Judicial Moral Censure

Several High Court and Supreme Court judges have made remarks reflecting personal or social morality in cases concerning live-in relationships, same-sex relations, surrogacy, and divorce.

Judicial Moral Censure in Recent Judgments

  • Allahabad HC: A judge stated that live-in relationships lack social sanction and emphasized the need to protect moral values.
  • SC Justice BV Nagarathna: Observed that a single mother having a child outside marriage is not the societal norm.
  • Chandigarh HC: One judge called same-sex relationships "immoral," while another ruled that liberty cannot come at the cost of social fabric.
  • Calcutta HC: Controversial remark on adolescent girls controlling their sexual urges.

Constitutional vs. Personal Morality

  • The judiciary's increasing moral censure creates a chilling effect on individuals with alternative life experiences.
  • Navtej Singh Johar judgment (2018) decriminalized same-sex relationships, showing that law is evolving, yet moral judgments persist.
  • Courts should uphold constitutional morality over personal or societal morality.

Subjectivity of Morality in Personal Sphere

  • Morality is not absolute; cultural norms vary across India:
    • Maternal uncle-niece marriages are considered normal in South India but taboo elsewhere.
    • Polygamy is outlawed for Hindus but permitted for Muslims and some tribal communities.
    • Polyandry exists in certain tribes like Todas in Tamil Nadu.
Judicial Moral Censure

Law and Morality: A Necessary Separation

  • Law is based on pure reason and must not be dictated by subjective moral standards.
  • Society progresses through rational innovation rather than rigid traditions (Bertrand Russell).
  • Scientific temper (Article 51A(h) of the Constitution) requires challenging fixed notions to respect individual autonomy.

Role of Judiciary in a Constitutional Democracy

  • Courts must be the last hope for individuals seeking justice, not instruments of moral policing.
  • Judges should empathize with diverse individuals and adjudicate based on constitutional principles, not personal beliefs .