Tag: Puttaswamy Judgment

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(Un)Constitutionality of the U.P. Ordinance on Conversion: The Puttaswamy Judgment-II

I have discussed the Puttaswamy Judgment here and its impact on Right to Privacy and liberty. In this post, I will be analysing the controversial ordinance passed by the Uttar Pradesh Government in the light of the Puttaswamy judgment. Recently, the UP Government has passed an ordinance called the “UP Prohibition of unlawful conversion of Religion Ordinance, 2020”. This law has been given the colour of an ‘anti-conversion’ law.

“The Problem”: the Law

The law says that, in section 6, that “any marriage which was done for the sole purpose of unlawful conversion or vice versa” shall be void. This means that if someone converts his/her religion to marry the other person, then that marriage is null and void, even after both the adults have given their consent for the marriage. Through this law, the state is ‘regulating’ marriage and the conscience of the citizens as well (which is a fundamental right under 25 of the constitution). The state is deciding what is right or wrong for its citizens. This questions the whole legitimacy of the social contract between the citizens and the state – the question that how much the state can regulate? Can the state regulate the private affairs of an individual? A person’s conscience is the most private thing available to her – therefore – is the state regulating our mind and our conscience and can they do it? This ordinance, unfortunately so, does it.

Further, section 8 of the Act states that any person who wants to convert shall ask to declare the same before the magistrate (‘DM’) ‘sixty days’ before. Then, the DM shall conduct an enquiry with the help of police to know the “real intention” for conversion. Giving such unfettered discretion to the DM or the police will increase arbitrary denial of conversion/free conscience. The executive authorities are not judicially trained to determine the ‘intention’ of the person and hence, this will increase the vast amount of violation of constitutional provisions such as liberty and right to conscience of an individual. The social scientists and theorists will help us in understanding the mentality of the officers (and the society) when it comes to converting to a minority religion. Every citizen has a “right to convert”- by exercising their freedom of conscience- under Article 25 of the Constitution. When a person chooses to change his/her religion then that person uses her conscience and she knows what is right or wrong for her. Hence, this regulation of a persons’ conscience must be unconstitutional.

Forceful conversions must be stopped as it goes against the ‘human will and conscience’ but putting so many barriers between those conversions which are not forceful is sheer violation of the rights of an individual. Converting for the sole purpose of marriage is the choice of the individual and the choice made by an individual must not be constrained through various provisions of the law. Here the law has to function according to the social realities and the reality is that the people who convert their religions for marriage are usually those couples who are performing inter-faith marriages. There is already so much fear of social exclusion, honour killing and persecution by the families which makes it difficult for an individual to make his/her free choice. Those who have the will to make his ‘free choice’ are forced to face the law which puts a blockade on their free choice.

Puttaswamy Judgment and individual’s Right to Choose

A person has freedom of conscience as a fundamental right because it protects that person’s right from the disdain of the majority society and legislature. A person who is converting to a minority religion faces the grave dangers of discrimination, life and liberty for a simple reason that his to-be-belief does not accord with the mainstream. Further, converting to a particular religion is an intimate choice of an individual and displaying that on the notice board of the DM and ‘taking permission’ from the authorities violates the ‘right to take an intimate decision about oneself’.  

The law on anti-conversion can be defended only by the Supreme Court’s problematic judgment in Rev Stainislaus v State of Madhya Pradesh which is a 1977 ruling delivered by five judges of the Supreme Court. The Court in that judgment said, “What is freedom for one is freedom for the other in equal measure and there can, therefore, be no such thing as a fundamental right to convert any person to one’s religion.” This goes against the heart of the liberal constitutional idea. The judgment, in turns, misreads a person’s right to religion and freedom of conscience. In his three-volume book on Constitutional law, jurist Seervai argues that the “Supreme Court’s judgement is clearly wrong, is productive of the greatest public mischief and ought to be overruled.” Further, he argues, Chief Justice A N Ray “mistakenly believed that if A deliberately set out to convert B by propagating A’s religion, that would impinge on B’s “freedom of conscience”. But…the precise opposite is true: A’s propagation of his religion with a view to its being accepted by B gives an opportunity for B to exercise his free choice of a religion.”

Even in the constituent assembly, KM Munshi commented on the word ‘propagation’ and said:

“So long as religion is religion, conversion by the free exercise of the conscience has to be recognised. The word ‘propagate’ in this clause is nothing very much out of the way as some people think, nor is it fraught with dangerous consequences.”

When we propagate our religion to someone with a free mind, we are trying to persuade that person and in the consequence of it, that person uses his conscience to exercise his free choice whether she wants to convert or not. Hence, the state cannot restrict a person’s free choice to convert or not convert and the Supreme Court’s judgment in Stainislaus is ought to be overruled.

Further, the nine-judge bench in the Puttaswamy case held that “Privacy recognises the autonomy of the individual and the right of every person to make essential choices which affect the course of life.” (¶113) When a consenting adult agrees to marry another consenting adult, what they do is make an essential ‘intimate’ choice about their life which is protected by the Right to Privacy (Article 21). Similarly, when a person converts, for whatsoever reason like marriage, then that person exercises her right of freedom of conscience (Article 25)and right to make an essential choice. After the Puttaswamy judgment, the five judges ruling in Stainislaus deserve to be overruled as it is seriously flawed in its approach and it fails to recognise a person’s right to make intimate choices.

Conclusion

The UP Ordinance of 2020 invades an individual’s freedoms and rights guaranteed by the Constitution. It goes against the heart of the Constitution. The state has no right in intruding into someone’s private life and the choices they make. In a constitutional democracy, the citizens must be left free to make their choices and they have autonomy over their conscience. Therefore, policing citizens over the matters of religion will badly hurt India’s secular fabric and citizens’ liberty and rights!

