Yesterday, a single judge of the Allahabad High Court handed down an important judgment reading down Sections 4 & 5 of the Special Marriage Act, which requires couples to notify Marriage Officers one month in advance of their marriage, and for Marriage Officers to publicise such a notification. The SMA allows for any person to "object" to the marriage on the basis that it (allegedly) violates provisions of the Act (Section 7). The case – Safiya Sultana v State of UP – came to the Court as a habeas corpus case, but on resolving the issue of habeas corpus, the couple in question also asked for a finding on Sections 4 & 5 of the Special Marriage Act, especially in light of the ongoing cases under the Uttar Pradesh Prohibition of Unlawful Conversion of Religious Ordinance (separately under challenge before the Allahabad High Court). The reason for this was:
"… young couples are not in a position to raise these issues before solemnizing their marriages as any litigation further attracts unnecessary attention which invades into their privacy and also causes unnecessary social pressure upon them with regard to their choice of a life partner."
Justice Vivek Chaudhary agreed with this argument, and proceeded to examine the Special Marriage Act on the touchstone of constitutionality. He began by noting that as the SMA had been passed in 1954, the task before the Court was to examine whether the social and legal landscape, in the meantime, had altered to a degree so as to warrant a different interpretation of the Act's provisions. Justice Chaudhary observed that the 242nd Report of the Law Commission (2012) had specifically recommended deleting the notice requirement, observing that it would keep a check on "high handed or unwarranted interference", which often took the form of social boycotts, harassment etc.
Justice Chaudhary then went on to observe that in a series of judgments – from 2006 onwards – the Supreme Court had repeatedly emphasised the role of individual autonomy in questions of marriage, and held it to be inherent in Articles 19 and 21 of the Constitution. Examining the Puttaswamy privacy judgment in some detail in order to glean the scope of the right to privacy, the Court followed up by noting – crucially – that in Navtej Johar, it had been clarified that, when examining a law for constitutionality, what was important was not its object or form, but its effect. Drawing precedent together, Justice Chaudhary concluded by observing that:
"The law as declared by the Supreme Court, since the case of Lata Singh till the decision in Navtej Singh Johar, has travelled a long distance defining fundamental rights of personal liberty and of privacy. "Once a person becomes a major he or she can marry whosoever he/she likes" (Lata Singh); "choice of woman in choosing her partner in life is a legitimate constitutional right. It is founded on individual choice that is recognized in the Constitution under Article 19" (Asha Ranjan); "the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock…..it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution" (Shakti Vahini); "Neither the state nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters….. social approval for intimate personal decisions is not the basis for recognising them." (Shafin Jahan) and finally the nine-judges bench "Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and selfdetermination…….privacy is one of the most important rights to be protected both against State and non-State actors and be recognized as a fundamental right" (Puttuswamy) is a long chain of decisions growing stronger with time and firmly establishing personal liberty and privacy to be fundamental rights including within their sphere right to choose partner without interference from State, family or society." (para 40)
Thus, a combination of the propositions that (a) an individual's autonomous choice in intimate matters was constitutionally protected, and (b) constitutionality had to be considered by the effect of a law, brought Justice Chaudhary to the conclusion that the SMA had to be interpreted in a way that its reporting requirements would have to be read as voluntary, not mandatory:
The interpretation of Sections 6 and 7 read with Section 46 containing the procedure of publication of notice and inviting objections to the intended marriage in Act of 1954 thus has to be such that would uphold the fundamental rights and not violate the same. In case the same on their simplistic reading are held mandatory, as per the law declared today, they would invade in 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. (para 45)
Justice Chaudhary buttressed this conclusion by noting that there were no similar reporting requirements under the several personal laws, and that therefore, there was no reason to make the process under the SMA more onerous.
The judgment of the Allahabad High Court represents an important judicial pushback against what has been – of late – increasing State interference in questions of marriage, including by empowering social and vigilante groups. The SMA's notice requirements, of course, are not new: as the Court observed, they were present at the very beginning, when the original SMA was introduced in 1872. However, arguably, it is these notice requirements that have formed the baseline of further intrusions (the UP ordinance also has a similar notice requirement). What is most important is what they signify: notice and reporting requirements convey a message to the world that decisions of the most intimate character are not for the individual to make, but must be ratified by the society (which, in practical terms, means the dominant members of society). In practice, they leave individuals and couples with a stark choice: face the possibility of social persecution and violence, or give up your freedoms. These are not choices that a constitutional democracy should be asking its citizens to make.
In recognising that, Justice Chaudhary's judgment represents an authentic articulation of liberty under the Indian Constitution.
Views are personal.
This article was first published here