Constitutional, not personal, morality must guide courts
There is an increasing trend of moral censure by courts, which has a chilling effect on people with alternative life experiences, orientations and preferences
In the bail order in a case of rape based on false marriage promises, a single-judge bench of Allahabad high court (HC) made an appeal to “save the moral values in the society”. The man had been in a live-in relationship with a woman who later lodged an FIR under different sections of IPC and the SC/ST (Prevention of Atrocities) Act. Granting bail to the accused, justice Nalin Kumar Srivastava remarked, “So far as live-in relationship is concerned, it has got no social sanction but since the youth is attracted to such relations because a young person, male or female, can easily escape from his/her liability to his/her partner, their attraction is rapidly increasing in favour of such relations. It is high time when we all should think over it and try to find out some framework and solution to save the moral values in the society”. A few months ago, a Supreme Court judge dismissed a special leave petition on divorce with a one-liner that divorce doesn’t give happiness.
Justice BV Nagarathna, while issuing a notice to the Centre in a writ petition wherein an unmarried woman in her 40s was seeking clarification in the surrogacy law, wishing to become a mother through such means, orally observed that a single mother bearing a child outside marriage is not the accepted norm in our society.
In Chandigarh HC, justice Pankaj Jain called same-sex relationships “an immoral thing”. Another bench of the same HC, in a matter of live-in relationship between a man and a married woman, said liberty cannot be at the cost of social fabric. The Calcutta HC stoked controversy, remarking “Adolescent girls must control their sexual urges…”
The list of such instances of moral censuring by judges is long in matters concerning marriage, live-ins, same-sex relations, and intra-faith unions, knowing well that divorce is a right often denied by the courts, live-in has sanction of the law now and so do same-sex relations after the Navtej Singh Johar judgment.
There is an increasing trend of moral censure by the courts, which has a chilling effect on people with alternative life experiences, orientations and preferences. Judges must empathise with such people seeking the realisation of their constitutional rights through justice meted out by the higher echelons of the judiciary. Courts are the last ray of hope for people finding themselves in the shade of grey, beyond the binary of black and white, and hope is all some people have.
Courts are tasked with establishing constitutional morality, not the personal morality of judges or even social morality. In the personal sphere, there is no one definition or standard of morality. While a maternal uncle-niece relationship is seen as filial in the rest of India, it is a favoured marital prospect in parts of southern India. While polygamy was outlawed among Hindus in 1955, it is allowed for Muslims and certain tribes. There are tribes in India where polyandry exists.
Furthermore, it is a well-established principle of law that there’s no necessary wedding between the law and morality. Law is pure reason. Moreover, morality and values are subjective. It is to be seen through the facts and circumstances of a particular person and case.
Society can’t exist without law and order and can’t advance except through the initiative of vigorous innovation, said Bertrand Russell. To develop a scientific temper is a constitutional duty. We must challenge our fixed notions and way of life to respect other’s personal choices and individual autonomy. Judges must judge by constitutional morality and not personal morality.
Seema Sindhu is a Delhi-based lawyer. The views expressed are personal
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