Uttarakhand Uniform Civil Code dares right to form ‘intimate associations’

The Chief Justice of India had said the right to intimate associations came within the ambit of free speech and expression enshrined as a fundamental right under Article 19(c) of the Constitution

Uttarakhand Chief Minister Pushkar Singh Dhami greets supporters after the passage of the Uniform Civil Code Uttarakhand 2024 Bill in Dehradun on February 7, 2024. | Photo Credit: ANI

The Uniform Civil Code (UCC) passed in Uttarakhand on Wednesday, which requires consenting adults who intend to enter a live-in relationship to submit a “joint statement” to that effect before a “Registrar”, dares individuals’ freedom to form “intimate associations” without state monitoring or regulation.

Section 381 of the Uttarakhand’s common civil code empowers the Registrar to examine the statement submitted by prospective live-in partners, conduct an “enquiry” to check if the relationship between the couple is not a “prohibited” one and even summon them. A 30-day time is given for the State authority to enter the statement in a register and issue the couple a “registration certificate” which clears them to enter into a live-in relationship. The code is careful to note that the exercise is only “for the purposes of record”. A similar exercise is undertaken if the partner or both want to “terminate” the live-in relationship.

Chief Justice of India D.Y. Chandrachud, in his minority opinion while heading a Constitution Bench in Supriyo versus Union of India (same sex marriage case), refers to how State should not interfere with the freedom of consenting adults to form legitimate “intimate associations”.

Freedom of expression

The Chief Justice said the right to intimate associations came within the ambit of free speech and expression enshrined as a fundamental right under Article 19(c) of the Constitution. The CJI observed that the freedom of speech and expression was not limited to expressive words and included other forms of expression like that of their sexual identity, choice of partner and the expression of sexual desire to a consenting party.

“The freedom to choose a partner and the freedom to enjoy their society, which are essential components of the right to enter into a union [and the freedom of intimate association], would be rendered otiose if the relationship were to be discriminated against,” Chief Justice Chandrachud wrote.

The Chief Justice noted that courts have traditionally not permitted the State to interfere or regulate in certain kinds of personal relationships, thereby elevating it to a distinct freedom.

“One of the prominent ideas embraced by the freedom of intimate association is the opportunity it affords to enjoy the society of the other person who is a part of the relationship and the ability to choose to form and maintain such a relationship,” Chief Justice Chandrachud had noted.

The CJI had cautioned how the State could directly or indirectly infringe on the right of a person to enjoy the society of one’s partner. This could be done directly through a law prohibiting such relationships or by “refusing sufficient space to exercise that freedom”.

Live-in relationships are not prohibited in law. In fact, the Supreme Court, in S. Khushboo v. Kanniammal, had held that live-in relationships come within the ambit of right to life under Article 21 of the Constitution. The Protection of Women from Domestic Violence Act, 2005 states that a live-in relationship fell within the ambit of a domestic relationship.