06, Jan 2021 | Nishchaya Nigam
The present paper aims to understand the legal jurisprudence around interfaith marriages in India by analysing recent legislations passed by several States. It further discusses the roots of such legislations, ideology behind them and what purpose they seek to achieve viś-a-viś the secular Special Marriage Act which is already in effect. The author tries to critically examine the existing and new laws in an effort to bring forth several procedural and fundamental flaws in the system in the light of domestic and international statutes and precedents that govern the subject and their impact on the communal harmony of the country as it plays with the nuts and bolts of Indian Democracy.
You can never be wise and be in love at the same time.”
— Bob Dylan
‘World’s Largest Democracy’, a global tag India acclaimed with the adoption of its Constitution on January 26, 1950 by endorsing a form of government which stood as a unique balance of federalism and the unitary structure, has borne the label proudly until the head of NITI Aayog made a jibe on the democratic fabric of the nation by calling it as ‘too much Democracy’. Such remarks coming from the influential think tank flags the drastic change the country has undergone in its 73 years of independence. No doubt with the rise of right wing politics in the National and Global sphere, the Indian polity underwent the expected change too. Out of the many underpinnings of the Hindutva right’s in India is the call for disapproving of inter- faith marriages so as to repress the minority religions of the country. Although several religion specific theories have been propagated to denote interfaith relationships in a colourable manner as mala fide and tools of conversion, Islamic interactions with other religions are being addressed in the name of ‘Love-Jihad’.
To set a point of reference for this paper, it is essential to throw light on the birth of this concept being used as a dynamite for widening the crack of communal disharmony. The seed for such legislations has been planted in recent times and occupied centre-stage during the BJP-led National Democratic Alliance, ever since they came into power in 2014. What further magnifies the issue is the fact that irrespective of the murky intentions these laws aim to resolve for the state, there already existed anti-conversion laws legislated to curb forceful conversions since the 1960s. Hence, the new batch has undergone severe criticism for the shaded state objectives they aim to achieve, apart from violating all personal freedoms that the state is prohibited from encroaching upon (Fundamental Rights in Part III of the Constitution of India). With five prominent states led by Bharatiya Janata Party (BJP) deciding to pass independent laws on prohibition of inter-faith marriages, the Right to Freedom of Marriage in this secular democratic republic has taken a big hit. Such laws although created in complete compliance with the procedure established by law, the intent of these proposed laws is suspicious as it seeks to target conversion, not just marriage.
The illusion of ‘Love Jihad’ has led violence and intimidation by police and non-state actors. The ‘Love Jihad’ laws legitimise un-constitutional, anti-minority and misogynistic beliefs, and help further the hateful, communal agenda of extremists. CJP is challenging these laws as they impinge upon the privacy, freedoms and autonomy of consenting adults. Help CJP fight for equality and choice. Donate now to denounce Love Jihad and keep #LoveAzaad.
An interesting analysis by Oesch1 on the rise of right-wing parties gaining traction in states where the majority of the population is working-class, brings forward a few essential factors that sufficiently explain the nature of Indian polity as we see it today. Firstly, the existence of economic anxiety due to large-scale presence of minorities is perceived as a ‘threat to jobs’ and welfare of the working class. Secondly, cultural anxiety due to minorities and liberals instills a fear of a ‘new’ culture replacing an ‘older’ one that such people hold so dear. Lastly, importance of the conservative population for fuelling anger at the Muslims for the partition of their motherland or ‘Bharat Mata’ in 1947, the anger at secularists at the imposition of the Hindu Code Bills in the 1950s and the general deterioration of the economy in the 1970s all led to the recruitment of radicalised, unemployed youth by the Bharatiya Janata Party, who showed them a violent and targeted means of expressing their anger on the minorities.2 Drawing from the analysis by Oesch, cultural questions of identity are more important to this working-class electorate than economic questions of access to or re-distribution of resources, thus pointing to the fact that an opportunistic politics, not a progressive politics, preceded the rise of right-wing politics in India.
1 Oesch, Daniel. “Explaining Workers’ Support for Right-Wing Populist Parties in Western Europe: Evidence from Austria, Belgium, France, Norway, and Switzerland – Daniel Oesch, 2008.” SAGE Journals, 1 Jan. 1970, journals.sagepub.com/doi/10.1177/0192512107088390.
2 Tribune. “Why Is the World Embracing Right Wing Politics?” The Express Tribune, Tribune, 21 Jan. 2020, tribune.com.pk/article/93205/why-is-the-world-embracing-right-wing-politics.
