SMA rules must be reconsidered

The question roiled the Constituent Assembly and spilled over into the Parliament of the newly independent India. From the swirling debate around the reformation of the Hindu personal code, which even claimed the resignation of the then law minister BR Ambedkar emerged one of the most significant pieces of family law legislation at the time, the 1954 Special Marriage Act (SMA). The new law – which aimed at bypassing the fractious debate on reforming the customary laws of religious communities and giving a new secular framework for intercaste and interfaith unions – was seen as fulfilling the mandate and promise of egalitarianism and personal freedom made by a newly free nation. Yet, as family law scholars later argued, suspicion about exploitation, coercion and especially conversion lingered, pushing successive governments to keep raising the bureaucratic barriers for couples wanting to wed under the secular law.

Today, a couple that applies to marry under SMA needs to undergo a harrowing regime of checks and inspections in many states. The registration officer first takes down the details of the couple, and then puts up a public notice on the notice board along with photographs and personal details such as phone numbers. A mandatory notice period of 30 days is given for people to raise objections to the marriage, a particularly risky provision that has been weaponised in recent years by members of vigilante groups that stalk interfaith and intercaste couples, and often use personal details to approach their natal families and dissuade them from proceeding with the union. Moreover, the vague definition of objections, which can be raised by anyone, and the fact that if the certificate is not collected within a period of three months, the whole process has to be repeated again, makes the process a nuisance, and even potentially dangerous for people from vulnerable communities.

This has been known for decades, but this week, the Supreme Court, too, appeared to come out against these procedural hurdles. While hearing a clutch of petitions demanding legal recognition of same-sex marriage, a five-judge Constitution bench said the notice regime was based on patriarchy and laid them open for “invasion by the society”. The court added that if the effect of the notice is to defer one’s right to get married at a time of their choice, it cannot be regarded as procedural because the impact is on persons’ substantive right to get married at the time they decide. “There is a very real likelihood that this will disproportionately affect situations in which one of the spouses belongs to a marginalised community or minorities. This has a disproportionate impact on the most vulnerable sections of society,” stressed the bench.

The court is right. There is a reason the notice regime has been previously challenged before the Delhi high court, and that it makes up a significant chunk of a petition by two lesbian women from rural regions in Haryana and Punjab, both of whom come from marginalised caste backgrounds. That reason is that the unnecessary checks end up thwarting efforts to breach caste and faith barriers, and pose real-life threats to communities that are already subjugated by social prejudice. No legal proclamation of individual liberty, including same-sex unions, can be realised until such procedural hurdles can be made more reasonable. The court and lawmakers must deliberate on whether these regulations end up eroding the aim and import of India’s secular marriage law, and thereby, the Constitution.