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Understanding the Right to Privacy: The Puttaswamy Judgment-I

In 2017, the 9 judges of the Indian Supreme Court adjudicated a matter Puttaswamy v. Union of India (‘Puttaswamy’) and unanimously held that under the Indian Constitution, the Right to Privacy is a fundamental right. The Supreme Court declared that its previous judgments in MP Sharma (8 judges) and Kharak Singh (6 judges) are overruled as they did not recognise privacy as a fundamental right. Those judgments relied on the logic used in the A.K. Gopalan case which stated that every fundamental right to be read separately and individually. But that position got changed in R.C. Cooper v. Union of India, and subsequently in Maneka Gandhi v. Union of India, in which the Court held that fundamental rights cannot be read in water-tight compartments. In Cooper, the Court said that the fundamental rights ‘do not attempt to enunciate distinct rights’, rather they are interlinked. Hence, this article must be read in light of the principle enunciated in the Cooper case. In this article, I will try to highlight the reasoning behind Puttaswamy as to why the Court declared Right to Privacy as a fundamental right.

Understanding Right to Life and Dignity

Every human being by the virtue of her existence has a Right to Life which is a natural right guaranteed by the ‘Nature’. Further, this natural right to life is also guaranteed by the Indian Constitution under Article 21 which elucidates that the ‘state’ shall not violate any person’s right to life and personal liberty without the procedure established by law. The Right to life is not just the right of a person’s physical body, but also over her mental being. In Golaknath case, Justice Rao observed that ‘Fundamental Rights are the modern name for what has been traditionally known as Natural Rights’ [The usage of the word ‘natural’ here is opposed to the societal opinion/understanding of the rights ‘as they are since time immemorial’, rather it is based on the transformative nature of rights which are always evolving]. These rights, including the right to life, cannot be excluded or separated from human existence. Hence, the rights guaranteed under Part III of the Constitution are the natural rights of every human being, which it aims to preserve.

Dignity, as an expression, finds its place in the Preamble of the Constitution as it states that ‘ensuring the dignity of every individual’. An individual is the focal point of the Constitution and human dignity weaves through the provisions of the Constitution. [Article 14: Guarantee against arbitrariness; Article 19: Individual Freedoms; Article 21: Life and personal liberty] The Court in the Francis Mullin case strongly observed that the fundamental rights must be interpreted to enhance the human dignity and ‘worth of the human person’. The Right to Life is not just animal existence and it is much more than just mere survival. On human dignity, the five-judges bench in M. Nagraj exposits that, “no exact definition of human dignity exists. It refers to the intrinsic value of every human being, which is to be respected. It cannot be taken away. Every human being has dignity by virtue of his existence.” Further, observing about dignity, it has been observed in Selvi’s Case that forcible intrusion into a person’s mental processes is also a violation of Human Dignity.

Privacy and Human Dignity

Ancient philosophers such as Aristotle distinguishes private life from public life. He distinguishes the spheres where the government can intervene and where it cannot; certainly as he observes that government cannot intervene in an individual’s privacy.  Individual’s private life is mainly for “private reflection, familial relations and self-determination” (refer to the constitutional database to read the hyperlinked article). The individual is sovereign over her mind and body. As Justice Chandrachud posits (Puttaswamy ¶32),

“If the reason for protecting privacy is the dignity of the individual, the rationale for its existence does not cease merely because the individual has to interact with others in the public arena.”

An individual has all the freedom and liberty over his body and mind and she must be set free from any kind of intrusion. Privacy, as a right, is important for an individual to exercise control over his or her personality. ‘Privacy ensures that a human being can lead a life of dignity by securing the inner recesses of the human personality from unwanted intrusion.’ (Puttaswamy ¶113) Life without dignity, privacy and liberty is no life as they are inalienable to a human being. No state can violate these rights as they exist even before the advent of the Constitution. The constitution is ‘not the sole repository of the right to life.’ India has signed and ratified UDHR and its Article 12 recognises the Right to Privacy which cannot be taken away by anyone.

 Further, the argument that the right to privacy is not available under the text of the Constitution is based on a primitive understanding of it. The Constitution is a transformative text which evolves over time and it cannot be viewed as a document ‘written in ink to replace one legal regime with another’. It is a document which rests on the goals enshrined in the Preamble and the aim is to realise those goals. The Constitution does not tells us what is a right or do we have a right or not? It only puts the limitations on the power of the state. It is not the source of liberty of man as liberty exists by the mere virtue of existence in the world.

Therefore, the right to privacy is a part of the liberty of an individual and privacy protects the individual’s autonomy and dignity. The ‘pursuit of happiness’ which everyone seeks is founded upon liberty and dignity of an individual. ‘Both are essential attributes of privacy which makes no distinction between the birthmarks of an individual.’ The guarantee of the right to privacy liberates the individual and helps her in realising her potential and autonomy.

In conclusion, while embracing the Supreme Court’s judgment in Puttaswamy v. Union of India, a paragraph from Max Planck Encyclopaedia of Comparative Constitutional Law (2015) is something to look forward to:

“The right to privacy can be both negatively and positively defined. The negative right to privacy entails the individuals are protected from unwanted intrusion by both the state and private actors into their private life, especially features that define their personal identity such as sexuality, religion and political affiliation, i.e., the inner core of a person’s private life….. The positive right to privacy entails an obligation of states to remove obstacles for an autonomous shaping of individual identities.”

[Note: There are certain reservations about the Court’s judgment with regard to ‘declaring Privacy as a Natural Right and not merely a Fundamental Right’. This has been argued here and here]