Love Jihad – The definition and the narrative
“The narrative of Love Jihad seeks to popularize the myth of Hindu culture as under siege, Hindu women as vulnerable, and justify the Hindu male as the protector-aggressor,” says Angana Chatterji of the Centre for Race and Gender at the University of California, Berkeley. She further explains, “This law will likely signal that religion-based violence, caste oppression, and sexual violence are tools to champion nationalism and patriotism.”3 The coinage of the term gained national prominence in 2009 and its origins can be traced back to Kerala and the coastal belt of Karnataka. According to the Kerala Catholic Bishops Council, by October 2009, up to 4,500 girls in Kerala had been targeted, whereas Hindu Janajagruti Samiti claimed that 30,000 girls had been converted in Karnataka alone. Following the controversy’s initial blow-out in 2009, it surfaced again in 2010, 2011 and 2014. On June 25, 2014, then Kerala Chief Minister Oommen Chandy informed the state legislature that 2,667 young women were converted to Islam in the state since 2006. However, he stated that there was no evidence for any of them being forced conversions, and that fears of ‘love jihad’ were “baseless.” Several official police investigations in both the states had found no evidence of forceful conversions and ultimately stopped the probe.4 Simply put, ‘Love Jihad’ is a conspiracy theory of the right-wing, which claims that Muslim men feign love to non-Muslim, especially Hindu women to induce them to convert to Islam with an intention to increase their population. However, what is pertinent is that no official agency has come forward with a definition or any data to substantiate the claims.
3 Perrigo, Billy. “Uttar Pradesh Passes Law Based on ‘Love Jihad’ Conspiracy.” Time, Time, 26 Nov. 2020, time.com/5915579/love-jihad-uttar-pradesh.
4 DH News Service. “Kerala Police Chief Denies Confirming ‘Love Jihad’ in State.” Deccan Herald, DH News Service, 27 Aug. 2017, www.deccanherald.com/national/kerala-police-chief-denies- confirming-love-jihad-in-state-606661.html.
Inter-faith marriages and India – The Backdrop
On a scale of 0-2, India scored a moderate 1 in the global index for freedom of marriage, as per the data analysed by the U.S Department of State for the years 2009-2017.5 In the formal sense, India allows for freedom of marriage with separate statutes catering to religion-specific marriages and inter- religion marriages via the Special Marriage Act. However, there are reports of discrimination practiced based on caste, class, religion apart from several
cases of marriages leading to honour killings.6 With the introduction of new laws further curbing and penalising inter-faith marriages, it’s only a matter of time when the largest democracy in the world will be compared with religious extremist states like Afghanistan, Iraq, Iran and Syria etc., to name just a few.
The National Census does not record any statistic about interfaith marriages in India, however “The India Human Development Survey 2005 (IHDS)” which surveyed 41,554 households in 1503 villages and 971 urban neighbourhoods across India helped uncover some interesting conclusions worthy of note.7 According to the survey, only about 2.2% of unions are interfaith marriages, categorised under the head ‘Extremely Rare’. The road for mixed faith marriages widens for women as one moves from rural to urban areas. Inter-faith marriages account up to 2.9 per cent in urban areas as compared to 1.8 per cent in rural areas, indicating an increase in acceptability of diversity and reduced impact of societal factors causing hindrances. It is substantiated by the reasoning that lack of socio-cultural assimilation of communities at the rural level are the root cause for backwardness in the mindset, adding to the communal divide.
5 “Freedom of Marriage World Table.” Freedom of Marriage World Map, marriage.hiddush.org/ table.
6 U.S. Department of State, U.S. Department of State, 2009-2017.state.gov/j/drl/rls/hrrpt/ humanrightsreport//index.htm.
7 Shaikh, Zeeshan. “Explained: What a Study in 2013 Revealed about Interfaith Marriages in India.” The Indian Express, 22 Oct. 2020, indianexpress.com/article/explained/explained-what- a-2013-study-revealed-about-interfaith-marriages-6742991/.
As we delve deeper into this data, it can be noticed, the probability of women marrying outside their parental religion is highest amongst Christians at 3.5 percent followed by Sikhs at 3.2 percent, Hindu’s at 1.5 percent and Muslims at 0.6 percent. This helps outline the extent of acceptability by these religions towards diversity and the concept of inter-faith marriage. On running an analysis based on demographic classification, it was found that Punjab led the list of ‘Highest Mixed Marriages’ at 7.8 percent due to close congruence in religious customs and practices followed by Sikhism and Hinduism. Jharkhand at 5.7 per cent and Andhra Pradesh at 4.9 per cent also have a high proportion of mixed marriages. The lowest percentage of mixed marriages were recorded in Rajasthan – 0.7 per cent, Chhattisgarh – 0.6 per cent and Bengal at 0.3 per cent.
