Why we can’t have laws curtailing the right to marry

Proposed laws to prohibit the so-called practice of ‘love jihad’ violate Constitutional guarantees of right to life and liberty

Love jihad’ seems to be the issue of highest concern for many state governments today, despite the on-going pandemic, closure of schools and loss of livelihoods. Madhya Pradesh, Uttar Pradesh, and Haryana have announced that they will introduce laws to prohibit it; UP is working on an Ordinance declaring religious conversion for the sole purpose of marriage null and void and wants to make it punishable with imprisonment. In Karnataka, the chief minister has announced that he is considering a law banning religious conversion for the purpose of marriage. Assam too is working on it, while Himachal Pradesh already has a law against religious conversion for marriage.

As state governments undertake a dash to frame these laws, the question of whether such proposed laws will be valid seems to escape them. Within India’s robust Constitutional framework of guarantees to personal freedom and liberty, there is no space for laws that would have the effect of restricting the right to choose one’s partner or one’s right to marry.

But before we come to that, let’s look at the term ‘love jihad’ itself and see what it means.

Debunking 'love jihad'

To begin with, according to the Central government’s own admission there is no such thing as ‘love jihad’. The government told Parliament in February this year that no such term was defined under the law and no case pertaining to it had been reported by Central agencies.

Yet, the term has gained currency in popular culture and politics thanks to a covert, and now increasingly overt, campaign by Hindu fundamentalists, who have argued that Muslim men attempt to convert Hindu women to Islam through trickery and expressions of false love.

This makes it a highly charged term that accuses Muslim men of luring and dishonouring innocent Hindu girls and it is used to refer to everything from consensual elopement to allegations of stalking and rape. Hence the argument that Hindu women are coerced and falsely lured into religious conversions by promising marriage (‘love jihad’) and such conversions need to be prohibited through the enactment of laws.

It goes without saying that the real aim of these proposed laws is to ensure that women do not marry outside religion, caste and community. ‘Honour’ has always been used to thwart womens’ personal choices outside of their given caste and religion, whether it be in relation to marriage, having a relationship outside marriage, premarital pregnancy and so on. All these instances are treated as violating the ‘honour’ of the family and are responded to with violence against the woman and /or her chosen partner.

Such violence is usually referred to as ‘honour crimes’ or ‘honour killings’. Now, surprisingly, state governments are proposing laws justifying such codes of honour upon women and girls in the garb of ‘love jihad’.

Violating Constitutional guarantees

The freedom to marry a person of one’s choice is a fundamental right enshrined under the Constitution under Article 21 which guarantees the right to life and liberty and it cannot be curtailed by a law purporting to ban and criminalise religious conversions for marriage. In fact, it is surprising that these laws are at all proposed considering that there have been a spate of recent Supreme Court decisions reiterating the rights of individuals to choose partners of their choice without interference from the State.

One of the first of these cases was the Right to Privacy judgement in 2017, in which the Supreme Court held that the right to privacy includes the right to make intimate decisions relating to one’s personal life including the right to marry, the right to have relationships, the right to have children and the right to one’s faith, without interference from the State. Thereafter came the well-known Hadiya case in 2018 which played out the allegations of ‘love jihad’. Here Hadiya was a Hindu woman who had married a Muslim man and had converted to Islam and this marriage was challenged by her father.

Hadiya, an adult woman, had clearly expressed her view that she had chosen to marry her husband. The Supreme Court in a particularly strong pronouncement on the right to autonomy and choice, held that the choice of one’s partner whether within or outside marriage lies within the exclusive domain of each individual. It held that intimacies of marriage lie within a core zone of privacy, which cannot be interfered by the State.

An individual has the absolute right to choose a life partner and this cannot be affected by matters of faith. The right to autonomy and life is a fundamental right along with the Constitutional guarantees to each individual of the right freely to practise, profess and propagate the religion of their choice. The Constitution protects the autonomy of making such personal choices even when these choices are against the family, community or society.

In the same year, 2018, the Supreme Court in the Shakti Vahini case dealt with the serious issue of honour crimes against women where they had married outside of their caste and religion and suggested that there should be laws framed to prohibit honour killings and laid down several directions to the police to provide protection to women and couples facing honour crimes. Justice Deepak Misra in a very eloquent ruling held that “the choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice……If the right to express one’s own choice is obstructed, it would be extremely difficult to think of dignity in its sanctified completeness. When two adults marry out of their volition, they choose their path; they consummate their relationship; they feel that it is their goal and they have the right to do so. And it can unequivocally be stated that they have the right and any infringement of the said right is a constitutional violation.”

Moreover, such proposed laws banning conversion for the purpose of marriage are not just unconstitutional, they would also be extremely difficult to enforce. For any court to adjudicate whether any conversion was only for the purpose of marriage would be extremely difficult.

This brings to mind here the words of two very influential figures in my life. One is B R Ambedkar, who in his lecture “Castes in India” in 1916 stated that one of the most intrinsic characteristics of caste is endogamy which prohibits marriage outside of caste and the maintenance of caste in India is premised on the enforcement of strict endogamy. The other person is my late grand uncle, D M Popat, a lawyer and a freedom fighter, who gave a speech at my wedding when I married outside my community and caste, and said that if we want unity and equality in India it can only be done by insisting that our children marry outside caste, community and religion. In short, we should be focusing on dismantling the barriers of religion, caste and other divisions rather than bring up more barriers in these endeavours as is the attempt now.

(The writer is a Senior Advocate at the Supreme Court of India)