By Justice Markandey Katju–
(Justice Markandey Katju is a former Judge, Supreme Court of India, and former Chairman, Press Council of India. The views expressed are his own)
A BJP MP of India, Ajay Pratap Singh, has called for banning live-in relationships (read the news reports here and here).
His argument is that though the Indian Supreme Court has said that such relationships are not illegal, it has also said that they are not approved by the majority in Indian society.
In Khushboo vs Kanniammal, the Supreme Court observed:
“While it is true that the mainstream view in our society is that sexual contact should take place only between marital partners, there is no statutory offence that takes place when adults willingly engage in sexual relations outside the marital setting, with the exception of ‘adultery’ as defined under Section 497 IPC.”
Mr Singh says that what is regarded unethical should also be made illegal.
There are two objections to Singh’s demand:
1. Morality and law are not co-extensive, as the positivist theory in Jurisprudence of Bentham and Austin explained. There are many things which may be regarded as immoral, e.g. insulting or speaking rudely to elders, but which are not necessarily illegal.
Moreover, the criteria of unethical acts also keep changing with the passage of time. Something which may have been regarded immoral in the past may not be so regarded today, and something regarded immoral today may not be so regarded in the future.
For example, at one time, in India, one’s life partner was chosen by one ‘s parents, but today “love marriages” are common, and quite acceptable in a large section of our society. In Western countries live-in relationships are very common, and no one frowns on them.
It is true that the majority in India disapproves of such relationships, and regards them as immoral. But a minority find nothing objectionable in them, since it is the couple’s private affair, and no one has any business or right to interfere in it.
With the passage of time, the minority view may become the majority one.
2. Live-in relationship is part of the right to privacy, which has been declared to be part of the right to life and liberty guaranteed by Article 21 of the Constitution vide Justice K.S. Puttuswamy vs Union of India, 2017.
In this nine-judge bench decision, Justice Chandrachud (as he then was), who wrote the plurality decision, observed:
“Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life.”
The Court was of the view that sexual orientation was also an aspect of privacy guaranteed by Article 21 of the Constitution.
Thus, a couple has a fundamental right under Article 21 of the Constitution to have a live-in relationship, and even Parliament cannot ban such relationships, since no law made by Parliament can override the Constitution vide Marbury vs Madison 5 US 137 (1803).
Only a Constitutional amendment can ban live-in relationships, but clearly the ruling party in India does not have the numbers for that in the Rajya Sabha (the Upper House of Parliament).