Given these figures, ‘regulation of inter-faith marriage’ is a trivial and unimportant issue for the lawmakers as it fails to cause any noticeable turbulence in the social order at large. For instance, in the State of Uttar Pradesh, out of 14 alleged Love Jihad cases investigated by a Special Police Unit since August 2020, eight have already been found by the police to be based on relationships were consensual.8 The dangers of weaponising state agencies in matters of personal choice however is too great to ignore. It is also clear that these laws are not bona fide and in public interest.
While the above-mentioned data addresses inter-faith marriages in India, a closer reading of the same brings to light a fundamental filter which makes this research a possibility — ‘Survival’. Although unusual to be considered a factor unless it’s a wildlife project, survival is the quintessential factor when dealing with such sensitive topics, especially in a country like India. Survival of the couple and their matrimonial relation is that lone factor which could single handedly impact the above calculations. It thus becomes necessary to keep in mind that the above statistics only map (or count) those marriages which have sustained long enough to allow both the partners to participate in the survey. The survey ignores all other inter-faith marriages that ended with death of both or either member by way of murder, honour killing, kidnapping, abduction, aggressive social boycott etc., apart from legal ways of separation such as divorce. In addition to the illegal ways of putting an end to such marriages, it was found that a considerable count of killings at the rural level resulted from extrajudicial decisions by traditional unelected caste-based village assemblies, such as “khap panchayats,” that have no legal standing.9 An essential aspect frequently ignored by legislators while addressing the issue is the lack of teeth in existing marriage laws to ensure at least a safe incubator setup for inter-faith marriages that are pursued in good faith. Loosely framed laws, lack of social re-integration schemes, non-existence of a defined public order code bundled with sheer absence of any safety net in addressing social hurdles leaves the young hearts with no support. Several efforts have been made by the judiciary to fill these gaps left by the legislature time and again, but only to the extent it does not breach the sacred ‘Doctrine of Separation of Powers’. In 2018, a three-judge Supreme Court bench headed by then Chief Justice Deepak Misra while hearing a plea filed by the NGO Shakti Shalini [Shakti Vahini v. Union of India]10 to prevent “honour killings” passed extraordinary guidelines to protect couples. The guidelines directed all the States to set up special cells across the country to attend to calls from couples in distress, establish safe houses in each district, outlined remedial measures to ensure security to the couple and family apart from ensuring effective investigation. However, contrary to expectations, these guidelines remained on paper, never got implemented or, if implemented, then in a completely lopsided and arbitrary manner. Such gaps in the state machinery not only violate the Right of every citizen to choose a life-partner, they severely demolish the autonomy, privacy, human dignity and personal liberty guaranteed under Article 21 of the Constitution, thus denting the degree of Freedom of Marriage in the country.
8 “Exclusive: UP Police Report Contradicts Adityanath Claim of ‘Rise in Love Jihad’.” The Wire, thewire.in/communalism/up-police-report-adityanath-love-jihad-cases.
9 U.S. Department of State, U.S. Department of State, 2009-2017.state.gov/j/drl/rls/hrrpt/ humanrightsreport/index.htm?year=2015.
10 Shakti Vahini v. Union of India (2018) 7 SCC 192
Relevance of ‘Conversion’ in Inter-Faith Marriages and Special Marriage Act
Conversion is an easy way-out thanks to the existing marriage laws for interfaith couples in India which are legislated with such unworkable conditions that an honest person in love would prefer to give up his/her religious beliefs, embedded since birth, in-exchange for a married life free from state interference and policing.
The umbrella statute enacted for legalising and cultivating inter-faith marriages in India – ‘The Special Marriage Act, 1954’, leaves several traps and grey zones for young hearts to unite. The Special Marriage Act was enacted back in 1954 for those in interfaith relationships, or even those who just wanted a secular marriage, however the hostile process under the Act, suchlike couples must give 30-day notice, a copy of which is to be displayed in “some conspicuous place” in the office of the marriage officer, leaves them completely vulnerable to harassment and exploitation by family members apart from being targeted by other activist groups. Printing personal details of the couple on marriage documents, including public notices with names, addresses and phone numbers in public domain to invite objections, became a red flag for irate family or of late, even right-wing vigilante activists. Such sensitive information though protected under ‘Right to Privacy’11 under Article 21 of the Constitution of India, is found circulating all over the social media with several conspiracy theories knitted to them. Such visibility before the state leaves eloping couples vulnerable to harassment and often ending up murdered in the name of ‘honour killing’. Adding to the above chaos are some procedural compliances framed in complete ignorance of the practical issues faced by these couples seeking a registration under the Special Marriage Act. For instance, registration of civil marriages under the Act requires the participating pair to give an undertaking that no First Information Report (F.I.R) has been lodged against them. This is extremely unlikely in a country where neither inter-faith, inter-caste nor living-in couples can earn societal approval. Apart from religious groups and other third parties, the girl’s family often files complaints alleging kidnapping or abduction along with the anticipations of rape and sexual assault against their daughter’s or sister’s lovers, making it practically impossible for a couple to provide a bona fide undertaking.
