Love across fault lines: A test of Article 21

The author, Tanuj Upadhyay, is a final year student at the Campus Law Centre, Faculty of Law, Delhi University, and the Contributory Editor at Awaaz.

Protection of life and personal liberty is one of the most celebrated fundamental rights under the Indian Constitution. Over the years, the Constitutional Courts through their proclamations have gradually expanded the ambit of Article 21. However, as is with other rights in India, there remains a gap between theory and praxis. The lofty claims made in New Delhi often find limited acceptance with both the general populace and administration. And it is in this difficult terrain that the individual rights are truly tested.

In India, by and large, the community is still placed over the individual. This translates into a situation wherein an individual going against the accepted norms is viewed as an aberration. An aberration that needs quick correction or else it might have negative influence on others similarly placed. And this way of thinking at times has serious consequences. The most basic example of this that one frequently comes across is that of “honour killing”. “Honour killing” is an Indian subcontinent specific term. A term rooted in the idea that the supposed dignity of the family trumps the liberty of its constituents. Toe the line or bear the consequences is the message. Consequentially, it is not uncommon to see couples requesting the Courts to provide them ‘police protection’ against their own families.

In such emergent situations, it is but natural to expect the Courts to translate its promise of ‘life and personal liberty’ into a tangible reality. However, there has been a rise of a concerning trend amongst several High Courts. The Courts instead of their role as protectors are starting to act more like mediators. Constitutional morality is being pitted against social morality. Those asking for implementation of their Constitutional guarantees are asked to come with ‘clean hands’. Failure to observe social rules and norms is being held as a ground to deny the cardinal right to life. Protection of life is itself being made contingent on submitting to societal demands.

In a recent judgment of the Allahabad High Court, the Court denied police protection to a live-in couple because the petitioner had not divorced her husband. The Court argued that directing the police to grant them protection would indirectly mean giving assent to their illicit relation. Unfortunately, what the Court failed to appreciate is that the petitioners were not demanding approval for their relationship but a simple affirmation of their right to exist. The Court could have deferred its discussion on the consequences of such ‘illegal relations’. Its primary function under Article 226 was to fend off the immediate threat to their survival. In its defense, the Court has stated ‘it is not against live-in relationship but is against illegal relations’. The irony is that the same Court made an observation last year in a similar case that “live-in relationships are time pass, temporary and fragile”. And it is no surprise that the same Court this year has asked couples seeking protection to disclose marital status in petition.

These cases reveal a constant grievance against Constitutional jurisprudence. The promises made to the citizens usually end up as a hollow rhetoric when tested against real life situations. The Courts’ failure to endorse Constitutional morality against societal pressures dampens individuals’ faith in its ability to uphold Constitutional virtues. These less publicized orders create social meanings for other similarly placed individuals to ‘mend their ways or bear consequences’. The Courts are often last resorts of troubled couples who have been shunned by their own loved ones. It is really here that one demands the Constitutional promises to play out with full force. Leaving them at the mercy of irate relatives is nothing but a betrayal of the highest order.

Fundamental rights are not simply words mentioned in a text. Their real essence lies in coming to rescue of those who are in dire need of them. It is the Constitutional courts who are bestowed with the responsibility to uphold them against all external and internal influences. The Court while deciding on such cases is expected to submit itself to the philosophy enshrined in the Constitution. While it is no easy task to disassociate oneself from one’s own prior convictions of right and wrong, this is precisely the duty the Courts undertake when faced with such situations. Article 21 bars any restrictions on life and liberty except through procedure established by law. Abandoning distressed couples because the Court does not subscribe to their prior actions or inclinations means abdicating the explicit responsibility the Court holds towards the citizenry.

But all is not gloom and doom. The Apex Court in the recent judgment of Devu G Nair v The State of Kerala and Ors. 2024 INSC 228 reiterated that, “Judges must eschew the tendency to substitute their own subjective values for the values which are protected by the Constitution.” In this particular case, a writ of habeas corpus was instituted on the ground that ‘X’ was in an intimate relationship with the appellant and as they were an LGBTQ+ couple, the parents had forcibly kept X in their custody whereas she wished to remain with the appellant.

Noting that the concept of ‘family’ is not limited to natal family but includes a person’s chosen family, the Court highlighted that when faced with ‘humiliation, indignity, and even violence, people look to their partner and friends who become their chosen family’. It reminded that the Courts must not ‘wittingly or unwittingly become allies in the misunderstanding’ that the natal family is always respectful of a person’s choice and freedoms. The Court rightly recognized the fact that in India LGBTQ+, interfaith, intercaste coupleusually experience violence at the hands of their natal family. In contrast, the chosen partners or families usually become a ‘source of immeasurable support, love, mutual aid, and social support.’

Understanding the need for clear guidelines to be formulated for the Courts dealing with habeas corpus petitions and in petitions seeking protection from family or police interference, the Court held as follows-

a. That habeas corpus petitions and petitions for protection must be given priority.
b. That in evaluating the locus standi of a partner or friend, the Court must not make a roving enquiry into the precise nature of the relationship.
c. That the Court should create an environment conducive to ascertain the wishes of the corpus.
d. That the Court must ensure that the wishes of the detained person are not unduly influence by the Court, or the police, or the natal family during the course of proceedings.
e. That social morality laden with homophobic or transphobic views or any personal predilection of the judge or sympathy for the natal family must be eschewed.
f. That if the detained person expresses their wish to not go back to their natal family, they should be released forthright.
g. That a court while dealing with a petition for police protection by intimate partners on the grounds that they are a same sex, transgender, inter-faith or inter-caste couple must grant an ad-interim measure, such as immediately providing police protection. The Court must acknowledge that some intimate partners face social stigma and a neutral stand of law would be detrimental to their fundamental freedoms.

The Apex Court in Devu G Nair underlines the lived reality of many couples who are ostracized for asserting their fundamental freedoms. Constitutional guarantees hold special significance for those who are already at the margins of the society. It is in these everyday petty petitions for police protection that the promises made in the Constitution really unfold.

While Devu G Nair shines a beacon of light, it is no foolproof surety that its guidelines would strictly be adhered to. The gap between proclamations and execution on the ground appears to never bridge. Devu G Nair reiterates the jurisprudence already laid down in Puttaswamy and Shafin Jahan. And yet the Apex Court hadto remind that ‘Courts must exercise caution in passing any direction or making any comment which may be perceived as pejorative’.

In the face of an executive that is gradually eyeing to regulate the most intimate spaces. And a judiciary that keeps on vacillating on its own convictions. The tug of life played out between Constitutionality and morality seems to find no finality. While it may continue to capture legal imagination in the form of debates and discussions, it is important to remember that the real stakeholders are people whose love cuts across fault lines.

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