“THE SPACE BETWEEN RIGHT AND WRONG”
– Ms. Pinky Anand, Sr. Adv.
Supreme Court of India
“Law and morals have a common origin but they diverge in development.” – Roscoe Pound
Both law and morality exist to accomplish the same purpose – to differentiate right from wrong. The key difference between two lies in the fact that although law is dynamic, morals are relatively static. Thus issues a battle between those who believe in law “as it is” and those who believe in what law “ought to be”.
Every day as societal beings, we face questions which compelus to think beyond the water tight compartments of ‘right’ and ‘wrong’. The line between right and wrong, black and white is constantly changing and what was considered rightyesterday is no longer acceptable today.
As Bentham wisely stated “Morality commands each individualto do allthat is advantageous to the community,his own personaladvantages included. But there are many acts useful to the community which legislation oughtnot to command. There arealso many injurious actions which it ought not to forbid, although morality does so”.
In S. Khushboo vs. Kanniammal & Anr. (2010) 5 SCC 600 , the Supreme Court observed 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.
Today, the questions are -Are our legislators making laws which are no longer a representation of socialfact? Jurist Eugene Ehrlich said that there is a “living law” which underlies formal rules which can be sought from social facts of society itself. The task of a judge is to identify this living law and integrate it with the formal rules.
The issues which have been pushing the boundaries of stereotypical right and wrong and are forcing the people to adopt a fresh mind set are being discussed by me in this article. The lawit seems has progressed much faster than the mindset of the society. The law makers of our country, who are ‘the people’ as a democracy enshrines, seems to be a step ahead of the society. Hence where protection is being provided by the law to homosexuals, live in partners, major part of India is still grappling to come to terms with these “western concepts”.
The social fact is that live in relationships, homosexuality, euthanasia, prostitution, suicide and other such acts which are considered socially immoral exist in society and are attractive to a large chunk of the population.The tagof immortality (and thus illegality) merely hides these activities from public view but does not prevent them from existing. To my mind, the most relevant issues today which are causing a conflict between the law and societalnorms and thus fallin the space between right and wrong are:homosexuality,live in relationships, and the furore raised by khap panchayats.
With respect to live in relationships, J Katju and J Mishra have said that, “In our opinion, a man and a woman, even without getting married, can live together if they wish to. This may be regarded as immoral by society, but is not illegal. There is a difference between law and morality.”This is a clearexample of law goingbeyond morality.
India being a developing nation and the youngest nation in terms of its demographics, is at a threshold where half its people are cosmopolitan and are in step with the rest of the world and the other half are still part of ruralIndia which still holding tight to the orthodox traditionalnorms which have been practiced since eons. The lawmakers are obviously being progressive and are trying to evolve law as per the requirement of today. I guess this is where the contradiction arises and the space between right and wrong widens.
While other countries have made laws accepting these social facts legalizing live in relationships, homosexuality and euthanasia by taking drastic measureand leavingthe people to adapt to these new standards, Indian Legislature and judiciary has always tried to find the fine line which balances right and wrong and to stick to it. They have to and been extremely cautious of not offending the sensibilities of the ‘older’ India and to meet the demands of today and address the issues arising therefrom.
The fast growing trends of people practicing homosexuality, live in relations and marrying within the samegotras, haveforced thelaw makers to define the boundaries of these relationships and provide protection to the people involved in it.
Homosexuality, sex same relationships may have been a part of our society since lets say forever. But the fact is that it has always been considered to be a taboo and people who practice it have been stigmatized. Not only that, homosexuality was considered to be a criminaloffences punishableunder S. 377 as an unnaturalsexualoffence. Section 377 of the Indian Penal Code criminalised even consensual sexual intercourse ‘against the order of nature’ – ‘order of nature’ being sexualintercourse between adults of opposite gender.
The said provision in the Penal Code has not been amended since 1860. Therefore, even in the 21st century consensual intercourse between adults of the same gender is considered to be a heinous crime punishable with imprisonment of life. The easy way out was to wrap existence of such relationships under covers and deny their existence. However the young and assertive India decided to speak up and start a movement to establish and protect the rights of the homosexuals.
