Loving versus law

Context: Besides violating an individual’s right to marry a person of one’s choice, the Uttar Pradesh (UP) anti-conversion law also amounts to discrimination and a violation of the right to equality.

Features of Prohibition of Unlawful Conversion of Religion Ordinance 2020: brought by UP govt.

• Prohibits any religious conversion due to coercion, force, undue influence, allurement, fraud or by marriage and makes such a marriage liable to be declared void.
• Makes such an act of conversion a non-bailable criminal offence.

Arguments against the ordinance:

• Violates an individual’s right to marry: a person of one’s choice and Restricts the fundamental right to life, autonomy and privacy. (Article 21)
• Violation of the right to equality based on religion
  • Violates Article 15 and Article 14: by keeping religious conversions the sole ground for terming the marriage as void.
    • Our equality guarantees in the Constitution demand that all persons have equal protection of the law under Article 14.
    • This goes together with the guarantee of non-discrimination under Article 15 which mandates that the State shall not dis- criminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them.
  • Violates equality jurisprudence: While it requires that the State can make separate classification which has a reasonable nexus with the purpose of the law; however, the facts point otherwise.
    • According to “India Human Development Survey data, 2005”, only 2.21 % of all married women between the age of 15-49 had married outside their religion.
• It will ensure neither marriage nor conversion takes place:
  • Due to this ordinance marrying under personal laws requires a 60-day public notice and a police enquiry before conversion for marriage.
  • While on the one hand, this creates fear of harm among the family member for forced conversion, the law prohibits such conversion – leading to stalled marriages.
• Intent of ordinance is to control women and girls: under the garb of protecting them from being coerced into forced conversions by marriage.
• Ordinance is a result of prejudices between specific communities: Similar was the ban on inter-racial marriages in the State of Virginia, United States of America.
• Against the will of constituent Assembly: Members of the Sub-Committee on Fundamental Rights, especially the women members Rajkumari Amrit Kaur and Hansa Jivraj Mehta, advocated for the inclusion of interfaith marriage as a fundamental right.

Judgements on Interfaith marriages: IN 1967, when Richard Loving challenged the ban on inter-racial marriages in the State of Virginia, the United States Supreme Court stated in Loving v. Virginia, “Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State...We have consistently denied the constitutionality of measures which restrict the rights of citizens on account of race. There can be no doubt that restricting the freedom to marry solely because of racial classifications violates the central meaning of the Equal Protection Clause.”

Conclusion: State should not stop inter-faith marriages so that the social stigma against such marriages is removed and couples who wish to enter into interfaith marriages are enabled and protected.