ignored. P.B Shelley in his poem “Love’s Philosophy”, very beautifully pens down:

The sunlight clasps the earth,

And the moonbeams kiss the sea-

What is all this sweet work worth

If thou not kiss me?

However, a great taboo is still attached in India for expression of love. Young lovers sitting in public places are often harassed by moral police and they are treated as they have sinned against society. The simple act of holding hands in public has triggered disdain at times. Certain organisations are notorious for harassing couples on various occasions and discourse to legitimize these actions has been burnished. This vigilantism is both unethical as well as unlawful as it seeks to take away rights which have been constitutionally granted.

Following the same line of thought, Kiss of Love protest was a non-violent protest against moral policing which started in Kerala, India and later spread to other parts of India. The protest aimed at normalizing the act of kissing in public and bringing it out of the purview of word “obscenity” under section 294 of the Indian Penal Code, 1860. The law in this matter has been vague as no proper definition has been assigned to the word “obscenity “, which is a debate of its own. The ‘public annoyance’ has been set as a yardstick for determining an act as obscene or not. Therefore, the law in this matter is not clear and depends on the place and collective conscience of the society in general. The courts have acknowledged that the society is changing and thus the definition of what is obscene goes through a dynamic transformation.

Even as late as 1969, the court observed that “standards of contemporary society in India are fast changing. [14]” Regarding ‘contemporary community standards’, the Supreme court has noted that it is not “the standard of a group of susceptible or sensitive persons”[15] that can be held as the standard of the community. “Notions of social morality are inherently subjective and the criminal law cannot be used as a means to unduly interfere with the domain of personal autonomy.”[16]

Therefore, the Supreme Court, within its statutory limits had sided with the idea of free expression of love and its changing precepts in modern society. In a Delhi High Court judgement, Justice S. Muralidhar observed, “It is inconceivable how… the expression of love by a young married couple would attract the offence of obscenity and trigger the coercive process of law.”

However, a plain reading of the text makes it clear that this ruling applies to married couples and for unmarried couples, it’s still a long way home.

Conclusion

While the Supreme Court has backed the right to love through its various judgements, it has not been ceremoniously declared as a fundamental right. Mere virtue signalling would not fulfil the purpose in a society like ours which has been always reluctant in adapting to change.

From allowing interracial marriages as late as 1967 in the case of Loving v. Virginia[17] to allow homosexual marriages as early as 2003 in Lawrence v. Texas[18], the American jurisprudence has witnessed long strides. This is something for Indian society and judiciary to collectively look upon.

Our judicial decisions are both reflective of societal norms as well as their shaping force. In the end, love has to do with emotions and the human spirit. Quoting Leila Seth, C.J., “what makes life meaningful is love.”  Even if suppressed, it is sure to surpass all boundaries of legality and prosper in its light as it is the supreme force of nature. The state shall have very little to do with the same. Sir Henry David Thoreau said, “the best government is that which governs the least. And when the people are ready for it, that is the government they deserve”.[19]

In regards to the right to love, I believe the people of this country are now ready for it.

References-

[1] Civil Appeal No. 10972 of 2013

[2] AIR 2018 SC 4321

[3] AIR 2018 SC 1601

[4] Shakti Vahini v. Union of India AIR 2018 SC 1601

[5] Navtej Singh Johar v. Union of India AIR 2018 SC 4321

[6] Pawan Kumar v. State of H.P (Criminal Appeal No. 8998 of 2016)

[7] Criminal Appeal No. 8998 of 2016

[8] Parens patriae is the power of the State to intervene against an abusive or negligent parent or guardian.

[9] Criminal Appeal No. 597 Of 2018

[10] Lata Singh v. State of U.P and Anr. AIR 2006 SC 2522

[11] AIR 2014 SC (309)

[12] AIR 2011 SC 479

[13] A landmark judgment of the California Superior Court, 8 Cal. 3d 660, 134 Cal. Rptr. 815, 557 P.2d 106 (1976)

[14] Chandrakant Kalyandas Kakodar v. The State of Maharashtra AIR 1970 SCR (2) 80

[15]Aveek Sarkar and Anr. v. State of West Bengal Criminal Appeal No. 902 of 2004

[16] S. Khushboo v. Kanniammal, (2010) 5 SCC 600

[17] 388 U.S. 1 (1967)

[18] U.S. 558 (2003)

[19] Civil disobedience, 1849.