2 min read.Updated: 12 Jan 2021, 10:38 PM ISTLivemint
The state should never violate constitutionally guaranteed personal liberties, but we’ve had a rash of laws that openly do. If lawmakers won’t stop this downslide, India’s judiciary must
As a proposition, ‘minimum government’ has held special appeal in the economic sphere as a reformist mantra. This is no surprise in a country that saw an outsized state retard our growth prospects for decades before we embarked on liberalization. That the same ideal must guide India’s social policy framework, however, seems lost on too many lawmakers. Witness the surfeit of laws and policies we have seen that invade our private space, baring a tendency towards a maximalist state all too keen to impose itself on our personal lives. The most invasive of these relate to marriage, as seen in decrees issued by Uttar Pradesh (UP), Uttarakhand and Madhya Pradesh (MP) that go under the oxymoronic rubric of “love jihad" laws. With their stated intent of stopping post-marital religious conversions, they have openly been weaponized against interfaith unions. Such has been the zeal of enforcement that violations of human rights have become legion in some places. In UP, a woman suffered a miscarriage after she was ‘rescued’, against her wishes, from her husband of a minority faith. Others have been roughed up by cops and vigilantes, and state interference in marriages has all but assumed the proportions of a public campaign. Karnataka, meanwhile, has a financial incentive scheme for Brahmin women of economically-weak households to marry priests, provided they fulfil a set of conditions. This is statism of the sort that should have no place in a constitutional democracy.
Instead of big government being rolled back, we have intrusions being justified by their sponsors on the specious logic of popular will, as expressed politically. In UP, the police were cheered as they went about enforcing the state’s anti-conversion decree. They registered 14 cases, some of them retrospectively, and made more than 50 arrests within a month of its passage last November. Defenders of its provisions claimed that the idea was to prevent marriages solemnized for the “sole" purpose of conversion. There is no criterion by which a marital motive can be judged, but even if there were, freedom of faith and conscience constitutes a fundamental right granted to everyone by India’s Constitution. So, the religious identities of individuals should be irrelevant to matrimony. Article 21 of that document assures us protection of life and personal liberty, while Article 25 allows us to follow, practise and propagate any religion we pick. Any measure to outlaw marital conversions would probably fail both these vital tests of constitutionality. One can even detect an ironic admission to that effect in the Orwellian names these social restrictions have been given. In MP, for example, it is the Freedom of Religion Ordinance that lets the state push its way into the domestic lives of couples.
A few years ago, the diets of citizens were under state scrutiny. Today, it is matrimony. This slide towards choice repression must be arrested. We need a clear enunciation of the principle that every citizen is free to act in a manner that causes no harm to others (or, in some cases, to him or herself). Such liberty is virtually the basis on which we opt for the national compact of citizenship—which differs from subjection. This point needs to be made by our judiciary. The apex court is examining the constitutional validity of the Uttarakhand and UP laws. It ought to junk them for what they are: violations of our rights. They also make a mockery of the ruling party’s slogan of “minimum government, maximum governance".