02, May 2023 | CJP Team
On June 12, the Eknath Shinde led Maharashtra government will file a reply to a public interest litigation (PIL) filed by four rights groups in the state against the December 15, 2022 government resolution (GR) of the government constituting a committee to monitor inter-religious marriages. The GR was previously challenged by Samajwadi party, MLA in a write petition in the Bombay High Court which is pending.
The present PIL was filed by the four organisations and listed before a division bench of the Bombay High Court, led by Active Chief Justice SV Gangapurwala and Sandeep Mane. Senior advocate Mihir Desai is appearing for the petitioners assisted by Ms Devyani Kulrarni and Ms Rishika Agarwal. When the matter was called out today, the state sought time to file its reply.
The PIL, filed by four rights groups, Citizens for Justice & Peace (CJP), People’s Union for Civil Liberties (PUCL), Maharashtra, Forum Against the Oppression of Women (FAOW) and Indian Muslims for Secular Democracy (IMSD) challenges the December 15 GR on the ground that it is based on false assumptions of the real cause of intimate partner violence and argues that the right to privacy, the danger of state surveillance and executive overreach demand that this GR be first stayed, then quashed. Before this, the state government GR dated December 13, 2022 had also included the monitoring of inter-caste marriages but after a social and political uproar was amended.
The petition invokes Articles 14, 15, 19, 21 and 25 of the Constitution of India stating that they are clearly violated and also lays down several grounds for the challenge. Primarily among these are –apart from the very constitution of the Committee under the GR in question being ultra vires of constitutional provisions—the denial of independent agency to women, serious violations of the right to privacy, inherently faulty premises on violence faced by women in intimate relationships and remedial measures that are needed thereof and the targeting of already discriminated groups like religious minorities given the coercive prevalent socio-political situation where hate speech is singularly stigmatising and causing serious harm to them.
As such then, the mere existence of the Committee and its defined mandate, are also violative of the provisions of Right to Information Act, 2005 as the Committee as a third party is barred from accessing private information about women in inter-religious marriages, the petition argues.
In stark contravention to directives from the Supreme Court in the Shakti Vahini case (related to “honour” killings) in which directions to set up “safe houses and homes” for couples in inter-caste and inter-community marriages have been laid out, this executive action of the Eknath Shinde Shiv Sena-Bharatiya Janata Party (BJP) government contravenes fundamental rights and sets out to specifically target such relationships. The GR clearly violates the right to Privacy and any such encroachment on the right to privacy cannot be so mandated by an executive action; if at all only through legislation.
In fact the petition argues that there is urgent need to set aside the government resolution that gives power to the Committee set up to “provide safety and security to inter-faith couples”, in light of the increasing number of killings in the name of honour and attacks on such couples. It is stated that attack on such couples is a routine incident in the country, and the workings of the Committee will further enable scrutiny towards such couples.
Significantly, the petition, details statistics of violence experienced by women in intimate relationships and underlines that religion, or the faith of one partner is not the cause. It is patriarchy.
The language of “protection against abuse and estrangement from family” used to justify this GR only in the case of inter-community (religious) marriages in fact defies and denies the reality where facts and data show (say the petitioners) that intimate partnership violence only happens within such relationships. In fact findings from both the the World Health Organisation (WHO) and even the National Family Health Survey (NFHS) 2019-2021 state that around 45% of women and 44% of men believe that a husband is justified in beating his wife in specified circumstances. Twenty-nine percent of women age 18-49 have experienced physical violence since age 15, and 6 percent have ever experienced sexual violence in their lifetime. Three percent of even-pregnant women age 18-49 have experienced physical violence during any pregnancy. A research study (IIPS, 2017) categorically stipulated that ‘spousal violence cuts across class, caste and community’ and women in rural areas (36 per cent) are more likely to experience one or more forms of spousal violence than those in urban areas (28 per cent). That these figures clearly show that it is inherent patriarchy within society that is responsible for violence against girls and women, within and outside marriage.
Most pertinently, petitioners make the strong argument that any such measures to protect women within relationships, and to provide them counselling already exist in statutes such as the Protection of Women from Domestic Violence Act, 2005 (PWDA). Any aggrieved person can seek shelter under Section 6 of this act, and it is the duty of the shelter homes to provide shelter. It took over two decades for the women’s movement to ensure that this law got enacted! For such executive actions, like the presently challenged GR to seek to bypass and overrule such legal mechanisms available to women under a specially enacted law, the Prevention of Domestic Violence Act, 2005 and sections of the Indian Penal Code, shows a desire to undermine these existing time-tested legal mechanisms, and for the State to actually take over the role of professional surveillance. Under these laws women can voluntarily approach lawyers and counsellors within their own right. This GR amounts to imposition, interference in the private life of citizens and extra-legal activism on the part of the government argue the petitioners.
Besides, apart from violating the rights of women and men in inter-religious marriages under Article 21 and 25 of the Indian Constitution, the GR seeks to curtail the privacy and personal liberty of such couples by subjecting them to State surveillance. The right to privacy guaranteed under the Constitution of India is not taken away merely because a woman has married outside her faith. That the right to privacy was unequivocally upheld in Justice K.S. Puttaswamy vs Union of India, wherein it was held that “privacy includes at its core, the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Personal choices governing a way of life are intrinsic to privacy”, and it is stated that the decision to monitor the private lives of interfaith couples is an inarguable violation of this judgement of the Hon’ble Supreme Court.
