In 1967, when Richard Loving challenged the ban on inter-racial marriages in the State of Virginia, the United States Supreme Court stated in Loving v. Virginia, “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State…We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”
A lot has been written about the new Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020. Most of it has been around the law being a violation of an individual’s right to marry a person of one’s choice and being restrictive of the fundamental right to life, autonomy and privacy. It is certainly all of it. In addition, I argue that this ordinance, which is nothing less than a draconian law, is a serious violation of the right to equality based on religion.
The UP ordinance prohibits any religious conversion due to coercion, force, undue influence, allurement, fraud or by marriage and makes such a marriage liable to be declared void. It also makes such an act of conversion a non-bailable criminal offence.
How is this a violation of the right to equality one might ask? The law would apply to people of all religions equally and would ban any kind of religious conversions for marriage. Merely because a law applies to persons of all religions, would not make the law fulfil the guarantee on equality. In Loving v. Virginia, too, merely because the law banned interracial marriages by persons of all races, the law was not held to be equal. The Uttar Pradesh ordinance violates the constitutional guarantee of equality because making religious conversions the sole ground for terming the marriage as void or for imposing the onerous requirements that parties in an inter-faith marriage have to comply with — such as giving prior notice of conversion and a post-conversion notice of declaration — is discrimination on the ground of religion. Our equality guarantees in the Constitution demand that all persons have equal protection of the law under Article 14. This goes together with the guarantee of non-discrimination under Article 15 which mandates that the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Imposing such restrictions on marriage only on the ground of religion amounts to discrimination and a violation of the right to equality.
Our equality jurisprudence also requires that the state can make separate classification if such classification has a reasonable nexus with the purpose of the law. Hence, what is the purpose of such a law by the UP government? There is no data produced by the state government on any harm from inter-faith marriages. In fact, the percentage of inter-religious marriages in the country is extremely minuscule. There has been no census data on the numbers of inter-faith marriages, but an analysis of “India Human Development Survey data, 2005” — a survey of 41,554 households in 1,503 villages and 971 urban neighbourhoods across India jointly organised by the National Council of Applied Economic Research — showed that only 2.21 per cent of all married women between the age of 15-49 had married outside their religion. This is an extremely small number and there is no empirical data whatsoever on harm, if any, resulting from inter-faith marriages after conversion.
A common question usually asked by supporters of the ordinance is that if people really love each other, what is the need to change their faith? They can get married under the Special Marriage Act 1954. This presumes that the Special Marriage Act is a law that makes it easy for couples from different personal laws to get married. Sadly, that is not so. It is, in fact, far more onerous than getting married under one’s personal laws. The Special Marriage Act has a requirement for putting up a public notice for 30 days before a couple is able to register their marriage. When parties are from different faiths, communities or castes, such a public notice can be a great source of danger and harm from their family members and the only option would be for one of the persons to convert to the religion of the other and get married. Curiously, therefore, most of our personal laws make it far easier to convert and get married. This requirement of a 30-day public notice under the Special Marriage Act has been challenged in multiple petitions before the Delhi High Court and the Supreme Court. Despite this, similar and more onerous requirements of an application to the district magistrate with a 60-day public notice and a police enquiry before conversion for marriage is mandated under the UP ordinance. This will ensure that neither conversion nor marriage will take place.
At the heart of this ordinance is a deep opposition to inter-faith marriages and the need to control women and girls under the garb of protecting them from being coerced into forced conversions by marriage. This deep-rooted opposition to inter-faith marriage is comparable to a similar deep-rooted opposition to inter-caste marriage, in that both stem from historical prejudices between specific communities. Recognising this, during the drafting of our Constitution, some members of the Sub-Committee on Fundamental Rights, especially the women members Rajkumari Amrit Kaur and Hansa Jivraj Mehta, advocated for the inclusion of inter-faith marriage as a fundamental right. They wanted to introduce a constitutional provision to require the state to remove any impediments to inter-faith marriages, so that the social stigma against such marriages is removed and couples who wish to enter into inter-faith marriages are enabled and protected. How far we have come from that position today in 2020.
This article first appeared in the print edition on December 18, 2020 under the title ‘Loving versus law’. Kothari is a Bengaluru-based senior advocate and executive director of Centre for Law & Policy Research.
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