Finally after extreme efforts and dedication,in Naz Foundation v Govt. of NCT and Ors. 160(2009)DLT277, the Delhi High Court took the first step towards dismantling the legal discrimination by interpreting theConstitution ofIndia as requiring a “reading down” of the offence of “carnal intercourse against the order of nature” in §377 of the Indian Penal Code.
The main argument of the petitioner in this case for decriminalizing homosexuality was that Homosexuals, represent apopulation segment that is extremely vulnerable to HIV/AIDS infection. HIV/AIDS prevention efforts were found to beseverely impaired by discriminatory attitudes exhibited by state agencies towards gay community, MSM or trans-gendered individuals, underthe cover of enforcement of Section 377 IPC, as a result of which basic fundamentalhuman rights of such individuals/groups (in minority) stood denied and they were subjected to abuse, harassment, assault from public and public authorities.
TheDelhiHigh Court ruled that section 377 IPC,insofar as it criminalises consensual sexual acts of adults in private, violates the fundamental rights of the citizens of India under the Constitution. It was held that if not amended, section 377 of the IPC would violate Article 14 of the Indian constitution,which states that every citizen has equalopportunity of life and is equal before law. The High Court clarified that the provisions of section 377 IPC willcontinue to govern non-consensual penile non-vaginal sex and penile non-vaginal sex involving minors. However,consensualintercourse between adults of any gender cannot be a criminal offence.
The DelhiHigh Court held that the impugned provision in Section 377 IPC criminalises the acts of sexualminorities particularly men who have sex with men and gay men. It disproportionately impacts them solely on the basis of their sexualorientation. The provision runs counter to the constitutional values and the notion of human dignity which is considered to be the cornerstone of our Constitution. Section 377 IPC in its application to sexualacts of consenting adults in privacy.
The High Court further observed popularmorality or public disapproval of certain acts is nota valid justification for restriction ofthe fundamental rights underArticle21. Popularmorality, as distinct from a constitutional morality derived from constitutional values, is based on shifting and subjecting notions of right and wrong. Ifthere is any typeof “morality” that can pass the test of compelling state interest, it must be “constitutional” morality and notpublic morality.
The High Court quoted Dr. Ambedkar while moving the Draft Constitution in theAssembly [ConstitutionalAssembly Debates :Official Reports Vol.VII: November 4, 1948, page 38].
Dr. Ambedkar quoted Grote, the historian of Greece, who had said: “The diffusion of constitutionalmorality, not merely amongthe majority ofany community butthroughoutthe whole,is an indispensablecondition of government at once free and peaceable; since even any powerful and obstinate minority may render the working of a free institution impracticable without being strong enough to conquer the ascendancy for themselves.”
After quoting Grote, Dr. Ambedkar added :
“Whileeverybody recognised the necessity of diffusion of constitutional morality for the peacefulworking of the democratic constitution, there are two things interconnected with it which are not, unfortunately, generally recognised. One is that the form of administration must be appropriate to and in the same sense as the form of the Constitution. The other is that it is perfectly possible to pervert the Constitution, withoutchanging its form by merely changing its form of administration and to make it inconsistent and opposed to the spirit ofthe Constitution.
……The question is, can we presume such a diffusion of constitutional morality? Constitutionalmorality is not anatural sentiment. It has to be cultivated. We must realise that our people have yet to learn it. Democracy in India is only a top dressing on an Indian soil which is essentially undemocratic.”
Presently the judgment ofthe DelhiHigh Court has been challenged in the Supreme Court and the matter is pending adjudication.
It is seen that the law has acceded and has decided to show tolerance towards homosexuality even though under the umbrella of higher order rights including freedom of speech, rights of health and privacy but there is still a section of society which frowns upon and severe punishments are meted out to people found guilty of harboring such feelings.
Hence, the current law relating to homosexuality is clear effort on the part of the Indian Judiciary to create law beyond morality. But the role of the law makers does not end with this judgment; the important step is not merely to make law beyond moral standards, but to create a higher standard of morality in society, especially in the domain of individual freedom and expression which does not impinge on public good. Only when the society as a whole accepts homosexuality as moral, willthe role of the legislation be properly fulfilled.
