“Publishing of notice of Intended Marriage”: A Privacy loophole under Special Marriage Act

[This is a post by Shreya Singh, Contributing Member.]

Marriage is considered as a sacred institution in India which is governed by codified personal laws. The Supreme Court of India has recently accepted a petition challenging the constitutionality of Section 6 under the Special Marriage Act, 1954 contending that the provision violates the Right to privacy, equality and non-discrimination vested in the Constitution of India. The Special Marriage Act, 1954 is distinct from other personal laws as it provides rules and regulations regarding marriage for the people of India and all Indian nationals in foreign countries, irrespective of the religion or faith followed by either party.

The Apex court has agreed to examine the provisions which obligate the Marriage Officer to publish a notice of an intended marriage allowing people to come forward and object the intended marriage within 30 days of the date of publication of the notice. The details include their names, date of birth, age, occupation, parents’ names and details, address, pin code, identity information, phone number, etc. which is a particular requirement of the Act. It also mentions that anyone can raise an objection to the marriage, and gives significant power to the marriage officer to investigate them as well.

The provision invades privacy and violates fundamental rights 

The right to privacy was recognised by the Supreme Court in the nine-judge bench landmark judgement in the case of K.S. Puttaswamy v. Union of India (2017). The Supreme court declared that right to privacy is a fundamental right and is an intrinsic part of the right to life and liberty under Article 21 of the Constitution of India, contending that it is the responsibility of the sovereign State/Nation to protect the privacy of an individual. Therefore, the State must not intervene in the personal lives of the people and the choices made by them which includes a person’s decision of whom he/she should marry. On the contrary, the said provisions of the Special marriage act, 1954 obligates the marriage officer to put personal details of the couple in the public domain for other people to decide whether the potential solemnisation of marriage is acceptable or not. 

The notice of marriage not only invades the private lives and liberty of the individuals but also jeopardizes the marriage as it may endanger the life or limb of the couple due to parental interference. In the case of Lata Singh v State of UP (2006), a two-judge bench of the apex court, in the landmark judgement stated as follows:

“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.”

In the case of Shakti Vahini v. Union of India(2018), the Supreme court held that the right to choose a life partner is a fundamental right under Article 21 and does not require the consent of anyone else other than the two legally competent persons (adults) for the solemnisation of marriage. The disclosure of marriage between inter-faith/inter-caste couples can invite religious conflicts amongst both the communities and may lead to physical violence and honour killings. A prominent example of such violence is the Khaap Panchayat in western Uttar Pradesh, Haryana and Delhi and the honour killings practised by them. The publishing of intended marriage mentioned in the Special Marriage Act may attract such communal conflicts and unfortunate blood-shed which will only create hatred amongst religious communities. 

It is observed that there is an inconsistency in the personal laws for the solemnisation of marriage under the Hindu Marriage Act,1955, does not demand a notice of intended marriage to be published which is contrary to the Special Marriage Act, 1954. This clearly proves the arbitrary nature of the laws and its failure in satisfying reasonable classification under Article 14 of the Constitution. The provision also violates Article 15 of the constitution of India as it promotes inequality in the society and discriminates people on grounds of religion, race, sex, caste and place of birth. 

Uniform Civil Code: Need of the hour 

The conflicting provisions in the personal laws have been a prominent issue in India. The conflicting requirements of multiple laws create unnecessary confusion in the judiciary and give rise to the arbitrary nature of judgements. The establishment of a Uniform Civil Code can bring relief to conflicts regarding the inconsistency of personal laws as it will apply equally to all the citizens of India regardless of their religion. It would help in bringing about a positive change in society by preventing communal violence and maintaining peace and harmony. 

Conclusion 

In India, marriage is hardly considered as a private affair between two consenting adults. It is believed in India that – “Marriage isn’t a union of two people; but the union of two communities/families”. Marriage is still a victim of patriarchy as it is driven by the notion that choosing a desired partner against the standards that have been set by society is unacceptable. The romanticisation of marriage being a topic of communal-union must not penetrate and affect the private lives and the choices made by individuals. 

There have been progressive decisions made by the state of Kerala regarding this issue as they have recently issued a circular to bring a halt to the publication of notice of marriage and this has been supported by high courts of Delhi and Rajasthan as well. The Supreme court must consider these progressive examples to make a rational decision and help in bringing about a significant change in Indian society. 

Gender Equality or Religious Beliefs: Conflicting Rights?

[This is a post by Panya Mathur, Contributing Member]

“Religion is regarded by the common people as true, by the wise as false, and by the rulers as useful.” -Lucius Annaeus Seneca

Through this article, I intend to introduce the concept of Right to Religion as well as Right to Equality as enshrined under the Constitution of India. I will be discussing the scope of these rights in detail and will be commenting briefly on the case of Indian Young Lawyers Association v. State of Kerala, popularly known as the Sabrimala Judgement, which is a landmark judgement that shines some light on the conflict between these fundamental rights.

