By Parsa Venkateshwar Rao Jr
The Uttar Pradesh government of Chief Minister Yogi Adityanath passed an ordinance on November 24 which made the coercive conversion and using duplicitous means for inter-faith marriages with punishment up to 10 years imprisonment.
It was no secret that the proposed law is meant to fight the Hindu right-wing party’s obsession with love marriages between Hindus and Muslims, especially Hindu girls marrying Muslim boys.
On November 11, a Division Bench of Allahabad High Court comprising Justices Pankaj Naqvi and Vivek Agarwal quashed an FIR against an inter-faith couple said that the right of two grownups to choose their life partner is part of the right to life as guaranteed under Article 21 of the Constitution.
The clash between the judiciary and the executive in the matter raises basic questions about how far and how much the state can intrude into the personal lives of people as such.
The BJP governments, both in the centre and the state, seem to believe that it is the duty of the government to protect the Hindus as a collectivity, which reflects the typical thinking of a right-wing party that privileges the group over the individual.
But the Constitution through the Fundamental Rights recognises only individuals. And this position is reflected in the view of the two judges when they said, “We do not see Priyanka Kharwar and Salamat (the petitioners) as Hindu and Muslim, rather as two grownup individuals who out of their own free will and choice are living together peacefully and happily over a year. The courts and constitutional courts, in particular, are enjoined to uphold life and liberty of an individual guaranteed under Article 21 of Constitution.”
State health minister Siddharth Nath Singh said the reason behind the ordinance was to maintain law and order and to protect the rights of women, especially from Scheduled Caste and Scheduled Tribe communities.
Singh’s reasoning is plausible because one of the obligations of the state is to maintain law and order, and if something is disturbing law and order it needs to intervene appropriately. But the question is whether the state can suppress the fundamental rights of the individuals to maintain law and order.
The state can do so in extreme situations, in times of war, in times of violent clashes between two groups or even individuals because it affects the lives of society at large.
But it cannot use it as a pretext to intervene in individual matters which is what a state is prone to do because as a seat of authority, and one of ultimate authority which is embodied in the concept of sovereignty, it is inclined to control every aspect of social life, including that of the individuals.
Marriage is a matter of individual choice but the individuality argument cannot be pressed to its logical extreme.
It would be natural that conservatives in a family and a group will oppose the marriage of two individuals from different groups and communities for a complex variety of reasons.
The individuals involved may face consequences like ostracisation by the family and community. And the individuals may be willing to face ostracisation. There is the possibility that the intensity of opposition by the family and group may weaken over time and it may even end in reconciliation. Where then does the state come into all this?
The state, and in this instance the Yogi government in UP, would argue that they are forced to intervene to protect vulnerable individuals, and here, the vulnerable individual is invariably the woman.
The problem becomes complicated because the examples that come up more often than not, seem to be those of Hindu girls marrying Muslim boys, and in many instances the Hindu girls becoming Muslims.
Would the issue be less of a problem if the individuals retain their respective inherited faiths? There is not much of a guarantee that it would be so because the two communities would continue to be hostile to the individuals involved in the marriage. This is so because there is a political tussle between the communities. There is the irrational fear among Hindu conservatives that if this trend of Hindu girls marrying Muslim boys and in many cases, converting to Islam were to continue, the Hindus would lose their numerical majority status.
It would surely be the case that if a Muslim girl were to marry a Hindu boy and convert to Hinduism, the Muslim conservatives may react in a similar fashion as their Hindu counterparts. And if the Muslims were in a majority they would use their political clout to pass a law prohibiting unfair means of luring Muslim girls into the Hindu fold. And if the Muslims are in a minority, the conservatives in the community may even argue that to preserve the community, inter-faith marriage should be prohibited.
This situation seems atavistic to many of us because we believe that we are living in a modern era, and these old religious affiliations should not affect relationships, including marriage, between individuals.
India is still struggling to get into the modern era because parties like the BJP still belong to the pre-modern period.
The constitution, the state apparatus is premised on individual rights, and the attempt to bend and twist the laws to serve community rights and identities creates disharmony in the polity.
There is a disjunction, and an explosive one at that, regarding mores between state and society. Neither of the two can be sacrificed at the altar of the other. The state must prevail in the public sphere, while society can continue to live in a time warp of its own.
The groups that are conservative have the protection of the law as much as the individuals. This will be an uneasy and brittle state of coexistence.
The State, including the courts, must protect the rights of the individuals and their right to break away from the norms and rules of the dominating groups. It should be made clear that a group can only command voluntary affiliation, and that it cannot force individuals to stay in the group. There are some acute problems inherent in this situation and must be dealt with as and when they arise.
The guiding principle is voluntariness. Any kind of force, whether on the individual or on the group, needs to be reined in. (IPA Service)
Courtesy: The Leaflet