Ujjawal v. State of Haryana

The judgement contradicts the past judgements of the Supreme Court. The Supreme Court has affirmed the right to choose a partner is part of the personal liberty protected under Article 21 of the Indian Constitution.[2]

In a 2018 case, Shafin Jahan versus Asokan K.M. and others, the two-judge bench consisting of then Chief Justice Dipak Misra and Justice A.M. Khanwilkar ruled that "the right to marry a person of one’s choice is integral to Article 21 of the Constitution". In their opinion, the judges noted that the social values and morals cannot be held above constitutionally guaranteed rights.[4] In another 2018 case, Shakti Vahini v. Union of India, the three-judge bench extended to protect not just married couples, but also the unmarried couples from any threat of violence. In this case, Supreme Court had made it imperative for the authorities to provide security to the couples.[5]

The social values and morals have their space but they are not above the constitutionally guaranteed freedom.

— CJI Dipak Misra and J A.M. Khanwilkar, Shafin Jahan versus Asokan K.M. & Ors., para 53, pp 39

With the exception Ujjawal v. State of Haryana and Devu G v. State Of Kerala, the high courts have almost always ruled in favour of the queer couple in similar cases. Including the cases, where judgements were pronounced after the verdict on Ujjawal v. State of Haryana.[7][8][9] In the case of Devu G v. State Of Kerala, the petitioners moved the supreme court which ordered the stay on Kerala High Court ruling.[10][11][12]

The Supreme Court, in the case of Deepika Singh v. Central Administrative Tribunal, ruled that "atypical families" are deserving of equal protection under law and benefits available under social welfare legislation.[13]

While decriminalizing homosexuality, the five-judge constitutional bench of Supreme Court highlighted the importance of "constitutional morality" over social morality.[6] Whereas, Justice Anil Kshetarpal gave importance to the "social morality" in his ruling.[2]

In a constitutional democracy like ours where the rule of law prevails, [rule of law] must not be allowed to be trampled by obscure notions of social morality which have no legal tenability.

— CJI Dipak Misra and J A.M. Khanwilkar, Navtej Singh Johar v. Union of India, para 120, pp 79

While ruling on two similar cases—Poonam Rani v. State of Uttar Pradesh, and Sultana Mirza v. State of Uttar Pradesh — Allahabad High Court held that the Constitutional Court is duty-bound to monitor and observe the constitutional morality as well as the rights of the citizens which are under threat only on account of the sexual orientation.[14][15]

This Court being a constitutional Court is duty-bound to monitor and observe the Constitutional morality as well as the rights of the citizens which are under threat only on account of the sexual orientation.

— Mahesh Chandra Tripathi J., Sanjay Kumar Pachori J., Poonam Rani v. State of Uttar Pradesh, pp. 2