Social Morality vs. Constitutional Morality: A Case Study Of Violation Of The Rights Of Unmarried Couples

INTRODUCTION

Despite its obvious “modernist” tendencies, India as a culture has a fairly narrow perspective on social behavior. Indian courts have passed a series of progressive rulings aimed at changing this mindset and making our society more inclusive.1 As a result of these decisions, the right to privacy2, the right to sexual autonomy and physical integrity3, the right to education4, and the right to a clean and safe environment5have all been added to the scope of Part III of the Constitution. It is quite evident that Indian society is very puritanical about sexual intercourse before marriage however, no Indian law considers sex before marriage as an offense.6 This type of relationship is frequently despised, publicly humiliated, and even ostracised by their families.7 Police frequently utilize the Immoral Traffic (Prevention) Act of 1956 (“ITPA”) to harass unmarried couples.8

PROBLEMS IN ITPA
This Act was drafted to look after the victims of human trafficking and forced prostitution9 however, owing to poor drafting, vague amendments, and egregious misapplication by the state machinery, it has become a symbol of harassment.10 There have been instances where the police raid the hotels and detain unmarried couples in the name of public obscenity and prostitution.11People termed it as ‘Moral Policing’ and imprudent interference of the state in

1 Mohan V. Katarki, It’s Now Safe to say that Supreme Court of India is a Liberal Court, THE LEAFLET (Oct. 3, 2018), https://www.theleaflet.in/its-now-safe-to-say-that-the-supreme-court-of-india-is-a-liberal-court/. 2Justice K.S Puttaswamy v. Union of India, (2017) 10 SCC 1, ¶ 83.
3 Navtej Singh Johar v. Union of India, AIR 2018 SC 4321, ¶ 59; see also Joseph Shine v. Union of India, (2019) 3 SCC 39.
4 Mohini Jain v. the State of Karnataka, AIR 1992 SC 1858, ¶ 17.
5 Vellore Citizens’ Welfare Forum and State of Tamil Nadu v. Union of India, (1996) 5 SCC 647. 6 S. Khushboo v. Kanniammal, (2010) 5 SCC 600, ¶ 29.
7 Shivani Bahukhandi, No Sex Until Marriage! The Hypocrisy Around Premarital Sex, FEMINISM IN INDIA (Aug. 31, 2017), https://feminisminindia.com/2017/08/31/hypocrisy-pre marital-sex/.
8 Aarthi Pal et al., Comments on Trafficking of Persons (Prevention, Protection, and Rehabilitation) Bill, 2018 18-19 (Alt. Law Forum, Working Paper No. 1, 2018), https://altlawforum.org /publications/coalition-for-an inclusive-approach-on-the-trafficking-bill-2018/.
9 Shantanu Lakhotia, Immoral Traffic Prevention Act, 1956, An Example of ‘Legislate in Haste Amend at Leisure’, LIVE LAW (Nov. 9, 2020), https://www.livelaw.in/columns/immoraltraffic-prevention-act-1956-an example-of-legislate-in-haste-amend-at-leisure-165681.
10 Id.
11 See Payal Dhawan, Flesh trade: Residents question police raids on hotels, THE TIMES OF INDIA (Dec. 5, 2020), https://timesofindia.indiatimes.com/city/ludhiana/flesh-trade-residentsquestion-police-raids-on hotels/articleshow/74036291.cms; See also, Bizarre: OYO Rooms’ Coimbatore lodge sealed for allowing unmarried couples, THE INDIAN EXPRESS (Jun. 26, 2019), https://www.newindianexpress.com/states/tamil nadu/2019/jun/26/bizarre-oyo-rooms-lodge-sealed-for-allowing-unmarried-couples-1995417.html.

people’s life.12Special police officers are authorized to conduct searches under section 15 of the ITPA if they have “reasonable grounds” to think that an ITPA violation has been or is being committed on a premise.

QUESTION OF CONSTITUTIONAL MORALITY

As discussed above, the ITPA is basically aimed to uphold “Social Morality” by violating the rights of the people. However, the Hon’ble Supreme Court has upheld that no esoteric conceptions of “public morality” may influence or override constitutional principles.13

In Navtej Singh Johar’s14 case, the Supreme Court expounded on the idea of constitutional morality as follows:

“It needs no special emphasis to state that whenever the constitutional courts come across a situation of transgression or dereliction in the sphere of fundamental rights, which are also the basic human rights of a section, howsoever small part of the society, then it is for the constitutional courts to ensure, with the aid of judicial engagement and creativity, that constitutional morality prevails over social morality.”

Moreover, the right to privacy must be interpreted to include the rights to sexual autonomy, bodily integrity, and self-determination.15 In the light of the above, such laws must not only be repealed but also the state needs to take affirmative action in order to ensure the protection of the rights.

12 Adam Taylor, The latest target of India’s morality police: Unmarried couples in hotel rooms, THE WASHINGTON POST (Aug. 11, 2015), https://www.washingtonpost.com/news/worldvi ews/wp/2015/08/10/the-latest-target-of indias-morality-police-unmarried-couples-inhotel-rooms/.
13 Justice K.S Puttaswamy v. Union of India, (2017) 10 SCC 1, ¶ 46.
14 Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, ¶ 121.
15 Id.

Aditi Singh
Writer