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Tuesday, January 26, 2021

The Allahabad High Court stands up for personal liberty (Hindustan Times)

By Gautam Bhatia

 

The judgment of the Allahabad High Court represents an important judicial pushback against the dominant ideology of State interference in questions of marriage, including by empowering social and vigilante groups.

Indian laws — and the Indian State — have a long history of unwarranted interference in the private lives of individuals. One of the most egregious examples of this is the Special Marriage Act (SMA). It requires couples to notify marriage officers one month in advance of their marriage, and for marriage officers to publicise such a notification. SMA also allows for any person to “object” to the marriage on the basis that it (allegedly) violates provisions of the Act. It has been seen — repeatedly — that these provisions have allowed hostile families, as well as other groups, to interfere with the decision of individuals to marry, and pressure, browbeat, and coerce them to change their minds. This has been especially true of inter-faith marriages.



The basic issue is straightforward. If two individuals have taken the deeply personal — and intimate — decision to marry each other, it is not for anyone else — and especially not for vigilante groups — to interfere with that choice. But it is precisely this kind of extra-legal interference that is facilitated, and indeed, encouraged, by laws with reporting requirements of this kind.


However, in this context, a recent judgment of the Allahabad High Court, in Safiya Sultana v State of UP, assumes great significance. It was specifically contended in the case that because of ongoing issues surrounding the implementation of the Uttar Pradesh Prohibition of Unlawful Conversions Ordinance (popularly known as the “love jihad law”), the provisions of SMA required authoritative interpretation.



Justice Vivek Chaudhary observed that as SMA had been passed in 1954, it was important for the court to examine whether the social and legal landscape had changed in the intervening years. Relying on a Law Commission Report that had observed that SMA’s notice requirement led to “high handed or unwarranted interference”, which often took the form of social boycotts and harassment, and on numerous Supreme Court judgments that had emphasised the importance of individual autonomy and privacy in questions of marriage, he held that it was clear that the Constitution mandated “personal liberty and privacy to be fundamental rights including within their sphere right to choose partner without interference from State, family or society”.


In this context, given the social interference that was facilitated and sanctioned by the notice requirements of SMA, Justice Chaudhary held that those requirements would have to be read as voluntary, not mandatory. In other words, if a couple marrying under SMA did not want their details to be made public, they could not be compelled to do so.



As a significant number of marriages under SMA are inter-faith, the impact of this judgment cannot be understated.


The judgment of the Allahabad High Court represents an important judicial pushback against the dominant ideology of State interference in questions of marriage, including by empowering social and vigilante groups.


SMA’s notice requirements, of course, are not new. As the court observed, they were present at the very beginning, when the original SMA was introduced in 1872. However, arguably, it is these notice requirements that have formed the baseline of further intrusions (the infamous “love jihad” ordinance also has a similar notice requirement, and indeed, goes further by empowering the police to investigate into the “genuineness” of a religious conversion).


What is most important is what they signify — notice and reporting requirements convey a message to the world that decisions of the most intimate character are not for the individual to make, but must be ratified by society (which, in practical terms, means the dominant members of society). In practice, they leave individuals and couples with a stark choice — face the possibility of social persecution and violence, or give up your freedoms. These are not choices that a constitutional democracy should be asking its citizens to make.


Gautam Bhatia is a Delhi-based advocate The views expressed are personal.

Courtesy - Hindustan Times.

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