Laws against Inter-faith marriage and Fundamental rights

Laws against Inter faith marriage and Fundamental rights

Synopsis– Uttar Pradesh recently passed an ordinance which criminalizes inter­faith marriages, which is against the exercise of the free will of individual citizens in India. 

Introduction-  

  • UP ordinance which criminalizes inter-faith marriages has set an extreme example, being followed by other states like MP.  
  • In these states’ other laws on slaughter of cattle, marriage, and religious conversions have been enacted targeted at minorities of the state.  
  • In Uttarakhand, a recent divergent view attracted an enquiry over a press release by district social welfare department that highlighted a scheme incentivizing  inter-faith and inter-caste marriages. 

How interfaith marriages were seen in the past  

  • First, Nehru’s view– Chaudhary charan singh in 1994, Sends a proposal to Prime Minister Nehru to pass a law that would ensure only those youth who married outside, or were prepared to marry outside, their caste be recruited in gazetted government services. 
  • Charan singh believed the intractable issue of caste required drastic measures to start the process of its disintegration.  
      • But Nehru disagrees with his proposal on account of freedom of choice of individuals to choose their life partner. 
  • Second, Kusubh Chandra sen’s view– The very first debate for legal marriage in India dates back to the 1860s, when the colonial State received a petition signed by Keshub Chandra Sen of Brahmo Samaj, to legitimise marriages amongst the members of Brahmo Samaj. The motive was to provide the Samaj the right to freely marry as per their ‘rites of conscience’. 
  • Third, Special Marriage Act, 1954– SMA is an Act of the Parliament of India enacted to provide a special form of marriage for the people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party. 

However, States such as Uttar Pradesh and Madhya Pradesh framing laws that target inter-faith marriage. 

The procedural requirements of the SMA such as the need to give prior notice, and allowance for objections, seem to be undermining its original intent by opening the doors to violent moral policing by vigilante groups. 

What are the issues related to these new laws? 

Interference by the State in an adult’s right to love and marry has a ‘chilling effect’ on freedoms

  • First, against personal liberty- These new laws intervene in the citizens’ personal liberty by interfering with the choice of their spouse.  
  • Second, Against the Right to Privacy– The level of state interference in a civil union, which is a solemnization of a relationship between two individuals, breaches the basic structure of the Constitution.  
  • Third, Hinder the individual’s Right to choose faith– According to Articles 25 to 28, an Indian citizen is guaranteed the freedom to practice any religion of his or her choice. The ordinance is a conflict with these rights as it limits the choice of the religion of a prospective spouse. 
  • Lastly, Patriarchal Roots- This shows the law has deep-seated patriarchal roots, wherein women are infantilized, placed under parental and community control, and denied the right to take life decisions, should those decisions not be agreeable to their guardians.

Constitution of India offers high principles for citizens to aspire for. Citizens may not have been lived up to these principles but it was the intent that individual try to achieve those principles by doing better to the society. Laws in questions are doing exact opposite by going against these principles.

Way forward-

Based on the judicial pronouncements it is clear that the Right to marry a person belongs to another faith is a Fundamental Right 

  • It is for the court to suo motu strike these laws down if it wants to preserve the basic structure of the constitutional edifice.
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