The enigma of "Love Jihad" and regulating laws.

[Author Nitish Rai Parwani is a law graduate and is pursuing masters in Constitutional and Criminal Law from National Law University, Delhi]

[Opinions are strictly based on legality. Any "moral" "ideological" "rosy" or "political" argument is not forwarded in the write-up.]

In recent times, several political and legal scholars are discussing that several state governments are geared up to bring a law regulating the inter-faith marriages of the nature what is called "Love Jihad". There is also a debate that whether this anticipated state action shall amount to curtailment on individual liberty and the very freedom to ‘love’? The mere connotation to describe a particular phenomenon of the personal domain, which happens to be inextricably intertwined with the public order, may have derived its genesis from either the religious fanaticism of one, or the political rhetoric of another; albeit this 'connotation' is not something of primary concern for a student of positive law. What needs to be analysed is, if a law [Hereinafter referred as ‘Regulating Act’] is enacted in order to regulate the religious conversion and inter-faith marriage, will it be constitutionally valid, or would it be ultra-vires to the Indian Constitution, in other words, will it be a disproportionate state intervention over the individual’s right to life.

In my humble opinion, this Regulating Act, in the shape and form in which I foresee it to be coming, would be constitutionally valid, for the reasons mentioned henceforth.

Shape and nature of the anticipated regulating law.

Before analysing the reasons, we need to see, what the shape and nature of the regulating law would be like [if there is no deviation from legal terminologies and expressions in the passion of political excitement]:

1. The Regulating Act would require that if a couple, where both partners adhere to different faiths/religion, wish to solemnise their marriage AND either of the partners intends to convert to the faith/religion of the other in relation to marriage, then an intimation would have to be given to the authorities (probably SDM office) in advance (maybe one month). The authority would examine and confirm the ‘free-consent' of the party who is getting converted, would invite and adjudicate upon the objections to the marriage, if any, and then permit and complete the procedure for the solemnising the marriage.
2. The focus of this Regulating Act won't be on marriage per se, but on the phenomenon of religious conversion. In other words, the raison-de-etre of this law would be to regulate the religious conversion and not the marriage of 'two consulting adult members'.

Issues:

Now, the issues/contentions which arise out of this are as follows:

1. If two adults of different faiths/religions wish to marry, will it be an offence?
2. Can the state regulate the marriage related issues of two individuals, and give a call/ notice for objections by anyone apart from the couple?
3. Why is the state intervening on the personal domain of two individuals who are consenting to marry each other?
4. Would this be prejudicial to any specific community?

Legal Submissions

Following are the submissions, on the aforementioned legal issues:

Issue-1.

Two consenting adults, irrespective of their religions, would be free to marry, just as they are allowed now. This law would regulate (and not prohibit) a situation where one of the partner/spouse (or to-be-spouse) converts his/her religion to the religion of another partner for the purpose of marriage.

a. Special Marriage Act,1954 already operates

In India, the marriage could be solemnised either according to personal laws or according to the Special Marriage Act, 1954 [‘SMA’, for short]. While the interfaith marriages can be solemnised under SMA without any religious conversion of any of the partner, the inter-faith marriages under personal laws are generally preceded by religious conversion, generally of the bride to the religion of the groom.

Now, even after passing of this regulating law, inter-faith the couple (when none of the partners converts to the religion of the other) can register their marriage under the Special Marriage Act, 1954 and this Regulating Act won’t be applicable in this case. Albeit, where the parties wish to solemnise their marriage under any of the personal laws i.e. Shariat or HMA, where one of the parties converts to the religion of another, then the Regulating Act would come into operation. Therefore, if a couple belongs to different faiths/religions, and wishes to marry while retaining their previous religious affiliation, the solemnisation of marriage would be completed in the same manner in which it is being done till now i.e. as per Special Marriage Act, 1954. Whereas, in the cases where there is religious conversion involved in the process, the Regulating Act would come into the picture. This would not mean that inter-faith marriage preceded or followed by conversion won’t be allowed or would be criminalised. This would only mean that while solemnising the marriage of this nature, a procedure enshrined under the Regulating Act would be required to be complied with. Now, whether the state has the authority, within constitutional limits, to notify this process, is discussed in the next issue.

