A chilling effect on the freedom to love (GS Paper 2, Governance)
Context:
- On February 7, 2024, the Uttarakhand Assembly passed the Uniform Civil Code of Uttarakhand Bill, 2024, which purportedly consolidates a common law on marriage and property inheritance.
- The Bill only awaits the President’s assent to become enforceable law.
Concerns:
- A problematic feature of the Bill is the mandatory requirement of registration of a live-in relationship and its criminalisation, if certain conditions are not complied with.
- With this mandate, the proposed law will become the foremost weapon of the state to penalise consensual relations and violate individual autonomy.
Registration of a live-in relationship:
- The Bill, requires live-in partners to submit a ‘statement’ to the Registrar concerned. The Registrar has the powers to examine the statement and conduct an inquiry into the relationship.
- From a reading of the Bill, it appears that anyone can inform the Registrar of a live-in relation, which she can then act upon.
- She is empowered to examine the consent of parties, marital status, and the age of partners. Moreover, partners can be required to make a personal appearance and the Registrar can also refuse to register the relationship. Termination of a relationship also requires notice to be submitted.
Criminal penalty:
- Another dangerous feature of the Bill, however, is the criminal penalty of imprisonment or fine (or both) if this statement is not filed. The couple will be penalised for the submission of false information.
- The Registrar will inform the details of the live-in relations to the police station whose jurisdiction governs the couple.
Deterrence:
- The Bill misses the foundational reason for a live-in relationship, which is that it lacks the formal structure and obligations of a marriage.
- Those who are living together, therefore, enjoy autonomy in their consensual partnerships, which a regulated marriage does not. Erasing this much-needed distinction between these institutions is irrational.
- In a society that thrives on moral policing of young couples, the Bill, unsurprisingly, imposes a chilling effect on live-in partners and implicitly discourages such relationships. The involvement of the police accelerates this concern.
- Couples will be wary of entering into genuine relationships since a lack of compliance not only invites civil consequences, as regulatory laws routinely require, but also criminal ones.
Violation of Article 21:
- The one-month limit (whoever is in a live-in relationship for more than a month from the date of entering into such a relationship without submitting a statement will be punished) also restraints intimacy in the most direct of ways.
- It infringes on free decision making and an expression of feelings, protected under Article 21, which lays stress on the right to a dignified life.
- Individuals are constrained by the provisions of the Bill while entering into live-in relationships, which impedes the ability to make the deepest personal choices.
Unprincipled criminalisation:
- A democratic liberal state must have a clear policy on what it chooses to criminalise and what it does not. This policy must be in consonance with what the Constitution protects. The fact that social practices are undesired by a conservative majority is an insufficient reason for criminalisation.
- As the philosopher Joel Feinberg recognises, “Indeed, everything about a person that the criminal law should be concerned with is included in his morals. But not everything in a person’s morals should be the concern of the law.” Translating moral prejudices into criminal legislation leads to what is called ‘unprincipled criminalization’.
Section 497:
- A major illustration of such penalisation was the law on adultery which was contained in Section 497 of the erstwhile Indian Penal Code. The law, as it stood, discriminated on the basis of sex by punishing only men.
- But another crucial feature of the law was that it criminalised consensual sexual relations. By doing so, it actively worked to prevent intimate association and an expression of sexual autonomy.
- While striking down the law, in Joseph Shine vs Union of India (2018), the judiciary emphatically held: “Treating adultery [as] an offence, we are disposed to think, would tantamount to the State entering into a real private realm....” Moreover, it said that it is not the lookout of the state to interfere in the lives of individuals “which were within the sphere of his or her constitutionally protected rights of privacy and self-determination.”
Right to Privacy:
- Further, in Justice K.S. Puttaswamy and Anr. vs Union of India and Ors. (2017), the Supreme Court of India also clarified that “The destruction by the State of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary State action. Privacy of the body entitles an individual to the integrity of the physical aspects of personhood.”
Indirect discrimination:
- Inter-caste and inter-religious couples face the prospect of severe harassment by the authorities and social stigma in our country. These couples often experience violence, which includes honour killings, as data show.
- A proposed law with a high regulatory content on live-in relations is most likely to affect vulnerable couples first. They will be indirectly discriminated against and targeted for the reason that they belong to the ‘wrong’ ‘religion or ‘caste.’
Conclusion:
- With the Bill incorporating provisions against live-in relations, the state has just demonstrated that there is no limit to how intrusive it can be. With no hesitation, it has chosen to violate the constitutional rights granting autonomy, privacy and equality.
- It has also chosen to dishonour the primary political principle of a working democracy of treating consenting adults as partners who are capable of making decisions. Most regrettably, the state has successfully managed to usurp the most basic of human freedoms: the freedom to love.
