Anti-conversion laws and their relation with the Special Marriage Act

LJCS: Legal Journal for Contemporary Society

Introduction

The Special Marriage Act, 1954, allows the solemnization of marriages between any two individual without any religious customs, rituals or ceremonial requirements. The Special Marriage Act has provision for the marriage of inter-caste couples without any religious means which is the main requirement for marriages under personal laws such as Hindu or Muslim marriage acts. The provisions for anti conversions laws are problematic for couples who wish to marry against the social norms.


Conversion under the Special Marriage Act

In the recent propaganda, love jihad was a controversial top that favours the Special Marriage Act that allows inter-caste or inters religious marriage without conversion. The enactment of special marriage law is one of the most important Acts because it states that any individual has their own right and duties to marry the other person. Thus, the Act embedded secularism in the institution of marriage as a “freedom to love”. The provisions of the Act states that the verification of marriage should be made within 30 days after its registration are used frequently by the families of eloping to know them.


Procedure for registration of special marriage act prescribes:

1. The parties’ should give prior notice of the intended marriage to the district court’s marriage registrar, where at least one of the parties resides for at least 30 days immediately before the date on which such notice is issued.

2. The notice is entered in the marriage notice book, and the officer publishes a notice of marriage at the marriage registrar office.

3. The marriage officer’s notice of marriage should be published, including the parties’ details, i.e. name, address, identity information, the residence of place, etc.

4. The parties can object to marriage under the Act. If no objection is raised within 30 days, then the marriage can be solemnized, but if objections are raised, the marriage officer inquires. After inquiring into the marriage, the officer decides whether or not solemnization of marriage.


Concept of Special Marriage Act, 1954

The Special Marriage Act is a law that allows the solemnization of marriage without going through any religious customs, traditions or rituals. It mentions that people of different caste or rituals or religions can get married without any discrimination. The main aim was to have a secular institution or belief of all religion that have the freedom to solemnize the marriage.


The Viewpoint of Religion and Indian Customs

In the 21st Century, the concept of religion in Indian society is way different from western culture. The Indian society has still not had to adapt vast views on other counties’ western culture to date. Religion in India has its own sentimental issues. It happens to be one of the most important and political factors in Indian society. The Constitution of India states that India is a secular state, and it strengthened the idea of secularism by granting Freedom of Religion as a fundamental right under Article 25 to 28 of the Indian Constitution. Earlier, the concept of secularism was not a part of the Constitution but later became a part of the Constitution’s basic structure in the 42nd Amendment in 1976. Thus, the word secular was added in the Preamble of the Constitution.


Case Law: S.R. Bommai V. Union of India

The Supreme Court of India held that India was a secular state when it became a Preamble part. Thus, the Constitution of India gives its citizen the right to practice their religion. Numerous incidents of religious intolerance resulted in riots as violence.


Brief of Anti Conversions Laws

As India is a secular country, it has vast practice and beliefs of religions. Particularly, India states that religions’ practice has its own birthplace that defines Hinduism, Sikhism, Buddhism and Jainism. The practice of Anti Conversion laws has its deep meaning, and these laws are restricted in religious conversion. After India got Independence, the Parliament introduced anti-conversion bills, but none was accepted. The Indian Conversion Regulation and Registration Bill was introduced in 1954 to the enforcement of missionaries and registration of conversion with government officials. However, the bill was not passed because most people did not support the Lok Sabha, and the member of Parliament rejected it. Then, another bill was introduced by the backward communities that relate to the Protection of Religious Bill, 1960. The bill aimed to check the conversion of Hindus to non-Indian religions that specify the meaning of the bill; it includes official curbs on inter-religious conversion. However, the bill was not passed by Parliament.

When the BJP government came into effect and shown its interest in adopting anti-conversion laws, the Ministry of Law and Justice mentions ‘public order of state list’ in the Constitution’s 7th schedule. As per the three lists, the name of religion or conversion was not mentioned, but the subject can fall under the 97th entry of the Union List, i.e. Parliament can make the laws. Orissa was the first state to pass anti-conversion laws in India, 1968. The anti-conversion laws are completely the domain of the states.


LJCS: Legal Journal for Contemporary Society


Judgment on the Allahabad High Court

The Allahabad High Court issue an order in a habeas corpus writ petition stating that one can change the views on faith just for matrimonial purposes. When two persons are from different religion or traditions or customs, then he/she can marry under the Special Marriage Act, 1954 that endeavours towards the Uniform Civil Code. In Supreme Court, petitions were filled for challenging the validity of the Prohibition of Unlawful conversion of Religion Ordinance and freedom of Religion Act, but those petitions were not entertained.

Further, the Court held that section 6 and 7 of Special Marriage Act mentions to be the directory in nature and couples has the option to have the notice of their marriage publish. In case they choose against the publication of the notice, then the marriage registrar shall proceed to solemnize their marriage.


Analysis of States against Conversion

1. The issues address on conversion was purely based on forced conversion in the light of marriage.

2. Any conversion if it is against individual rights, then strict actions should be made.

3. UP and Karnataka government have separate legal provisions for the conversion of laws.

4. The acts of Himachal Pradesh Freedom of Religion Act, 2019 and Uttarakhand Freedom of Religion Act, 2018 prohibits conversion by misrepresentation, coercion, undue influence, inducement, forced marriage.

5. There are almost ten states, i.e. Odisha, Madhya Pradesh, Arunachal Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Rajasthan, Tamil Nadu and Jharkhand, have passed anti-conversion of laws in India.

6. Under the Special Marriage Act of 1954, individual should not be forced for conversion, and there is no punishment to people to force others for conversion.


Conclusion

The concept of conversion is valid only if any individuals convert their own religion based on their choice. Thus, the forced conversion must be restricted, and punishment should be given to people to force others for conversion. However, when two individual legal appear before the marriage registrar, the marriage can be solemnized, and a provisional marriage certificate can be issued to the couple. In section 24 of the Special Marriage Act, 1954, if any information related to the parties found fraud, then the marriage can be declared null and void. The above judgment clearly states that a marriage can be a secret weapon, and the publication of marriage would depend on the parties. It will also ensure that parties to the marriage do not have to change their religion.

- Kopal Khanna,
LL.B. Student,
Savitribai Phule Pune University

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