Inter-faith marriages are considered taboo in India, a country predominately influenced by religious proponents and teachings. Several laws have been drafted on this subject-matter, with the most recent developments being the promulgation of Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, followed by Madhya Pradesh Freedom of Religion Ordinance, 2020. There are contentions that these ordinances violate an individual’s right to choose, autonomy and privacy. However, the impact of these laws seems ever more unsettling when discussed considering the Special Marriage Act (‘SMA’).
Anti-conversion Laws and the Special Marriage Act
Anti-conversion laws are state-level legislation designed to regulate religious conversions. Their history dates back to the colonial era when princely states enacted various laws to protect their people from forced conversion by Christian missionaries. After independence, the Niyogi Committee Report on Christian Missionary Activities Enquiry, 1956, showcased that religious conversions led to public order disturbance and threatened the nation’s national security. Thus, the Center introduced various anti-conversion bills. However, none received parliamentary support. Accompanied by a growing animosity towards proselytism, states were encouraged to frame anti-conversion laws.
Odisha became the first state to pass the anti-conversion law. It provided that no person shall convert any individual using force, inducement, or fraudulent means. When this law was challenged, the Supreme Court (‘SC’) in Rev Stanislaus (¶20) held that an individual has the right to ‘transmit’ one’s religion, but not the right to convert another person. This gave legitimacy to anti-conversion laws, and subsequently, similar laws were passed by various states. In 2015, the Ministry of Law and Justice clarified that anti-conversion laws were purely state’s subject-matter.
While the earlier laws restricted forced conversions, Uttarakhand, Himachal Pradesh, Uttar Pradesh and Madya Pradesh laws go a step further and make marital conversions illegal. It provides that the individual undergoing conversion and the priest presiding over the conversion must inform the district Magistrate thirty days, in some instances sixty days, before the conversion. Subsequently, the police investigate to ascertain the “real intention” and the purpose of conversion. Post-conversion, the convert needs to submit a declaration with personal details, which is displayed for public scrutiny. A conversion is declared invalid if the procedure is not followed.
Whereas the SMA is the first radical departure from traditional intra-faith marriages and recognizes inter-faith marriages. The original SMA was enacted in 1872, but required individuals to renounce their religions before marrying. This requirement impeded religious autonomy and individualism. Thus, the present Act allows inter-faith marriages without the need to renounce one’s religion. Under Section 5 of SMA, parties need to issue a thirty-day notice with the Marriage Registrar notifying their intention to marry. The notice is published giving others a chance to file an objection to the marriage. In case of an objection, the Registrar conducts an inquiry and can reject the marriage if the objection is reasonable. Provided there is no objection the marriage is solemnized.
It can be concluded that since the anti-conversion laws outlaw marital conversion and SMA is the only legislation officiating inter-faith marriages, an inter-faith couple must exclusively marry under SMA. Therefore, both the acts operate in the same sphere.
The Discontent between Anti-Conversion Laws and the Special Marriage Act
The new anti-conversion laws undermine the principles and goals of the SMA. First, the SMA upholds individuals’ fundamental rights under Article 21 and 25 of the Constitution. However, the anti-conversion laws are antithetical to these rights. The SC has recognised the right to choose a life partner irrespective of their religion as an inextricable part of dignity and fundamental right under Article 21. Any interference by the State on the said right is liable to be struck down. Alongside, Article 25 guarantees the freedom to profess, practice, and propagate one’s religion. In Shafin Jahan (¶84) the SC emphasized on individual autonomy and held that the way one chooses to lead their life is entirely a matter of personal choice. Every person has the right to follow religious beliefs guided by his/her judgment. This right is also a recognised international human right under the Universal Declaration of Human Rights (Article 18) and the International Covenant on Civil and Political Rights (Article 18(1)).
The SMA allows individuals of the same or different religion to marry anyone without the need to change their religion, promoting their right to choose under Article 21. Alongside, SMA does not prohibit conversion before or after the marriage, promoting Article 25. In contrast, the anti-conversion laws require a notice of intent prior and post-conversion. Such requirements attract societal harassment and suppress individuals’ right to choose their life partners, violating Article 21. Accordingly, these laws outlaw’s marital conversion; violating the right to choose one’s religion, violating Article 25. Thus, the anti-conversion laws have a chilling effect on the fundamental rights of inter-faith couples.
