Such High Court orders are a departure from the consistent view taken by the Supreme Court that the right to life and liberty is paramount and that consensual sexual relationships must be respected.
The Supreme Court in Navtej Singh Johar v. Union of India stressed that the courts are expected to uphold the principles of the Constitution and not be guided by majoritarian views or popular perception.
“The Court has to be guided by the conception of constitutional morality and not by the societal morality,” the top court said in the landmark ruling that decriminalised homosexual sex.
About the same-sex couples in particular, the Court cautioned that members of the LGBT community must not be given step-motherly treatment under the garb of social morality.
“If this happens or if such a treatment to the LGBT community is allowed to persist, then the constitutional courts, which are under the obligation to protect the fundamental rights, would be failing in the discharge of their duty. A failure to do so would reduce the citizenry rights to a cipher.”
Similarly, the top court in the same-sex marriage case last year declared that the right to a relationship includes the right to choose a partner, cohabit and enjoy physical intimacy with them and to live the way they wish to.
“Whenever their right to enjoyment of such relationship is under threat of violence, the state is bound to extend necessary protection,” Justice S Ravindra Bhat said in the majority opinion.
Source: Barandbench