LIVE IN RELATIONS
“When two adult people want to live together whatis the offence. Does it amount to an offence? Living together is not an offence. It cannot be an offence,” a three judge bench of Chief Justice K G Balakrishnan, Deepak Verma and B S Chauhan observed in S. Khushboo vs. Kanniammal & Anr. (2010) 5 SCC 600.
In Lata Singh Vs. State of U.P. & Anr., AIR 2006 SC 2522, wherein it was observed that alive-in relationship between two consenting adults of heterogenic sex does not amount to any offence (with the obvious exception of’adultery’), even though it may beperceived as immoral. A major girl is free to marry anyone she likes or live with anyone she likes.
The Supreme Court even observed that Lord Krishna and Radha lived together according to mythology. The apex court said there was no law which prohibits live-in relationship or pre-maritalsex whilereserving its judgment on a specialleave petition filed by noted south Indian actress Khusboo (S. Khushboo vs. Kanniammal & Anr. (2010) 5 SCC 600). The SupremeCourt observed ‘Living together is aright to life,” referring to Article 21 which granted right to life and liberty as a Fundamental Right.
In S. Khushboo vs. Kanniammal & Anr. (2010) 5 SCC 600, the Supreme Court observed that ‘even though theconstitutional freedom of speech and expression is not absolute and can be subjected to reasonable restrictions on grounds such as ‘decency and morality’ among others, we must lay stress on the need to tolerate unpopular views in the socio-cultural space. The framers of our Constitution recognised the importance safeguarding this right since the free flow of opinions and ideas is essentialto sustain the collective life of the citizenry’.
Some say the institution of marriage is dead. I personally don’t agree. However live in relations seem to be the new mantra of day. People who don’t believe in marriage or want be certain of themselves before they commit to marriage, prefer to settle into a live in relationship.
Though such relations are frowned upon by the society at large but it has become extremely popular amongst the younger generation. The Supreme Court held while therecan be no doubt that in India, marriage is an important social institution,we must also keep our minds open to the fact that there are certain individuals or groups who do not hold the same view.
The more popularthe concept became, the more pronewomen became to abuse,duping and fraud. Itbecame imperative that thelaw recognizes this sort of phenomena in the society and lends recognition to it.
There is no legislation which specifically protects therights ofa person/ women in a live in relation however, the Protection of Women from Domestic ViolenceAct 2005bestows allbenefits on a woman living in such a typeof arrangement as available to a married woman under this Act, by reason of being covered within the term ‘domestic relationship’ under section 2(f).[Varsha Kapoor vs Uoi & Ors. 2006 VI AD(Delhi) 472] Thereis stillno legislation which governs the division of property for unmarried couples if the relationship breaks down.
Sections 18-23 of the Protection of Women from Domestic Violence Act2005 provide a large number of reliefs as legalredress.An aggrieved woman can claim reliefs through the courts in the form of protection orders, residence orders, monetary relief, custody orders for children, compensation orders and interim/ex parte orders.
The benefits available to a woman under the Protection of Women from Domestic Violence Act 2005 include a woman’s right to reside in the shared household with her husband or a partner. Section 17 of the Act gives all married women or female partners in a domestic relationship, the right to residein a home thatis known in legalterms, as the ‘shared household’. The same provision applies even if the woman does not have any right, title or beneficial interest in the same.
The law provides that if an abused woman requires, she has to be provided alternate accommodation. The accommodation and her maintenance has to be paid by her partner.
The law, significantly, recognises the need of the abused woman for emergency reliefs to be provided by the partner. She has the right to the services and assistance of the protection officer and service providers, shelter homes and medical establishments stipulated under the provisions of the law.
A woman who is the victim of domestic violence willhave the right to the services of the police. She also has the rightto simultaneously file a criminal complaint under section 498A of the Indian Penal Code. Charges under section 498A can be framed by the magistrate. The offences are cognisable and non-bailable.
For a live in relationship to be offered protection under the ambit of the Domestic ViolenceAct, theSupreme Courtof Indiahas held in Savitaben SomabhaiBhatiya v. State of Gujarat and Ors. (2005) 3 SCC 636 that relationship “in thenature ofmarriage” is akin to a common law marriage. However, the couple must hold themselves out to society as being akin to spouses in addition to fulfilling all other requisite conditions for a valid marriage.