Surprisingly, Section 19 of the Special Marriage Act declares that after a marriage is solemnised under this Act, wherein one of the two participants is a member of an undivided family who professes the Hindu, Buddhist, Sikh or Jaina religions, such marriage will result in his/her severance from such family, thus imputing the very act to be a moral wrong and penalising the couple irrespective of their acceptance by the families.
Apart from the procedural defects in the legal structure, a compelling reason for inter faith couples to pursue conversion over Special Marriage Act, specifically in cases where one of the parties is a non-Muslim is that the children born in such wedlock would otherwise be excluded from inheritance under Muslim law.
11 K.S Puttaswamy v. State of Kerala (2017) 10 SCC 1
It is due to these fallacies in the legal framework, individuals opt for religious conversion as a convenient and safer way to cohabit in union, as noted by the 2018 Law Commission Report. The continued suspicion by the state over those married under the Special Marriage Act robs the very purpose for being a law that should enable inter-caste and inter-religious marriages.
Laws on Inter-faith marriages and their Legal Challenges Left Answered:
Accompanying the latest U.P. ordinance, similarly placed laws have been cultivated previously in some way or other. The Uttarakhand Freedom of Religion Act implemented in the year 2018 heavily lends its verbatim and structure to the U.P. ordinance. A year prior to this, Rajasthan High Court issued guidelines on inter-faith marriages aiming to categorise such marriages that involve conversion, an offence; however they have the force of law now. Due to paucity of time and resources, this paper will try to decode the provisions of the Uttar Pradesh Ordinance on Inter-faith marriages as it is the latest work of legislation impacting the subject. Dr. N.C Asthana, retd. IPS Officer and DGP, Kerala terms the ordinance to be teeming with legal blunders as he lists the several inconsistencies that make it unreasonable, arbitrary and a bad law on the whole.12
Preamble: The preamble of the Ordinance, apart from prohibiting conversions by other illegal and forceful ways, also endorses to prohibit conversions by way of marriage. While it is understandable that a religious conversion may be sought by an individual in pursuance of an interfaith marriage, there is absolutely no religion which upholds automatic conversion of a person by way of an interfaith marriage. The above clumsiness by the state only creates confusion in the implementation for the authorities and is arbitrary in the eyes of law.
12 “Legal Howlers in UP’s ‘Anti-Conversion’ Law Expose Its Real Intent.” The Wire, thewire.in/ communalism/legal-howlers-in-ups-anti-conversion-law-expose-its-real-intent.
Religious Converter: Section 2(i) of the U.P ordinance introduces a new term to the existing literature on inter-faith marriages i.e. ‘Religion Convertor’. Conversions, though deemed likely to happen in the holy places, does not stress for any consultation of an expert in general nor does it require for any witnesses to testify to such change. Hence, by manufacturing the unworked concepts like religion converter, the state created an extra handle for harassing a larger number of people, injecting fear into godmen of other religions.
Act of Convincing: Section 3 of the UP Ordinance penalises any person who abets, convinces or conspires such conversion. Arbitrariness strikes against as the Ordinance fails to define ‘convincing’ while abetment and conspiracy are recognised in law. Absence of a definition provides open gateways to the state machinery for violation and misuse of the law as per its whims and fancies, making it unworkable for the victim to report and prosecute the issue before a Court of Law.
Eclipsing return to birth religion: The second proviso of Section 3, which provides that, if any person reconverts to his/her immediate previous religion, the same shall not be deemed to be a conversion under this Ordinance. The said proviso is not only paradoxical in nature but destroys the very intent of this ordinance for the simple fact that re-adoption of original religion can also be achieved by adopting pressure tactics and illegal ways. The Ordinance, by such clever applicability of Doctrine of Eclipse shadows the very acts it aims to penalise, thus creating a perfect paradox. The issue further intensifies as it becomes impossible for the courts to provide for a harmonious interpretation of the proviso to Section 3 vis-a-vis the preamble of the ordinance.
Safety Nets or Traps: Section 4 of the ordinance enables any person who is related to the one converting by blood, marriage or adoption to lodge a complaint. Apart from one’s parents and siblings, the section grants a Right to Complaint to all who stand ‘related by marriage’. On reading between the lines, it is discovered that the verbatim of the provision has discreetly widened the ambit of people who can qualify to be the complainant which was earlier limited only to the spouse. While it may seem justified and reasonable at first glance, it opens plenty of window for both the state players and relatives aggrieved by such marriages, to misuse their position successfully to hold an interfaith couple to ransom.