Issue-2

The question of the constitutionality of the Regulating Act and intervention of the state is discussed in this issue. Will it be just on the part of the authorised officer to issue a public notice to invite objections, if any, to the proposed marriage, by anyone else apart from the consenting-adult couple?

a. Similar provision in other enactments related to marriage

Yes, it will be. Even according to the present position of law, section-6 of the Special Marriage Act [‘SMA’] has a provision of 30-day public notice and invitation to objections, if any, by the authorised officer before registration of marriage under the Act. This process of issuing public notice and entertaining objections to marriage ensures that the identity of the partners, their antecedents, and fulfilment of the valid conditions of marriage are verified. This also aids in ruling out the chances of polygamy, polyandry, misrepresentations and medical impediments in solemnising marriage.

Arguendo.- Reasonable classification test satisfied

The author is aware of the fact that this section-6 of SMA has been challenged in the Supreme Court, to the limited extent of privacy of parties. Even if, for the sake of argument, we presume that a part of this provision is severed out from Special Marriage Act at some later date, the provision in the Regulating Act would still be completely constitutional. This is because the ‘couple in which one of the partners convert the religion to that of another for the purpose of marriage’ is a class in itself, and since empirical data reflects certain cases of identity-misrepresentation and fraud in this class of marriages, a Regulating Act providing for verification of ‘voluntary-consent’ and identity of the partners would be meeting the reasonable classification test of Article 14.

b. Object to regulate the conversion of religion on the grounds of coercion, fraud, misappropriation, et al.

As discussed, the object of the regulating law would be to regulate the religious conversion by any of the partner to the religion of the other, for the purpose of marriage. The Regulating Act won’t be an impediment in choosing a life partner with free consent, irrespective of any legal variable. As far as conversion is considered, the Regulating Act would check the cases of religious conversion which, instead of being out of ‘free-consent’, are due to coercion, misrepresentation of fraud. The Supreme Court of India in Rev. Stainislaus v. State of Madhya Pradesh and Ors (1977 AIR 908), while upholding a couple of state enactments (by the state assemblies of Odisha and Madhya Pradesh) pertaining to regulation of religious conversion, held that while the right to practice, profess and propagate religion is a fundamental right, right to convert someone is not. If the state enacts a law to regulate religious conversion, it does not infringe any right under part-III of the Indian Constitution, albeit it would be the duty of the state to enact such law if there are incidents of public disorder arising out of religious conversion due to force, coercion, allurement, fraud, misrepresentation or by any manner incidental thereto.

c. Existence of legal provisions already penalising an action of this nature

The empirical data of the recent times, in several states, reflect that there have been reporting of cases where one of the partners is compelled to convert religion for the purpose of marriage, and often this is based on coercion, misrepresentation or fraud on the part of another partner. Under the present scheme of laws, these acts are already punishable. [Under the provisions of the Indian penal, for the offences of, in the permutations in which they are committed, ­inter-alia, Cheating/ Cheating by Personation, Rape (section 375 r/w section 90 IPC), Abduction for marriage (366 in specific), special cases of Forgery, and offences relating to marriage (part XX of IPC), and under the provisions of specific state enactments which prohibit forceful, coercive and deceitful religious conversion.] The enactment of the Regulating Act would ensure that these laws are consolidated and shaped in a manner to curb the specific offence of nature.

d. Non-bailable and cognisable.

Another argument which may arise related to the Regulating Act, if it is enacted as is presumed by legal media, is of it being Cognisable and Non-Bailable. This argument can be countered by drawing parallels with the existing law. Most of the aforementioned existing laws, under which acts of these nature would punishable, are already cognizable and non-bailable, so if any special law (Regulating Act), which consolidates these offences penalise the offence, is made cognisable and non-bailable, there is no legal impediment in it.

Issue-4.

The regulating law, as is expected, would apply to all cases of inter-faith marriage, where partners are of different faiths/religion. There would be no classification based on either gender or religion. Wherever the interfaith couple solemnises the marriage without either of them converting the religion, the SMA would apply. Whereas in cases where one partner converts to the religion of the other, the Regulating Act would apply. This would, in no manner, be prejudicial to any community, faith or gender.