—Kruthika R, LLM Student in Human Rights, Central European University, Vienna
Three federal states in India have passed laws that criminalise religious conversion for marriage without a prior state permission. And mandates a cumbersome procedure to obtain permission from the state to convert to another religion for marriage. These laws in effect attempt to tackle ‘Love Jihad’: a Hindu right-wing trope that claims that young Hindu women are duped into conversion to Islam in the guise of marriage. The anti-conversion laws in effect make it difficult for interfaith couples to get married.
Is religious conversion required for the solemnisation of inter-faith marriages in India? For interfaith couples, the Special Marriage Act, 1954 (‘SMA’) regulates the marriage procedure and solemnisation. Since its enactment, several of its provisions have been criticised. One of the most controversial provisions is regarding public notices. A couple intending to get married under the Act is required to submit a notice to the Marriage Officer who will publish it in a ‘conspicuous place in his office’. Any objections received need to be investigated and the Officer may refuse to solemnise the marriage if he/she finds merit in the objections.
The elaborate mechanism to get married has made marriage difficult for interfaith couples who do not have their parents’ support. Though SMA seems like a liberal and progressive law that recognises an individual’s freedom of choice, its administrative mechanisms have led to harassment based on communal and caste considerations. Recent research across several districts in Uttar Pradesh highlighted that only 56% of applications resulted in the solemnisation of marriage. Moreover, interfaith couples seem to prefer marriage under personal laws even if it requires religious conversion rather than being subjected to the burdensome bureaucratic structures and mechanisms of the SMA.
The Anti-Conversion Laws Violate Fundamental Rights
The anti-conversion laws infringe the right to marry. The Supreme Court of India has read this unenumerated right into several fundamental rights. In Justice K. S. Puttaswamy v. Union of India , J. Chandrachud characterised the right to privacy as one that includes the right to make personal choices including marriage: “the sanctity of family life, marriage, procreation, the home and sexual orientation”. A year later, the Supreme Court in Shafin Jahan v. Ashokan K.M categorically upheld the right to marry a person of one’s choice as a fundamental right. J. Chandrachud located this right in the fundamental right to life, personal liberty [Article 21, Constitution of India, 1950] and religious freedom [Article 25]. He observed: “The absolute right of an individual to choose a life partner is not in the least affected by matters of faith. The Constitution guarantees to each individual the right freely to practise, profess and propagate religion. Choices of faith and belief as indeed choices in matters of marriage lie within an area where individual autonomy is supreme”.
The states in India were motivated to pass the anti-conversion laws to curb ‘Love Jihad’ thereby disproportionately targeting individuals seeking to convert to Islam. This results in indirect discrimination based on religion. And gives rise to claims of violation of the right to equality [Article 14] and right against discrimination on the basis of religion [Article 15].
The anti-conversion laws disrespect and violate the foundational ideals of the Indian Constitution: liberty, equality and freedom. These values that the Preamble of the Constitution and the constitutional text embodies also make up an essential feature of a constitution securing and practicing a liberal democracy. It is not enough for these values to have place in the constitutional text: what is equally important is how these values animate through state and citizen action.
The anti-conversion laws currently stand challenged before the Supreme Court. However, the initial request for an interim stay on the application and operation of the laws was denied. The case has not moved further. On the other hand, the current political climate is encouraging other states governed by the nationalist, Hindu-right party to draft and pass similar legislations. Before this morphs into a national level exercise, it is imperative for the Supreme Court to declare on the constitutionality of these laws and nip the problem in the bud.
Suggested citation: Kruthika R, Indian Anti-Conversion Laws Have No Place in a Constitutional Democracy Int’l J. Const. L. Blog, Nov. 20, 2021, at: http://www.iconnectblog.com/2021/11/indian-anti-conversion-laws-have-no-place-in-a-constitutional-democracy/