Gender Discriminatory: Section 5 of the Ordinance penalises any conversion, prescribing imprisonment which shall be at least 1 year but may extend up to 5 years, however if the victim is a woman, the sanction is enhanced with imprisonment of at least 2 years which may extend to 10 years. While the above reasoning holds good for minors and backward castes for being easy targets to mala fide allurement and other tactics of conversion, the law fails to contain any reasonability when differentiating on the basis of gender. By way of such unreasonable classification, the state is not only undermining the autonomy of a woman over her Right to Personal Liberty but also assesses them to be incapable of making the decisions regarding her private affairs like Religion and Marriage. The fact that the proviso classifies women to be at par with minors and socially backward classes, conveys the impression that women specifically Hindu women are believed to be intellectually inferior to men or equivalent to minors, thus incapable of providing their consent.
Unlimited powers to Police: Section 8(3) of the U.P ordinance, despite providing a safety net to families and relatives of the couple to bring forward any illegality before the local administration, mandates that the person concerned and the convertor have to submit notices following which the District Magistrate shall conduct an inquiry with regard to the real intention, purpose and cause of the proposed conversion, thus adding a tint of guilt and sinfulness to the whole process. Apart from the public embarrassment and sense of shame, a couple has to suffer several tactics of moral policing by the investigating agencies due to unlimited powers provided under the ordinance in the name of investigation.
Reverse Burden of Proof: The Section 12 of the U.P. ordinance is undoubtedly the Achilles heel, overturning the very basic principle of the criminal justice system. Interestingly, the ordinance shifts the burden of proof on the person who has ‘caused’ the conversion to show that the conversion was ‘lawful’, instead of the state showing it to be coercive. Such shift of onus not only frustrates the Criminal Procedure Code but stands against the settled principles of the Criminal Justice System.
Arbitrary Powers to Magistrate: Surprisingly, Section 9 of the U.P. Ordinance grants the District Magistrate judicial powers to declare conversion illegal and void if the couple fails to give away their Right to Privacy and safety by allowing him to post their sensitive details such as current permanent address, phone number etc. outside his office for entertaining public objections. This is further bundled with frequent attendance visits to be made before the District Magistrate in order to satisfy about the genuineness of marriage.
The only plausible reason behind creating such a cobweb of compliances is to make the whole task extremely difficult such that it repels people from the very idea of inter-faith marriage. Another paradox that emerges while analysing the scenario is in respect to the role essayed by local police. Instead of ensuring security and safety to the young couples, police have turned out to be the biggest threat for inter-faith marriages due to absolute arbitrary powers being supplied by the ordinance. The state machinery can now initiate sue moto investigation against such marriages merely on the basis of apprehension of some mala fide and does not require any complaint or evidence for the record.
- The Allahabad High Court13
In its recent setback to the UP ordinance held, “Right to live with a person of his/her choice irrespective of religion professed by them is intrinsic to right to life and personal liberty. Interference in a personal relationship would constitute a serious encroachment into the right to freedom of choice of the two individuals.” The judges said they did not see the couple “as Hindu and Muslim, rather as two grown-up individuals who out of their own free will and choice are living together peacefully and happily for over a year.” The bench upholding that the choice of a partner is the exclusive domain of the individual, warned that similar interferences in personal relationships “would constitute a serious encroachment into the right to freedom of choice of the two individuals”
- In Lata Singh v State of P. (2006)14, a two-judge bench of the apex court was unequivocal: “This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence.”
- The Karnataka High Court15while disposing-off a Writ petition of Habeas Corpus held essentially reiterated the settled principle that a major individual has the right to marry a person of his/her choice and the same is guaranteed by the inviolable Fundamental Rights enshrined in Part III of the Constitution of India. In a similar Writ Petition, the Delhi High Court16 held that an adult woman was free to reside wherever she wished and with whomever she wished and directed the police to counsel the petitioner and the parents not to take the law into their hands or threaten either the woman or the man.
- In K.S. Puttaswamy v UOI (2017) judgment, Apex Court read the “right of choice of a family life” as a fundamental right. Further, in the case of Shafin Jahan Ashok KM (2018)17, Court upheld the right to marry a person of his/her choice as a right under Article 21 of the Constitution. The court said, “Matters of dress and of food, of ideas and ideologies, of love and partnership, are within the central aspects of identity. The law may regulate (subject to constitutional compliance) the conditions of a valid marriage, as it may regulate the situations in which a marital tie can be ended or annulled…Matters of belief and faith, including whether to believe, are at the core of constitutional liberty. The Constitution exists for believers as well as for agnostics. The Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere…The right to marry a person of one’s choice is integral to Article 21 of the Constitution. The Constitution also guarantees the right to life. This right cannot be taken away, except through a law which is substantively and procedurally fair, just and reasonable. Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to make decisions on matters central to the pursuit of happiness.” The bench while setting the ratio of the judgment reiterated that social values and morals have their space but they are not above the constitutionally guaranteed freedom. It characterised such behaviour by the girl’s parents based on the idea of patriarchal autocracy and possibly self-obsession with the feeling that a female is a chattel.