Right to religious freedom

Articles 25 to 28 of the Constitution of India provide the right to freedom of religion. The right to practice any religion freely is provided under Article 25 of the Constitution of India.

Under Article 25, two distinct terms namely religion and conscience have been conceptualized. While the bare constitution makes no mention of these aforementioned terms, the jurisprudence of the courts has laid down comprehensively the meaning and boundaries of the term ‘religion’. In one of its earliest cases, Comm., Hindu Religious Endowments Madras v. Sri Lakshmindru Thirtha Swamiar of Sri Shirur Mutt, the Supreme Court has laid down extensively the meaning and ambit of ‘religion’,

“…religion is certainly a matter of faith with individuals or communities and not necessarily theistic… a religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well- being, but it would not be correct to say that religion is nothing else but a doctrine of belief…it may prescribe rituals and observances, and modes of worship…might even extend to matters of food and dress.”

On the other hand, Article 26 of the Constitution of India guarantees to every independent religious denomination the right to manage its affairs and maintain institutions for religious purposes and to manage and maintain the same. The interpretation of the term ‘religion’ for the purposes of Article 26 of the Constitution is a set of practices that have its belief in a basic set of doctrines and beliefs that the followers of such religion base their very spiritual well-being depend upon. The case of S.P. Mittal v. Union of India laid down a three-part test to determine whether a said group of religious worshippers can be construed to be a religious denomination for the purposes of Article 26 of the Constitution of India:

1.  Must be a collection of individuals who have a set of beliefs or doctrines which they regard as conducive to their spiritual well-being;

2.  A common organisation;

3. A distinctive name;

These two articles form the very basis of the fundamental right to practice a religion of choice to every citizen of the country. However, the rights enshrined under Article 25 are subject to public order, morality and health. Morality, in itself a very ambiguous and broad term, which gives rise to a plethora of interpretations across the population. Even the courts have failed to clarify the scope of the term ‘morality’ through its judgements and have resorted to an approach that differs from case to case.

Right to Equality

Article 14 of the Constitution of India mandates that the State shall not deny to any person equality before the law or equal protection of laws. It reads as:  “Equality before law. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.” The permissible classification must satisfy the twin sets, namely:

(i) the classification must be founded on an intelligible differential which distinguishes persons or things grouped together from others left out of the class, and;

(ii) such differentia must have a rational relation with the object sought to be achieved by the legislation.  

In the case of Budhan v. State of Bihar, the Hon’ble Court stated that the validity of the Act depends on the object of the legislation in view and whatever has a reasonable relation to the object or purpose of the legislation is a reasonable basis for classification of the objects coming under the purview of the enactment. The court further stated that what is necessary is that there must be a nexus between the basis of classification and the object of the Act under consideration. It has been a well-settled principle by the Supreme Court in the case of FN Balsara v. State of Bombay that in every form of classification, there would exist some form of inequality, and the mere existence of such inequality is not enough to violate Article 14 of the Constitution.

It can be very well conferred from the various judgements pronounced by the Supreme Court that if a particular belief is deeply rooted in the various practices of the worshippers of a particular religion, then there exists a reasonable nexus between the object of the legislation and the classification itself; therefore, making the religious practice valid, and not arbitrary.

However, it is pertinent to note that Equality and non-discrimination are certainly one facet of Constitutional Morality. However, the concept of equality and non- discrimination in matters of religion cannot be viewed in isolation. Constitutional morality requires the harmonization or balancing of all such rights, to ensure that the religious beliefs of none are obliterated or undermined. (Constitutional Morality viz-a-viz will be discussed later on this blog)

Sabarimala Judgment

A five-judge Constitutional bench of the Hon‘ble Supreme Court ruled 4:1 in favour of allowing women of all ages to enter the temple and found the practice prejudicial in its very essence and that it violates women‘s right to practice religion. It also ruled that the devotees of Lord Ayyappa do not constitute a separate religious denomination as they do not have any common religious tenets specific and different to themselves other than those which are customary to the Hindu religion. The verdict established the principle that individual freedom prevails over professed group rights, even in religious matters and relooks at the stigmatization of women devotees based on a medieval perspective that menstruation symbolizes impurity and pollution. It declares that the exclusion on the basis of impurity is a form of untouchability. Justice Indu Malhotra, however, delivered a dissenting opinion. She argued that constitutional morality in a secular polity, such as India, requires a ‘harmonisation‘ of various competing claims to fundamental rights. She stated that the Court must respect a religious denomination’s right to manage their internal affairs, regardless of whether their practices are rational or logical. Justice Indu Malhotra also highlighted that the primary reason for the imposition of this custom is the very well-being of the idol itself and that the well-being of the idol can be translated to the well-being of the devotees thereunder and since such ideas are distilled into the human brain to be a part of one’s religious practices itself, it becomes a part of the person’s faith and therefore, cannot be violated by demolishing such faith under the guise of superstition or irrationality.

