Chaudhary Charan Singh, the former Prime Minister, made a proposal to Prime Minister Jawaharlal Nehru in 1954. As a Minister in the Uttar Pradesh government, he wanted Nehru to pass a law so that jobs as gazetted officers could only be for those who wanted to or had married outside their caste (https://bit.ly/3oc4ALv). Nehru turned the proposal down because this struck at the exercise of the free will of individual citizens in India.
Setting a precedent
It is an indicator of the distance travelled since; that Charan Singh’s State (Uttar Pradesh) has an ordinance which criminalises inter-faith marriages. The U.P. government’s focus is firmly on ‘protecting’ Hindu women from marrying Muslim men. It does this under the pretext of regulating religious conversions.
The law in U.P. has already set a precedent for other States ruled by the Bharatiya Janata Party (BJP) such as Madhya Pradesh. In another BJP-ruled State neighbouring U.P., namely Uttarakhand, a routine press release from the Social Welfare department highlighted a scheme incentivising inter-faith and inter-caste marriages. This threatened the communal world view being rapidly ushered in through a series of so-called ‘Freedom of Religion’ laws in BJP-ruled States. The press release was seen so out-of-step by the State government, that an inquiry was ordered by the Chief Minister.
In 1872, the colonial state drew up a law after it received petitions from Keshub Chandra Sen of the Brahmo Samaj demanding that people of different backgrounds be allowed to marry according to their ‘rites of conscience’. The Special Marriage Act, in 1954, took this further in independent India by taking away the colonial law’s requirement to renounce religion. However, it still allowed intrusion by the state, unlike under personal laws, by demanding notices to be put up in advance. This was done to ensure there were no living spouses or minors being married, but this clause was misused by communal social groups to stop such unions (https://bit.ly/3okStM4).
In BJP-ruled States, there are many other recent ‘laws’ — on slaughter of cattle, marriage, and religious conversions — which taken together, target Muslims, both by denying them shared social spaces and their rights as equal citizens of the republic. It also destroys the long-standing fraternity in everyday lives that has long defined India. The ordinance by U.P., the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, and the Madhya Pradesh Freedom of Religion Bill, 2020 are particularly vicious on at least four counts.
Fundamentally wrong
Under the Constitution, it is the individual citizen who has and exercises rights and obligations. But these new laws treat religious communities, instead of individual citizens, as basic entities. By taking away the agency that the Indian Constitution allows each individual to exercise, this fundamentally distorts the framework of our republic.
For those who argue that the Constitution does address communities when speaking of minority rights and untouchability, it is to only acknowledge and overcome social discrimination because that impedes the ability of those citizens to exercise their rights as individuals. By seeing the world as split between ‘Hindus’ and ‘Muslims’, a khap-ian universe, a fundamental modern characteristic of the guarantee of autonomy to all Indians as individuals is broken.
Violate privacy, choice rights
Second, these laws blatantly violate the Right to Privacy, which the Supreme Court of India in a much-lauded judgment in 2017, decreed to be fundamental. The level of state interference in a civil union, which is a solemnisation of a relationship between two individuals, breaches the basic structure of the Constitution.
Third, the provisions impede the exercise of an individual’s right to choose her faith without seeking state sanction. Under these new laws, everyone — from the police, local administration and communal groups and families — are given ample time to interfere and deny the individual, without any locus to do so. In matters of change of profession, nationalities, electoral choices and even political parties, no such interference is brought into play. The ruling by the Supreme Court (1977), which upheld earlier restrictions to convert by the States of Madhya Pradesh and Odisha (https://bit.ly/394c4tv), said it did so to penalise “conversion by force, fraud or by allurement. The other element is that every person has a right to profess his own religion and to act according to it. Any interference with that right of the other person by resorting to conversion by force or allurement cannot, in our opinion, be said to contravene Article 25(1) of the Constitution of India, as the article guarantees religious freedom subject to public health (https://bit.ly/2LjX8zm)”. By making “propagation” contentious, the 1977 ruling pushed back freedoms in Article 25, so the mass conversion of Dr. B.R. Ambedkar to Buddhism could invite a jail sentence! Instead of rescinding the 1977 ruling, these laws further criminalise an individual’s choice of faith.
Fourth, the basis of the new law is deeply patriarchal. The nightmare that India traversed in the 1920s, with competitive communalism fanning charges of Hindu betis in North India being taken away like cattle, are being relived now. The pernicious myth of ‘love jihad’ where adult women are seen as property, is not just a pamphlet or WhatsApp message. It is now the law. We saw a brief preview in 2017 of the dark consequences of the ‘Prohibition of Unlawful Conversion of Religion Ordinance, 2020’ when the law confronted Hadiya, a 25-year-old health professional from Kerala, for her marital choice a year after converting to Islam. This law targets Muslim men, but is also a living hell for Hindu women.
Cost of inaction
It is with good reason that India is said to have effected a social transformation, thanks to the values spelt out and written into the law of the Republic. The Constitution offered high principles to aspire for, which Indians may never fully live up to. But that may have been the intention, to set high standards and ensure we were always jumping just a little bit, to be better. All laws should meet that brief. However, these new laws do the opposite; they put state power and the law itself behind majoritarian communal biases which empower regressive social mores governing marriage and fellowship. Inter-religious marriages may be less than 2.5% of all marriages, but the promise they hold goes beyond numbers. They reaffirm the fundamental constitutional premise of all citizens being equal, besides promoting the ideals of freedom and fraternity.
It is diabolical
To fan rumours of ‘love jihad’ even as the government confirmed in Parliament that there was no evidence of it, is diabolical. But more than that, it is downright dangerous as it seeds mistrust, and changes fundamental and basic ground rules that all plural democracies must live by. It is for the court to suo motu strike these laws down if it wants to preserve the basic structure of the constitutional edifice.
In September 1935 when Hitler enacted the Nuremberg Race Laws, it was fear of the Mischling or the German-Jewish children of ‘mixed’ descent that haunted the Nazi mind obsessed with purity. At 50% Jew and 50% Aryan, they were a threat to Nazi ideas. Closely linked to preventing such marital and sexual unions was the Nazi belief in dodgy eugenics. The tragedy was that these laws were not protested enough when they were enacted. They ended up guiding Nazi racial policy for the remaining decade of the Reich (https://bit.ly/2JMo5LL).
We must never forget the price a society and a country pays for writing hate into law.
Seema Chishti is a journalist based in New Delhi
Published - January 06, 2021 12:02 am IST