14 Lata Singh v State of UP (2006) 5 SCC 475
17 Shafin Jahan v. Ashok KM, AIR 2018 SC 357
Indian being a signatory to the United Nations has consented to adhere with the rights espoused in the International Bill of Human Rights. Several human rights treaties including the Universal Declaration of Human Rights (UDHR), the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR) and Convention for Elimination of All Forms of Violence Against Women (CEDAW), have held that a woman’s consent to marriage is her inviolable right.
Article 12 of Universal Declaration of Human Right (UDHR) states that No one shall be subjected to arbitrary interference with his privacy, family, home or correspondence, nor to attacks upon his honour and reputation. Everyone has the right to the protection of the law against such interference or attacks.
Article 16 (b) of the Universal Declaration of Human Right (UDHR) requires the States Parties to take all appropriate measures to eliminate discrimination against women in all matters relating to marriage and family relations and in particular shall ensure, on a basis of equality of men and women the right to freely choose a spouse and to enter into marriage only with their free and full consent.
Article 23 of the International Covenant on Civil and Political Rights 1966 (ICCPR) requires that no marriage shall be entered into without the free and full consent of the intending spouses and is entitled to protection by society and the State.
Article 10 of the International Covenant on Economic, Social and Cultural Rights 1966 (ICESCR) calls the State Parties to ensure widest possible protection and assistance should be accorded to the family, which is the natural and fundamental group unit of society, particularly for its establishment.
Article 8 of the European Convention on Human Rights (ECHR) concerns an individual’s right to respect for their private and family life. Apex Court emphasised on the role of the public authorities in handling of such cases and declared that there shall be no interference by a public authority with the exercise of this right, except such as is in accordance with law and is necessary in a democratic society in the interests of national security, public safety, for the prevention of disorder and crime or for the protection of health or morals.
Withstanding the Constitutional Tests:
Article 14 of the Constitution of India provides for equality before the law and equal protection of the laws where the State is bound to protect every human being from inequality.18 For an act of legislature to become law of the land, it is essential for it to withstand the test of permissible classification which is further
based on two pronged tests19 laid down by the Supreme Court of India
time and time again, to fulfil the requirements of Art.14 of the Constitution:
- It should not be arbitrary, artificial or evasive. It should be based on an intelligible differentia, some real and substantial distinction, which distinguishes persons or things grouped together in the class from others left out.
- The differentia adopted as the basis of classification must have a rational or reasonable nexus with the object sought to be achieved by the statute in question.20
The above tests, though considered to be the ground norm tests of Reasonableness, are not the finest mesh to filter such laws. The shortcomings of the above test were explained by Prof. P.K Tripathi in his Telang lectures on
“Right to Equality”.21 Prof. P.K. Tripathi, after a careful analysis of several decisions of the Supreme Court applying nexus tests concluded that these tests were inappropriate in certain fields. He declassified the theory of reasonable classification to be based on three aspects which he chose to call ‘Why’, ‘What’ and ‘Whom’ elements respectively. According to him, the nexus tests notice only the object and criterion of classification and their mutual relation but ignore the “what” element and the relationship of this element with the other two, resulting in the “what” element being confused with the other “why” or “whom” elements, especially when the “object” or “why” element isn’t expressly and clearly indicated in the statute itself.
18 National Human Rights Commission v. State of Arunachal Pradesh, AIR 1996 SC 1234; (1996) 1 SCC 742. See also Faridabad CT Scan Centre v. D.G. Health Services, AIR 1997 SC 3801 : (1997) 7 SCC 752; Chairman Railway Board v. Chandrima das, AIR 2000 SC 988 : (2000) 2 SCC 465.
19 Union of India v. Ajay Wahi, (2010) II SCC 213: AIR 2010 SC 2603.
20 Luxmi Khandsari v. State of Uttar Pradesh, AIR 1981 SC 873, 891 : (1981) 2 SCC 600.
21 P.K. Tripathi, The Fiasco of Overruling, A.K. Gopalan and worse. Cited by Mahendra P. Singh in
Comparative Constitutional Law at p. 480.