More than anything else the very existence of such a Government Resolution leaves interfaith couples extremely vulnerable to further harassment from their family and other vigilante grounds, because it makes available their personal information on a mere representation from the Committee. This is especially dangerous in light of the fact that men from minority religious communities are routinely attacked for marrying women from other religions. That the impugned Government Resolution will only make all women, and all young persons of different faiths, especially susceptible to threats, intimidation and violence by family, state and non-state actors.
The petition may be read here:
The petition has annexed a list of articles that show how vulnerable such women and couples have been to attacks, be it in Maharashtra or other states. That this Government Resolution also seeks to record information about couples who eloped and got married, and the documentation of such information is prone to be misused by the family members and other conservative members of the society. That such incidents are not uncommon in India, and therefore the documentation and making available of such sensitive data about the interfaith couples will ultimately lead to their harassment, and will not lead to fulfilment of goals as set out by the Government Resolutions.
Relying on a judgement of the Delhi High Court in Dhanak of Humanity vs State of NCT, wherein the Delhi High Court gave directions to provide protection to inter-faith couples and counselling to the parents from Delhi Commission for Women, the petition argues that the Maharashtra State is approaching the issue in an arcane manner. That instead of a new Committee for providing counselling to estranged and newly married women in inter-religious marriages what is that the State should look at strengthening the measures under the already existing statutory provisions.
As stated above, the Supreme Court of India in Shakti Vahini vs Union of India while adjudicating upon Articles 14, 19(1)(a) and 21 of the Indian Constitution vis a vis the right to marry a person of one’s choice held that when two adults consensually marry, it is a manifestation of their choice which is recognised under Article 19 and 21 of the Constitution. Such a right has constitutional sanction and thus needs protection and cannot succumb to class honour or group thinking which has no legitimacy. Thus, according to this judgement, the government resolution is in violation of the rights under Article 19 and 21 of the Constitution and thus, must be set aside.
Also in Laxmibai Chandragi vs State of Karnataka held that “consent of family is not necessary once two adult individuals agree to enter into a wedlock and that their consent has to be piously given primacy.” While underlining choice as an inextricable part of dignity, the Supreme Court said that dignity cannot be thought of when there is an erosion of choice. Thus, in light of this judgement, the Government Resolution has an effect of severely limiting the choice of inter-religious couples and therefore, must be set aside.
Lastly and as significantly, the December 15 GR is in violation of the principle of secularism which is a part of the basic structure of the Constitution, and also violative of the principle of fraternity which is a part of the Preamble of the Constitution. Besides, it is arbitrary, discriminatory and against the freedom of expression, right to privacy and violative of Articles 14, 15, 19, 21 and 25 of the Constitution of India. That in S.R. Bommai vs Union of India, the Supreme Court specifically laid down, “Our Constitution does not prohibit the practice of any religion either privately or publicly. Through the Preamble of the Constitution, the people of this country have solemnly resolved to constitute this country, among others, into a secular republic and to secure to all its citizens” Article 25 of the Constitution guarantees to all persons equally the freedom of conscience and the right freely to profess, practice and propagate religion subject to public order, morality and health and subject to the other Fundamental Rights and the State’s power to make any law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice.” That the Government Resolution directly contravenes the secular thread of this country, as also upheld in the aforementioned judgement of the Supreme Court of India.
Besides, the challenged Government Resolution is in violation the Indian Constitution and international laws and instruments viz Article 12 of the Universal Declaration of Human Rights (UDHR), Articles 3,6, 9, 17, 18, 23 and 26 of the International Covenant of Civil and Political Rights (ICCPR), 1976 to which India is a signatory. Petitioners crave leave to elaborate on this ground at the time of hearing of the Petition.
Hence the petitioners have prayed for a quashing and setting aside of the GR of December 15, 2022. the effect and implementation of the impugned Government Resolution dated 15.12.2022 and restrain the Respondent, their officers and subordinates from acting in furtherance to the impugned Government Resolutions.
On March 20, the earlier writ petition, Rais Shaikh vs State of Maharashtra Writ Petition (L) No. 6881 of 2023 was heard and the Bombay High Court had passed the following order:
“Prima facie, it appears that this Petition is in the nature of a Public Interest Litigation (“PIL”). Other than the Petitioner’s name and address, it has no statement of fact whatsoever relating to the Petitioner. It is unclear how the Petitioner is in any way personally concerned with the subject matter of the Petition. He may or may not have a case in the public interest, but a PIL is not within our roster, and therefore not within our jurisdiction. It is open to the Petitioner to obtain directions on the administrative side.”
This petition filed by Samajwadi Party MLA, Rais Shaikh states that the resolution is discriminatory against a particular religion and is violative of Articles 14 (right to equality), Article 15 (forbidding discrimination), 21 (right to life which includes the right to privacy), and 25.
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