This judgement gave rise to a rather heated debate where citizens began to criticize the apex court for overreaching its judicial powers. Academicians across the country believe that notions of rationality cannot be invoked in matters of religion by courts and the apex court should have refrained from doing so. But some people also celebrated the decision as they believed that the practices which legitimise menstrual taboos due to notions of purity and pollution, limit the ability of menstruating women to attain the freedom of movement, the right to education, and the right of entry to places of worship and eventually their access to the public sphere. It is, however, fairly disappointing that not a lot of attention was paid to the constitutional framework that was discussed in this case and how the principle of harmonious construction was held to be of grave importance.

A five-judge Constitutional bench of the Hon‘ble Supreme Court ruled 4:1 in favour of allowing women of all ages to enter the temple and found the practice prejudicial in its very essence and that it violates women‘s right to practice religion. It also ruled that the devotees of Lord Ayyappa do not constitute a separate religious denomination as they do not have any common religious tenets specific and different to themselves other than those which are customary to the Hindu religion. The verdict established the principle that individual freedom prevails over professed group rights, even in religious matters and relooks at the stigmatization of women devotees based on a medieval perspective that menstruation symbolizes impurity and pollution. It declares that the exclusion on the basis of impurity is a form of untouchability. Justice Indu Malhotra, however, delivered a dissenting opinion. She argued that constitutional morality in a secular polity, such as India, requires a ‘harmonisation‘ of various competing claims to fundamental rights. She stated that the Court must respect a religious denomination’s right to manage their internal affairs, regardless of whether their practices are rational or logical. Justice Indu Malhotra also highlighted that the primary reason for the imposition of this custom is the very well-being of the idol itself and that the well-being of the idol can be translated to the well-being of the devotees thereunder and since such ideas are distilled into the human brain to be a part of one’s religious practices itself, it becomes a part of the person’s faith and therefore, cannot be violated by demolishing such faith under the guise of superstition or irrationality.

This judgement gave rise to a rather heated debate where citizens began to criticize the apex court for overreaching its judicial powers. Academicians across the country believe that notions of rationality cannot be invoked in matters of religion by courts and the apex court should have refrained from doing so. But some people also celebrated the decision as they believed that the practices which legitimise menstrual taboos due to notions of purity and pollution, limit the ability of menstruating women to attain the freedom of movement, the right to education, and the right of entry to places of worship and eventually their access to the public sphere. It is, however, fairly disappointing that not a lot of attention was paid to the constitutional framework that was discussed in this case and how the principle of harmonious construction was held to be of grave importance.

Concluding Remarks

The philosophy of testing religious practices under the ambit of only Article 14, and the principles of rationality that it engages in, is in primary derogation of the Constitution in itself. By only applying the twin test laid down in Article 14 of the Constitution i.e. the fact that there should be a reasonable nexus between the object of the law and the very concept of intelligible differentia, the fundamental right protected under Article 25 of the Constitution of India is left untouched and undiscussed.  Furthermore, as discussed in the case of Bijoe Emanuel & Ors. v. State of Kerala & Ors, this Hon’ble Court laid down that the personal view of judges are irrelevant in ascertaining whether a particular religion or a belief followed therein should be protected under Article 25(1) of the Constitution of India. Unlike the Article 25 of the Constitution of India, which is subject to the other provisions of Part III of the Constitution, Article 26 is subject only to public order, morality, and health, and not to the other provisions of the Constitution of India. And as a result, the Fundamental Rights of the religious denominations are not subject to either Articles 14 or 15 of the Constitution. And thus, the principles of equality and non-discrimination as enunciated by Articles 14 and 15 are grossly inadequate in limiting the freedom to manage religious affairs under Article 26. The characterization of age may form a reasonable basis for the object of specific legislation. On satisfying both the parts of the twin test aforementioned, the statute must be held to be valid legislation. As already proved that the decision of the temple board is deeply based in the beliefs of the worshippers of the temple therein, there exists a reasonable nexus between the object of the legislation and the classification itself; therefore, making the classification valid, and not arbitrary.

(Note: In my next article, I will be focussing more on the aspect of essential religious practices as defined under Article 25 and its scope with special reference to Article 13 and 17 of the Constitution of India, in the light of the principles established by the Supreme Court in the Sabrimala Judgement. Access the Article here.)