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AN ANALYSIS OF THE ESSENTIAL COMMODITIES (AMENDMENT) ACT 2020October 19, 2020
A recent plea challenging certain provisions of the Special Marriage Act, 1954 (‘SMA’ or ‘Act’) as unconstitutional has been recently accepted by the Supreme Court of India. Section 6(2) and (3) of the Act require marriage officers to publish details of notice of marriage (issued under Section 5 of the Act) including personal details of the parties such as name, identity information, photographs, occupation, address, pin code, parent’s name and details, etc at a conspicuous part of his office. Being a manifestly excessive and a “peculiar” requirement, it was challenged along with provisions which allow for objections to such marriages by any person under Sections 7, 8, and 10 on the grounds of violating the fundamental rights of citizens and to be struck down for being illegal and unconstitutional.
Enacted in 1954, the Act aimed at normalising inter-faith marriages to back those who wanted to step outside of their community’s laws. Despite being widely resisted, it was passed and hoped to provide some respite to inter-faith couples. However, 60 years later, it has still not remotely dealt with its objective and inter-faith marriages still form only a shocking 5-6% of the total marriages. Instances of inter-faith couples being ghettoized and thrashed are not uncommon and the Court has, time and again, expressed the need to accept and normalise such marriages.
Section 6 of the Act which requires for publication of notice carrying sensitive personal information of the couple for 30 days can be grossly misused and is prone to having devastating effects. Address and contact information are sufficient for faith and caster border forces to harass the couple and the residence clause makes it exceptionally difficult to evade attention. There is no guarantee that notices are removed in 30 days and many a time, these notices remain put and open to the general public to misuse it as they please. Furthermore, as rightly pointed out by the plea, since Section 11 of the Act mandates the presence of three witnesses, the objection requirement is also superfluous. The object of the Act might be noble but the procedure and extra conditions exacerbate the already delicate position of these marriages and need to be done away with.
The justification and the irrationality of the justification
The Court, while asserting the importance of notice of marriage, remarked “What if children elope to get married and parents need to be told their whereabouts? What is a spouse runs away? How will the other spouse know where they are?”. This stance of the Court is problematic as it points to certain troubling trends: the biasedness of the mindset towards such marriages; the attempt to (irrationally) justify treating marriages under personal laws and marriages under the SMA as distinct and prone to separate, disparate requirements; and the subversion of the decision taken by two consenting individuals to exercise their right to marry. It is important to note that the instances of individuals eloping and individuals invalidly marrying again exists in intra-faith marriages as well and it is also important to note that there exist designated laws to deal with such instances of fraud and bigamy. In light of the same, added suspicions and internalised apprehensions towards marrying under the secular law is unwarranted and excessive.
The unconstitutionality of the requirement of public notice
Disregard of Articles 14 and 15 of the Constitution
Marriages under the Hindu Marriage Act, 1955 and the customary law of Islam are not subject to a requirement of public notice. The subjection of couples marrying under the SMA to the publication of personal details for the public to object to, with no such procedure laid down for intra-faith marriages therefore prima facie infringes the right to equality under Articles 14 and 15 of the Constitution.
Per the traditional test of equality formulated in State of W.B. v Anwar Ali Sarkar, the State should fulfil (i)intelligible differentia (ii) rational nexus with the aim. Not only does the application of different procedures on the basis of the faith/caste of an individual fails to establish any intelligible differentia, the subjection of one group of individuals to violations of their privacy falls short of proving any rational aim of the State in the first place. Additionally, Article 15, which prohibits discrimination on the grounds of religion, race, caste, sex, place of birth, or any of them, is also impinged upon by the requirement.
Blatant subversion of an inter-faith couple’s privacy and dignity under Article 21 of the Constitution
Furthermore, the impugned provisions also damage one’s right to have control over his/ her information and subsequently transgresses their right to privacy. In (Retd.) Justice K.S. Puttaswamy v. Union of India, the Court unanimously held the right to privacy to be a constitutionally protected right and held that informational privacy, being a facet of this right, needs to be protected as well. The Court also laid down a three-pronged test to determine the reasonableness of a restriction, i.e. (1) legality, (2) legitimacy, and (3) proportionality, and it is argued that prongs 2 and 3 are failed as well.
Firstly, there must exist a legitimate State aim. The State is obligated to take all necessary measures to protect the privacy of individuals and therefore when two consenting adults decide to get married, even if they are of different faiths, the State should ideally respect their wish to do the same. However, there is no legitimate state interest which is being protected by the publication of personal details and therefore, prong 2 of the test is not satisfied. Secondly, the proportionality standard requires adopting the least intrusive means to achieve the State aim. It remains unclear how the impugned provisions do not disproportionately interfere with one’s right to personal information and therefore, Article 21 of the Constitution is also violated by the impugned provisions.
The tussle between Right to Privacy and Right to Marry, and Concluding Remarks
The right of two consenting adults to choose their partners has been recognised in Shakti Vahini v. Union of India and acknowledgement that the unwarranted disclosure of matrimonial plans has the potential to jeopardize the very marriage itself has been recognised in Pranav Kumar Misra v. Govt of NCT of Delhi. In light of the same, necessitating the couple to waive off their right to privacy to be able to exercise their right to marry is not maintainable and underscores the pressing need of revisiting and striking down these provisions.
It is pertinent to restructure the law-keeping its original intent and purpose in mind. The ‘special’ of the Special Marriage Act was not meant to simply connote its difference from marriages governed by personal laws; the object was to encourage such marriages and have the law recognise them as normal, the acknowledgement of the fact that two consenting adults is all it takes to form a valid marriage, and that internalised biases and apprehensive notions of inter-faith marriages should gradually be eradicated. It is time that the Act is reworked so that it remains true to its object: that inter-faith marriages might be different from intra-faith marriages on paper, but they are alike in soul and ought to be treated alike in the procedure as well.
ABOUT THE AUTHOR
Mehak Jain is a second-year law student at Hidayatullah National Law University, Raipur.
In Content Picture Credit: The Indian Express
Kindly note that the views and opinions expressed are of the author and not of the Indian Journal of Law and Public Policy.