Updated: January 15, 2021 9:23:21 am
The Allahabad High Court judgment striking down provisions of the Special Marriage Act, 1954 that make it mandatory for couples to publish a 30-day public notice of their intent to marry — which often exposes them to vigilante and familial violence — is a significant and much-needed correction. By unambiguously underlining the primacy of individual autonomy, it rings a note of constitutional sanity at a time when anti-conversion ordinances in Uttar Pradesh and Madhya Pradesh have licensed reckless state intrusions on inter-personal relationships in the name of countering “love jihad”. A single-judge bench of the high court ruled that the compulsory notice inviting scrutiny and objections encroached on “the fundamental rights of liberty and privacy, including within its sphere freedom to choose for marriage without interference from state and non-state actors, of the persons concerned.” The Law Commission of India report in 2012 had made a similar recommendation to “keep a check on the high-handed and unwarranted interference by caste assemblies in sagotra, inter-caste or inter-religious marriages”.
In theory, at least, a secular state had envisioned the Special Marriage Act, 1954, as a means to clear a space for Indian citizens to marry outside the boundaries of religious and caste identity; to support a refashioning of identity in a society still in thrall to strict endogamy and communitarian identities. But in practice, the public notice ended up giving vigilante groups, families hostile to inter-faith and inter-caste unions, and the social prejudice of legal bureaucracy disproportionate powers to police young couples. As a result, many preferred to convert and marry under personal laws, rather than expose themselves to harassment. The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, which makes religious conversion for marriage a crime, has a more draconian version of this provision: It demands a 60-day notice to the district magistrate and a police inquiry to ascertain the “real” intention behind conversion.
Even today, inter-faith unions make up a minuscule minority of marriages. The HC judgment reaffirms the first principles that accord constitutional protection to this minority — and goes further. It is also a reminder that the weight of a series of landmark Supreme Court judgments in recent years pushes back against societal and state meddling in personal affairs. From rulings that recognise the right to privacy as a fundamental right (Puttaswamy v Union of India), the right to choose one’s partner (Hadiya case) and the ruling that decriminalised homosexuality, they form “a long chain of decisions growing stronger with time and firmly establishing personal liberty and privacy to be fundamental”. As several reports in this newspaper have shown, the anti-conversion ordinance in UP is being weaponised against precisely this guarantee, with disastrous consequences for the hard-won freedoms of young women and men. For BJP-ruled states that have embarked on a high-stakes campaign to police the intimate lives of citizens, the Allahabad High Court judgment is a reminder and a warning that the constitution remains the bulwark against an overreaching state.
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