In D. Velusamy Vs. D. Patchaiammal (2010)10SCC469, the Supreme Court has observed that a ‘relationship in the natureof marriage’ is akin to a common law marriage.Common lawmarriages requirethat although not beingformally married:
(a) The couple must hold themselves out to society as being akin to spouses.
(b) They must be of legal age to marry.
(c) They must be otherwise qualified to enter into a legal marriage, includingbeing unmarried.
(d) They must have voluntarily cohabited and held themselves out to the world as being akin to spouses for a significant period of time.
Further, the SupremeCourt has held that a ‘relationship in the nature of marriage’ under the 2005 Act must also fulfill the above requirements, and in addition the parties must have lived together in a ‘shared household’ as defined in Section2(s) of the Act. Merely spending weekends together or a one night stand would not make it a ‘domestic relationship’.
Hence, not alllive in relationships willamount to a relationship in the nature of marriage to get the benefit of the Act of 2005. The conditions mentioned by above must be satisfied, and this has to be proved by evidence.
In Chanmuniya Vs.Chanmuniya VirendraKumar Singh Kushwaha and Anr. 2011)1SCC141 the Supreme Court has held that in those cases wherea man, who lived with a woman for a long time and even though they may not haveundergone legalnecessities ofa valid marriage, should be made liable to pay the woman maintenance if he deserts her. The man should notbeallowed to benefitfrom thelegalloopholes by enjoying the advantages of a de facto marriage without undertaking the duties and obligations.
Though the judgmentin ChanmuniyaVs. ChanmuniyaVirendra Kumar Singh Kushwaha and Anr, the Supreme Court has extended relief for maintenance under S.125 Cr.P.C to women in live in relationships. It has been held that monetary relief and compensation can be awarded in cases of live-in relationships under theAct of 2005, they should also be allowed in a proceeding under Section 125 of Cr.P.C.
If a husband/ partner of the complainant violates protection orders, it willbe deemed a punishable offence. Punishment for violation of the rights enumerated above could extend to one year’s imprisonment and/ or a maximum fine of Rs. 20,000.
In another case the Supreme Court stated that if man and woman are living under the same roof and cohabiting for a number of years, there willbe a presumption under section 114 of the Evidence Act that they live as husband and wife and the children born to them will not be illegitimate.
Hencethe High Courts and the Hon’ble Supreme Court in a number of decisions delivered until recently have showed the positive signs of recognizingthe legitimacy of thelive-in relationships and havealso shown the inclination for a legislation to be enacted with the objective of protecting the rights of couples in a live-in relationship.
The Supreme Court was of the opinion that the caste system is a curse on the nation and the sooner it is destroyed the better. In fact, it is dividing the nation at a time when we have to be united to face the challenges before the nation unitedly. Hence, inter-caste marriages are in fact in the national interest as they will result in destroying the caste system.
It was observed that young men and women who undergo inter-caste marriage, are threatened with violence, orviolence is actually committed on them. Such acts of violence or threats or harassment are wholly illegaland thosewho committhem mustbe severely punished. This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter- religious marriage.
The Supreme Court direct that the administration/police authorities throughout the country willsee to itthat ifany boy or girlwho is a major undergoes inter-casteor inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence, and anyone who gives such threats or harasses or commits acts of violence either himselfor at his instigation, is taken to task by institutingcriminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.
It was held that sometimes `honour’ killings are heard of such persons who undergo inter-caste or inter-religious marriage of their own free will. There is nothing honourable in such killings, and in fact they are nothing but barbaric and shamefulacts of murder committed by brutal, feudal minded persons who deserve harsh punishment. Only in this way can we stamp out such acts of barbarism.
The legal framework of our country is its most powerful tool which contributes towards its progress. We have seen that our judiciary has through times, provided judgments which are extremely far sighted, pragmaticand progressive. Even when thereis alacuna in the legislation, the Indian judiciary has exercised its wisdom and provided guidelines which haveprovided protection to theunderdogs. The Vishaka judgment of 1998 on sexual harassment at workplace is one such beacon. The constant evolution of law is also pushing the socialfabric to also keep in step. The fact that law is recognizing and providing protection to homosexuality,live in partners, peoplewho marry within thesame gotras, is making an impact on the conscience of thesociety and will help in the bridging the gap between the so called “right and wrong”.