The protection of the right to life and liberty is a constitutional commitment devised by the framers of our constitution to sub-serve the needs of the citizen. The Hon’ble Supreme Court and High Courts have evolved the jurisprudence of protection of life and liberty that is extended to the runaway couples (inter-religion, inter-caste or any societal situation), and live-in partners adapting and acknowledging to the constantly changing social scenario and the extending the application and scope of Article 21 in all spheres of life. The Hon’ble Apex Court and various High Courts of the country have granted protection and laid down the law relating to the protection of life and liberty of the couples.

In common understanding, the couples/partners often believe that protection is a form of court marriage. It is seminal to understand that it should not be misconstrued as court marriage because the court marriage refers to the process of registration of marriage before the Registrar of Marriages, and the court doesn’t validate the legality of any marriage (unless contested by either of the spouses), but instead, protects individual’s constitutional rights.

Historical Perspective of Individual’s Rights

Polygamy was an accepted norm in all societies of the Stone Age, and it is still operating as an accepted norm in some of the tribes in the world. Human beings evolved with time, and it took centuries for humankind to device monogamy, a preferred way of life. The institution of marriage is always kept alive by the partners’ commitment of friendship, love, connection, mutual interest, and shared responsibilities of household & children. The matrimonial relationship includes both rights and obligations.

India is a liberal democracy that has achieved significantly in terms of all social indicators in the past 75 years of Independence, and the Constitution of India has played a pivotal role in making India a liberal, vibrant and robust democracy.

Few Reasons For Disapproval of Runaway/Live-In Couples:

  • Limited understanding of the Constitutional principles;
  • Social fabric of the Society;
  • Economic strata of Individuals;
  • Family preferences;
  • Old belief system;
  • Segregation among the religions, castes, ethnicity, races, etc.

Why Protection of the Right to Life and Liberty is Needed?

It has been observed in the past decades that the couples who got married against the wishes of their parents, or the accepted norms of society, face the apparent threat of losing their lives. Honor killings of the couples in the name of family’s or society’s pride have been observed in numerous cases of inter-caste, inter-religion marriages, or live-in couples. These incidents are anathema to liberal and vibrant democracy.

Our founding fathers of the Constitution were well aware of the societal conditions prevailing in the society, and they were extremely serious to deal with such threats. The incorporation of Article 21 in the Constitution was an overarching measure in the direction of ensuring security & peace of the citizens and non-citizens apart from other dimensions of the Right to life and liberty.

Who can Seek Protection to the Right to Life and Liberty?

  • Runaway couples in inter-religion marriages;
  • Runaway couples in inter-caste marriages;
  • Runaway couples in any other social impermissible marriages or the marriage without the consent of the parents and relatives;
  • Runaway couples (inter-religion, inter-caste, or any other social impermissible);
  • Live-in partners in general upon obtaining the age of majority;
  • Live-in partnership immediately before legal marriageable age;
  • Live-in partners without obtaining a divorce from their spouses;
  • Live-in partners after obtaining a divorce;
  • Live-in partnership among homosexuals couples;
  • Any other person having threat for his/her constitutional right to life and liberty.

When can Protection to the Right to Life and Liberty be Sought?

Whenever, there is an actual or perceived threat to the right to life and liberty erupts, an individual or couple can approach constitutional courts under Article 32 or 226, the Constitution of India.

How is Protection to the Right to Life and Liberty?

The application seeking protection of the right to life and liberty is initially filed to the police authorities and thereafter, before the constitutional courts. The protection of the right to life and liberty declared by Article 21 of the Constitution of India can be invoked by way of filing of Writ Petition under Article 32 & 226 before Hon’ble Supreme Court and the High Courts respectively. Article 21 is reproduced below for the convenience:

Article 21. Protection of life and personal liberty: No person shall be deprived of his life or personal liberty except according to procedure established by law.

It is astonishing to know that this article of the golden triad has given life to more than 35 additional rights including the latest Right to Privacy by the 9 judges of the Hon’ble Supreme Court.

Impact of The Judgments of the Supreme Court on Protection of Right to Life And Liberty:

The Hon’ble Supreme Court followed an extremely narrow interpretation of fundamental rights in Suresh Kumar Koushal vs. Naz Foundation (2014) 1 SCC 1, held that:

52. In its anxiety to protect the so-called rights of LGBT persons and to declare that Section 377 IPC violates the right to privacy, autonomy, and dignity, the High Court has extensively relied upon the judgments of other jurisdictions…

But the recent trends of the judgments of the Hon’ble Supreme Court have given hope to all members of the society that the fundamental rights are extended to every individual of this country.

All 9 Hon’ble judges of the Supreme Court in Justice KS Puttaswamy vs. Union of India, 2017 10 S.C.C. 1, reversed the observations of the division bench of the Supreme Court in Suresh Kumar Koushal vs. Naz Foundation (2014) 1 SCC 1, that impinged upon rights of the members of LGBTQ communities.

The Hon’ble Supreme Court in Navtej Singh Johar vs. Union of India, (2018) 10 SCC 1, had declared the offense u/s 377, IPC as unconstitutional and decriminalized it among the consenting adult human beings. Thereafter, a recent trend of filing protection petitions for the protection of the right to life and liberty has been observed among the members of the LGBTQ community before the constitutional courts. The members of the LGBTQ community were earlier harassed by society or their relationships were not accepted at all, but courts have intervened time and again for the protection of their rights.

The Hon’ble Supreme Court in Joseph Shine vs. Union of India, (2019) 3 SCC 39, had declared the offense u/s 497, IPC as unconstitutional and decriminalized it. Following that, there has been a new trend of filing petitions before the constitutional court among the couples who have not obtained a divorce from their partners and live with the other person of their choice to protect their right to life and liberty. Live-in couples were formerly hounded by society or had their relationships rejected, but constitutional courts have often intervened to preserve their constitutional rights.

Future Hope In Moving Forward

The recent judgments of the Hon’ble Supreme Court has given hope to all the members of the society that the Supreme Court is committed to the Constitution of India, and the ultimate protector of the rights of the citizens. The majority of the High Courts in India have also applied the law laid down by the Hon’ble Supreme Court in letter and spirit. In the past recent years, the Hon’ble Supreme Court has declared old laws that were premised upon Victorian morality as unconstitutional and there are bright chances that more such laws will be declared unconstitutional in the future.

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