Second, contrary to the aim of SMA that encourages inter-faith marriages, the anti-conversion laws increase the grounds to invalidate inter-faith marriages. The anti-conversion laws require individuals to issue a notice before conversion. A similar notice is indeed needed under SMA. However, as provided under Section 7(1) the thirty-day notice under SMA aims to ensure that the person marrying does not contravene the conditions necessary for a valid marriage – age, prohibited degree of marriage, soundness of mind and others. Uttar Pradesh, Punjab-Haryana, Delhi HC while reading this requirement to be merely optional, have held that an individual has the right to change one’s belief and keep his/her beliefs a secret.
Despite this, the anti-conversion laws require a sixty-day notice with stringent provisions, acting akin to a moral policing tool. The vague definitions and wide interpretation of terms like force, inducement, and fraud, presume that all marriages are forced and increase the grounds to invalidate marriages. These wide terms give rise to malicious claims being reported, as is evident from various forced conversion cases being quashed by the courts. Further, it shifts the burden of proof upon the person accused of causing and facilitating the conversion to prove that the conversion was voluntary. It completely disregards the converted person’s testimony and directly violates the principle of innocent until proven guilty. Thus, these laws presume all conversions to be unlawful and even targets consenting inter-faith couples whose families have no objection to the marriage.
Third, marriages solemnized under SMA by coercion or fraud merely render the marriage voidable at the instance of the forced individual. However, anti-conversion laws directly render the marriage void. Section 29 of SMA provides that no marriages can be dissolved in one year of solemnization unless in extreme hardship cases. Whereas, under anti-conversion laws, marriages can be invalidated as early as within sixty days of marriage. Alongside, every offence committed under the anti-conversion laws is recognised as a cognizable and non-bailable crime. A person causing forceful conversion would be imprisoned for a term up to ten years and a fine not less than Rs.50,000. In India, imprisonment for ten years is for heinous crimes like manslaughter, rape, and human trafficking. Whereas the only punishment under SMA is when a person indulges in bigamy, which is punishable under the IPC. Thus, the anti-conversion laws go on to criminalize conversions, which was never the aim of SMA. Hence, SMA is a marriage-orientated law, whereas anti-conversion laws are merely conversion-centric laws.
Fourth, the anti-conversion laws portray certain sections of society as innately weak and credulous, reinforcing social hierarchies. The laws are premised on the assumption that certain groups – minors, members of SC/ST, and women, are susceptible to manipulation and need to be protected differently. While the laws might be made to benefit these groups, the enforcement of the same is problematic. These laws allow third parties to object to conversion and decide on their behalf while disregarding the converts’ testimony, taking away their decisional autonomy and enforcing vigilante justice. It also provides greater punishment for converting the above-stated sections of society, which has no nexus to any legitimate objective. Further, Section 6 of the UP Ordinance states that a marriage commenced by the man after ‘converting the woman’ shall be declared void. Such terminology posits women as mere objects and passive dupes of the patriarchal mindset that women lack autonomy and require special protection. However, such reasoning has been repudiated in Anuj Garg v. Hotel Association (¶49). The SC held that any provision allowing family relatives of the female to file FIR while determining the validity of her conversion if followed by marriage is the annihilation of her autonomy and liberty. However, SMA makes no such distinction between different sectors of society and treats people belonging to all religion equally.
The Allahabad HC, while striking down the need for thirty-day notice period under SMA noted, “If laws permit two persons even of the same sex to live together, then neither any individual nor state can have any objection to the relationship of two major individuals”. While the anti-conversion laws complement the usage of the SMA, it contravenes the spirit of the SMA. These legislations use the transitive verb “to convert” thus, the rights of converts remain undiscussed. At the outset, many other states have shown the intention to introduce anti-conversion laws in their respective states. However, there is a need to move away from anti-conversion laws, which are a gross violation of individual rights and make suitable amendments to SMA for better realization of rights.
As recognised in Puttaswamy (¶585), everyone is free to make his/her choices, irrespective of their religion. If individuals want to get married or convert, the State must facilitate their rights instead of putting bars. Alongside, to prevent marital conversions, the procedure for registration of marriage under SMA needs to be made less cumbersome. In sum, anti-conversion laws are a decisive shift from the purpose behind enacting the SMA.
Varun Garg is a a second-year student pursuing BA LLB (Hons) at the WB National University of Juridical Sciences (NUJS), Kolkata. He can be reached out at [email protected]