He further concluded that nexus tests are not suitable at all for tackling certain situations such as towards those statutes which leave the executive free to pick and choose individuals towards the fulfilment of statutory policy. Simply put, it may be stated that nexus tests were found inadequate to meet the situation where very wide or unbridled discretion was given to the authorities to pick and choose persons for meting out different treatment through indicating clearly the legislative policy for achieving other objects of legislation in the statute itself. No doubt in this sphere the Supreme Court has not shown consistency even according to H.M. Seervai. After pointing out that Article 14 has two limbs, he observes that: “Equality before law, broadly speaking, means that except in a very limited class of cases a court administering justice is not concerned with the status or position of the parties appearing before it. The law is no respecter of persons.” As regards the second limb he observes that “the U.S. Supreme Court had evolved the doctrine of classification to explain and give a content to equal protection of laws.”
Test of Arbitrariness: If the classification does not satisfy the dual test of intelligible differentia and the test of rational relation between the object sought to be attained, the impugned legislation or executive action would plainly be arbitrary and therefore the guarantee of equality under Art.14 would be breached.22 This doctrine too has gained good criticism for being uncertain and non-conclusive. While most laws never reach the touchstone of this doctrine as they simply fail the two tests of reasonableness, some acts of the state inhibit prima facie arbitrariness in them to be eliminated by applying this test alone. Thus this leaves the doctrine hanging in the air with no certainty in the roadmap set by the courts.
As far as the recent inter-faith (‘love jihad’) laws are concerned, what the Courts need to do is simply employ the positivistic or activist stance of Article 14 as iterated by Justice P.N Bhagwati in the case of E.P. Royappa v. State of Tamil Nadu23, “Equality is a dynamic concept with many aspects and it cannot be ‘cribbed, cabined and confined’ within the traditional and doctrinaire limits. From the positivistic point of view equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies…. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14….”
In the light of the above evolution in jurisprudence, the latest approach for screening new laws on the pedestal of Constitutionality sets in motion both the test engines of Article 14. Despite the new doctrine of equality which interprets Article 14 to embody a guarantee against arbitrariness becoming established, the nexus tests have not been abandoned by the Supreme Court altogether.
While the nexus tests hold good for most state actions as they create a thickly fenced structure to block these (state actions). In the more limited yet crucial sphere of conferment of unchecked discretion on executive authorities to pick and choose the objects (persons) for meting out differential treatment, the doctrine of classification has not yielded satisfactory results.
22 Air India v. Nargesh Meerza, AIR 1981 SC 1829: (1981) 4 SCC 335: 1981 (II)LLJ 314. See also;
D.S Nakara v. Union of India, AIR 1983 SC 130
23 E.P. Royappa v. State of Tamil Nadu, AIR 1974 SCC 555
Acting as a beacon of hope in such a situation, the US Supreme Court has in the case of Loving v. Virginia24, observed that the Code of Virginia which contained extensive and detailed provisions towards preventing marriages between blacks and whites, and other races in the US was solely based on racial discrimination. While hearing the above case which was only one of many other similarly placed laws created by the US legislature in 1958, the US Supreme Court declined to be held back with unreasonableness in the logic supplied by the state, thus acting with prescience: snapping the kite before it could fly. It reasoned that a criminal law of the kind which made the colour of the skin a test of whether the conduct is a criminal offence or not, might be constitutionally valid if the State could show some overriding statutory purpose. In the absence of the same, nothing withholds the fort for such laws thus making them liable to be quashed. The US Supreme Court, while striking down the Virginia Code iterated that “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. To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment (equivalent to Art.14 of the Indian Constitution), is surely to deprive all the State’s citizens of liberty without due process of law”.
24 Loving v. Virginia, 388 U.S. 1 (1967)
In the Indian milieu, several laws targeting interfaith marriages have been speedily erected by the States in a colourable manner in the name of forceful conversions, purely discriminating on the basis of one’s religion. This shatters
all hopes for an interfaith couple to ever imagine a marital union with dignity and respect, forget claiming other fundamental rights. This bundled with wide discretion to the local authorities and administration makes these an extremely sensitive weapon in the hands of the State to destabilise communal harmony, thus destroying the very fabric of equality and non-discrimination in the largest democracy of the world.
(The author is an advocate in the Supreme Court of India)
- “Why Is the World Embracing Right Wing Politics?” The Express Tribune, Tribune, 21 Jan. 2020, tribune.com.pk/article/93205/why-is-the-world-embracing- right-wing-politics.
- Perrigo, “Uttar Pradesh Passes Law Based on ‘Love Jihad’ Conspiracy.” Time, Time, 26 Nov. 2020, time.com/5915579/love-jihad-uttar-pradesh.
- DH News Service. “Kerala Police Chief Denies Confirming ‘Love Jihad’ in State.” Deccan Herald, DH News Service, 27 Aug. 2017, deccanherald.com/national/ kerala-police-chief-denies-confirming-love-jihad-in-state-606661.html.
