Beyond Polygamy: A Bill Too Far

India has long had a legal prohibition on bigamy. What the new Assam Prohibition of Polygamy Bill attempts to criminalise is not a fresh offence. A secular bar already exists in the form of the former Section 494 of the Indian Penal Code and its successor, Section 82 of the Bharatiya Nyaya Sanhita. The Special Marriage Act also prohibits more than one subsisting marriage. The State therefore steps into a field where the law is not silent, and where the basic offence it seeks to regulate is already punishable. What is new is not the prohibition, but the scale, the sweep and the intrusive character of the punishment that Assam now proposes to introduce.There is an old warning in liberal political thought that the gravest danger to individual freedom does not always come from spectacular exercises of State power, but from the quiet expansion of authority into the intimate spaces of life. The philosopher John Stuart Mill called this the “tyranny of prevailing opinion,” a condition where society uses law to discipline private behaviour rather than regulate public harm. Indian constitutionalism has historically been attentive to this boundary. It recognises that marriage, family, and faith form the inner core of personal autonomy, and the State must approach these domains with restraint, justification, and humility. Assam's Prohibition of Polygamy Bill, 2025, unsettles this principle. It replaces the civil vocabulary of marriage with the punitive language of criminality and announces a kind of moral guardianship that the Constitution never authorised.Although the Bill claims to protect women, its structure marks a decisive shift in how the State imagines its authority. Criminal law, which most directly affects personal liberty, is being pushed deeper into areas historically shaped by personal laws, civil remedies and community reform. While bigamy is already punishable under Section 82 of the Bharatiya Nyaya Sanhita, the Bill expands criminal liability far beyond the actual offender. Priests, qazis, parents and village heads can be prosecuted for failing to inform the police about a contemplated marriage. Silence itself becomes an offence. Ordinary community members are required to report private decisions that would normally remain within the realm of personal choice. This represents an expansion of policing into intimate life.A closer look at the provisions deepens these concerns. Sections 8 and 9 introduce an unusually broad territorial sweep by enabling prosecution of Assam residents who enter a polygamous marriage outside the State, and even non-residents who own property, receive subsidies or are registered beneficiaries in Assam. This significantly departs from established territorial limits in criminal law. Section 11 authorises police officers to enter, inspect and search premises where a polygamous marriage is considered likely to occur. When combined with mandatory reporting obligations under Section 7, the Bill creates a structure of pre-emptive surveillance over private relationships. The Statement of Objects and Reasons describes these measures as necessary to protect women from hardship. Yet the model it constructs raises serious concerns about privacy, due process, evidentiary standards and the presumption of innocence. It also exposes community members to liability for acts that are not their own.This framework conflicts with the Supreme Court's recent jurisprudence. In Puttaswamy the Court located decisional autonomy at the centre of the right to privacy. Shafin Jahan affirmed that choosing a spouse is integral to personal liberty. Navtej Johar cautioned against using criminal law to enforce moral preferences. Joseph Shine rejected the criminalisation of adult relationships solely because society disapproves of them. The Assam Bill moves in the opposite direction by extending criminal law into a space where the Court has consistently urged restraint.The Bill's internal structure also reveals an inconsistency. It excludes all Scheduled Tribes and areas governed by the Sixth Schedule, where customary laws are constitutionally protected. Even the Hindu Marriage Act does not apply in these regions. While the exemption has a constitutional basis, it weakens the Bill's stated moral purpose. If polygamy is considered inherently harmful, the nature of that harm does not vary with community identity. A statute that claims to advance gender justice cannot simultaneously exclude entire groups who may also practise the custom.Evidence further undermines selective framing. The National Family Health Survey 2019–20 reports polygamy among 1.9 per cent of the Muslim population and 1.3 per cent of the Hindu population. The difference is marginal. The practice, where it survives, is not confined to one community. A credible gender-justice approach would respond to such evidence with consistency, not selective criminalisation.There is also the question of necessity. Secular law already prohibits polygamy. When a...

Beyond Polygamy: A Bill Too Far

Shubham Kumar & Sufiyan Siddiqui

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