|
The objection to inter-faith marriages, derisively called ‘love jihad’ by the Hindu right, goes against the very letter and spirit of the Indian Constitution, argues Arvind Narrain
A new offensive seems to be in the offing with the controversy building around what Hindutva groups have been calling 'Love Jihad' or 'Romeo Jihad'. What this phrase means, according to Hindutva activists, is the use by Muslim youth of 'love' as a weapon to 'convert' innocent Hindu girls. Within this understanding, any Hindu girl who converts to Islam or (as the Kerala Catholic Bishops Council alleges) Christianity, is a victim of 'love jihad', regardless of the fact that she is legally competent to marry. The orders of the high courts of Karnataka and Kerala have given this term greater currency in recent times. When these courts were confronted with cases of Hindu girls who decided to run away and marry Muslim boys and whose parents sought illegal custody of their major daughters, the courts converted an individual dispute between parental authority and children's autonomy into the fictional phenomenon called ‘love jihad’. The core constitutional objection to those who project 'love jihad' as a threat to Hindu society from Muslim youth is that they privilege public morality over constitutional morality. However much parents might object to their daughters choosing to marry someone from another community, the choice of the young person is constitutionally protected. The Indian Constitution is envisaged not just as an instrument to protect certain rights, but also as a mechanism which will facilitate reform in 'Indian society'. In particular the Preamble's promise of fraternity is nothing but an attack on Indian society as comprising a series of discrete and insular communities with no form of social interaction between them. In the light of this understanding of the Indian Constitution, laws such as the Special Marriage Act, 1954, which recognises marriages between girls over 18 and boys over 21, regardless of considerations of religion and caste, have a social role beyond facilitating the marriage of two parties who desire to marry each other. Dr Ambedkar recognised the importance of promoting inter-marriage for the very meaning of Indian democracy. As Dr Ambedkar puts it in The Annihilation of Caste, “Where society is already well knit by other ties, marriage is an ordinary incident of life. But where society is cut as under, marriage as a binding force becomes a matter of urgent necessity. The real remedy for breaking caste is inter-marriage. Nothing else will serve as the solvent of caste.” The role of laws such as the Special Marriage Act is clearly to promote the fulfilment of a vision of India premised on the idea that communities are not insular but instead have deep fraternal relations with each other. However, it is precisely this idea of India which is questioned at its very root by the fantastical creation of the Hindu right of the notion of the 'love jihad'. The notion is based on the premise that marriage is a relationship which individuals enter into within the bounds of community. The understanding is that, regardless of age, women are not competent to enter into a marital relationship based on love. It is meant to reinforce the idea of India as a conglomeration of discrete and insular communities perpetually at war with each other. Such an imagination of India is completely antithetical to any form of social interaction between communities, leave alone any form of inter-marriage. The reason why the concept of 'love jihad' has to be opposed is not only because it is contrary to the right to free association and intimacy guaranteed by Article 21, and the right to freedom of expression guaranteed by Article 19, and the right to equality guaranteed by Article 14, but also because it is a fundamental attack on the very premises of the constitutional order. If the idea of India as a constitutional democracy is to mean anything at all, at its minimum it must encompass an idea of citizens freely determining their lives, including the decision to marry across the boundaries of caste and religion. The Supreme Court, in Lata Singh vs State of UP, noted that “This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage.” However, it has to be noted that the ringing tones of the constitutional protection of the right to choose one's partner finds only imperfect protection in the civil law. The imperfection in the Special Marriage Act, 1954, lies in the fact that it mandates that, as a step prior to registration, notice of 30 days must be given of the intended marriage. The notice of the intended marriage as per Section 6(2) has to be published by affixing it in a conspicuous place in the office of the Marriage Officer. This requirement of notice and publication of the same has further conditions in case the individuals seeking to get married are not permanently residing within the jurisdiction of the Marriage Office in which they file their application to get married. As per Section 6(3), in such case, the notice to get married has to be transmitted to the place where the parties desirous of getting married are permanently residing, and displayed by the Marriage Officer in that locality in a prominent area. In short, the Special Marriage Act, though in principle recognising marriages across caste and religious boundaries, through its procedural barriers makes it impossible for those who wish to marry against determined parental opposition to actually do so. It is important to understand the procedural impediments in the Special Marriage Act because if a young couple in love would like to legalise their relationship in the teeth of parental opposition, the Special Marriage Act is a difficult and imperfect option. The safest option is really to get married under the relevant personal laws (which do not have the requirement of a public notice). Of course, the only way one can get married under the personal laws, if the two parties happen to be from different religions, is if one of the parties converts to the other’s religion. This might very well be one of the very practical reasons for 'conversion' before marriage. A more meaningful notion of democracy demands that we expand the range of real and effective choices open to people by amending the Special Marriage Act and doing away with the requirement of notice altogether. (Arvind Narrain is a lawyer and human rights activist with the Alternative Law Forum) Infochange News & Features, December 2009 |