- “Freedom of Marriage World Table.” Freedom of Marriage World Map, hiddush.org/table.
- S. Department of State, U.S. Department of State, 2009-2017.state.gov/j/drl/rls/ hrrpt/humanrightsreport//index.htm.
- Shaikh, Zeeshan. “Explained: What a Study in 2013 Revealed about Interfaith Marriages in India.” The Indian Express, 22 Oct. 2020, com/article/ explained/explained-what-a-2013-study-revealed-about-interfaith- marriages-6742991/.
- “Exclusive: UP Police Report Contradicts Adityanath Claim of ‘Rise in Love Jihad’.” The Wire, thewire.in/communalism/up-police-report-adityanath-love-jihad-cases.
- “Legal Howlers in UP’s ‘Anti-Conversion’ Law Expose Its Real Intent.” The Wire, in/communalism/legal-howlers-in-ups-anti-conversion-law-expose-its-real- intent.
- “Allahabad High Court Judgment.” dt. 11.11.2020, Scribd, Scribd, scribd.com/ document/486633575/Allahabad-High-Court-Judgment.
- “Karnataka High Court Judgment.” dt. 27.11.2020, Scribd, Scribd, scribd.com/ document/486633662/Karnataka-High-Court-Judgment.
- “Delhi High Court Judgment.” dt. 24.11.2020, Scribd, Scribd, scribd.com/ document/486633778/Delhi-High-Court-Judgment.
- Shakti Vahini Union of India (2018) 7 SCC 192
- S Puttaswamy v. State of Kerala (2017) 10 SCC 1
- Lata Singh v State of UP (2006) 5 SCC 475
- Shafin Jahan Ashok KM, AIR 2018 SC 357
- Salamat Ansari & Ors. State of U.P & Ors., Crl. Mis W.P No. 11367 of 2020
- Wajeed Khan & v. Commissioner of Police, Bangalore City & Ors., W.P.H.C 92/2020
- Parveen v. State of NCT of Delhi & Ors., W.P (CRL.) 1729/2020
- National Human Rights Commission State of Arunachal Pradesh, AIR 1996 SC 1234; (1996) 1 SCC 742. See also Faridabad CT Scan Centre v. D.G. Health Services, AIR 1997 SC 3801 : (1997) 7 SCC 752; Chairman Railway Board v. Chandrima das, AIR 2000 SC 988 : (2000) 2 SCC 465.
- Union of India Ajay Wahi, (2010) II SCC 213: AIR 2010 SC 2603.
- Luxmi Khandsari State of Uttar Pradesh, AIR 1981 SC 873, 891 : (1981) 2 SCC 600.
- Air India Nargesh Meerza, AIR 1981 SC 1829: (1981) 4 SCC 335: 1981 (II)LLJ
- See also; D.S Nakara v. Union of India, AIR 1983 SC 130
- P. Royappa v. State of Tamil Nadu, AIR 1974 SCC 555
- Loving Virginia, 388 U.S. 1 (1967)
- Oesch, Daniel. “Explaining Workers’ Support for Right-Wing Populist Parties in Western Europe: Evidence from Austria, Belgium, France, Norway, and Switzerland
– Daniel Oesch, 2008.” SAGE Journals, 1 Jan. 1970, journals.sagepub.com/doi/ 10.1177/0192512107088390.
- K. Tripathi, The Fiasco of Overruling, A.K. Gopalan and worse. Cited by Mahendra P. Singh in Comparative Constitutional Law at p. 480.
- Pradhan, Saxena Poonam. Family Law Lectures: Family Law II. LexisNexis,
- Jain, Mahabir Prashad. Indian Constitutional LexisNexis, 2014.
- Mulla, Dinshah Fardunji. Mulla Principles of Mahomedan Law: Incorporating the Recent Triple Talaq Judgment along with Relevant Extracts. Lexis Nexis,
- Basu, Durga Das, and S. S. Subbramani. Commentary on the Constitution of India. LexisNexis,
Acts and International Conventions:
- The Constitution of India, 1950
- Special Marriage Act, 1954
- Code of Criminal Procedure, 1973
- Indian Penal Code, 1860
- Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020
- Uttarakhand Freedom of Religion Act, 2018
- Universal Declaration of Human Rights, 1948
- The International Covenant on Civil and Political Rights, 1976
- The International Covenant on Economic, Social and Cultural Rights, 1976
- Convention for Elimination of All Forms of Violence Against Women, 1981
- European Convention on Human Rights, 1953
- Interfaith Marriages
- Communal Harmony
- Freedom of Religion
- Right to Conversion
- Doctrine of Separation of Powers
- Love Jihad