The dark step of writing hate into law – Anti-Conversion Laws
iasparliament
January 06, 2021
What is the issue?
The new marriage laws (Anti-Conversion-Laws) by some states seem to put state power and the law behind majoritarian communal biases.
This needs contemplation given the democratic and secular ideals guaranteed by the Indian constitution.
How have the marriage provisions evolved?
In 1872, the colonial state drew up a law after it received petitions from Keshub Chandra Sen of the Brahmo Samaj.
The petitions demanded that people of different backgrounds be allowed to marry according to their ‘rites of conscience’.
The Special Marriage Act, in 1954, took this further in independent India.
It took away the colonial law’s requirement to renounce religion.
However, it still allowed intrusion by the state, unlike under personal laws, by demanding notices to be put up in advance.
This was done to ensure that there were no living spouses or minors being married.
But this clause was misused by communal social groups to stop such unions.
What makes anti-conversion-laws flawed?
Fundamentally wrong - Under the Constitution, it is the individual citizen who has and exercises rights and obligations.
The Constitution does address communities when speaking of minority rights and untouchability, to only acknowledge and overcome social discrimination.
This is also because such social discrimination impedes the ability of those citizens to exercise their rights as individuals.
But the new laws treat religious communities, instead of individual citizens, as basic entities.
The laws take away the agency that the Indian Constitution allows each individual to exercise.
They thereby fundamentally distort the framework of Indian republic.
Violate privacy, choice rights - The laws blatantly violate the Right to Privacy.
The Supreme Court has in fact decreed Right to Privacy to be fundamental.
The level of state interference in a civil union, which is a solemnisation of a relationship between two individuals, breaches the basic structure of the Constitution.
Right to choose faith - The laws impede the exercise of an individual’s right to choose her faith without seeking state sanction.
Under the laws, everyone (from the police, local administration and communal groups and families) is given ample time to interfere and deny the individual, without any locus to do so.
In matters of change of profession, nationalities, electoral choices and even political parties, no such interference is brought into play.
Patriarchal - The basis of the new law is deeply patriarchal.
This is like reliving 1920s India when competitive communalism fanned charges of Hindu girls in North India being taken away like cattle.
The malicious myth of ‘love jihad’ where adult women are seen as property is now the law.
The laws target Muslim men, but are also a living hell for Hindu women as in the Hadiya case.
What are the larger concerns?
Constitutional values - India is said to have effected a social transformation given the values spelt out and written into the law of the Republic.
The Constitution offered high principles to aspire for, and ensured the citizens were always jumping just a little bit, to be better.
All laws should meet this brief.
However, these new laws do the opposite; they put state power and the law itself behind majoritarian communal biases.
This would only empower regressive social mores governing marriage and fellowship.
Inter-religious marriages may be less than 2.5% of all marriages, but the promise they hold goes beyond numbers.
They reaffirm the fundamental constitutional premise of all citizens being equal, besides promoting the ideals of freedom and fraternity.
Trust - Spreading rumours of ‘love jihad’ even as the government confirmed in Parliament that there was no evidence of it is unfair.
But more than that, it is dangerous as it seeds mistrust, and changes fundamental ideals that all plural democracies must live by.
What is the way forward?
India must never forget the price a society and a country pays for writing hate into law.
Hitler’s enactment of the Nuremberg Race Laws in 1935 ended up guiding Nazi racial policy for the remaining decade.
It is for the court to suo motu strike these laws down if it wants to preserve the basic structure of the constitutional edifice.
