BY- ANSHUMAN GHOSH
Indian legislation and the Indian state have a long tradition of unjustified intervention with individuals’ private lives. The Special Marriage Act is one of the most daunting manifestations of this (SMA). It allows couples to inform marriage officers one month in advance of their marriage, and to make such a notice known to marriage officers. SMA also permits any person to “object” to marriage on the grounds that it violates the provisions of the Act (allegedly). It has been shown, repeatedly, that these laws have permitted violent relatives, as well as other entities, to interfere with people’s decision to marry and harass, browbeat, and coerce them to change their minds. The underlying dilemma is simple. It is not for someone else, and particularly not for vigilante organizations, to interfere with the option if two people have made the highly personal and private decision to marry each other. But it is exactly this type of extra-legal interference that is facilitated by legislation with reporting provisions of this kind and even promoted. Nevertheless, in this sense, the recent judgment of the High Court of Allahabad, in Safiya Sultana v State of UP, assumes considerable importance. Justice Vivek Chaudhary noted that it was necessary for the court to explore whether the social and legal environment had changed over the years after the Special Marriage Act was enacted in 1954. Based on a Law Commission study that observed that the notification clause of Special Marriage Act contributed to “high-handed or unjustified interference,” which frequently took the form of social boycotts and intimidation, and on various Supreme Court decisions that stressed the value of human liberty and privacy in marriage matters, he argued that it was evident that “personal liberty and privacy to fundamental rights” was required by the Constitution. In this case, in view of the social interference encouraged and sanctioned by Special Marriage Act notification requirements, Justice Chaudhary considered that those requirements had to be read as optional, not compulsory. In other words, they could not be forced to do so if a couple marrying under the Special Marriage Act did not wish their information to be made public. The standards for notification and documentation send a message to the world that decisions of the most personal nature are not for the individual to make, but must be ratified by society (which, in practical terms, means the dominant members of society). In reality, citizens and couples with a good preference are left to confront the risk of social repression and abuse or to give up their freedoms. There are not decisions that should be asked by a representative government to make by its people.