The Allahabad High Court has struck an important blow for individual liberty and freedom of choice, by striking down a provision in the Special Marriage Act, 1954, which has been repeatedly misused in the past. The court has ruled that Section 5 of the Act, which requires any couple intending to marry under the provisions of the Special Marriage Act to give a mandatory 30-day public notice, to enable any member of the public to raise objections to the proposed union is optional.
While the provision, when the law was originally passed, was probably intended to ease the path of those intending to forge a matrimonial alliance in a newly minted secular republic outside the narrow contours of religious faith, caste and communal identities, over time, this was more misused than used with the original intent and spirit of the Act.
The mandatory provision ensured that the forces of obscurantism and self-appointed caste/community vigilantes got a chance to identify such couples and created opportunities for wreaking violence on such couples. Often, the provision has provided the information necessary for such forces to carry out so-called “honour killings”. Such killings are an extreme example of a patriarchal society extracting the extreme price from those, particularly women, who had the temerity to break its “norms”.
In its 2018 ruling on honour crimes, the Supreme Court had stated that such self-declared “guardians” could not take the law into their hands and further,“cannot assume the character of the law implementing agency, for that authority has not been conferred upon them under any law”. The Allahabad High court has reiterated this principle of giving primacy to the individual by holding that the provision, as it stands, is violative of the couple’s privacy and freedom of choice, both deemed fundamental rights.
The provision violated the “fundamental rights of liberty and privacy, including within its sphere freedom to choose for marriage without interference from state and non-state actors, of the persons concerned,” the court observed.
The ruling is important on multiple counts. First, it reiterates the core fundamental rights of the individual. Second, it continues the increasingly liberal interpretation by several courts in the past – including the Supreme Court – favouring personal choice and individual freedom over provisions of the law which may no longer be relevant in a modern society. Third, and most important, coming as it does in the current atmosphere where several states, particularly BJP-ruled ones, are attempting to legislate a unitarian world view and legalise blatantly unjust intrusion into the personal lives of citizens through the so-called ‘love jihad’ laws, the ruling strikes an important blow for individual freedoms at a time when an increasingly muscular state is attempting to redefine the original vision of India as a secular democracy envisioned by the framers of our Constitution into a narrower and more unitarian world view.
The court’s ruling once again underlines the importance of an independent judiciary for reining in the excesses of a dominant state determined to misuse its power to legislate to interfere in the personal lives of its citizens.