The Onus Is Now on the SC to Protect Constitutional Rights to Privacy and Free Choice

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Source: The Wire

Among the many momentous things now underway, January 6 will be a watershed day in the annals of India’s jurisprudence.

Citizens’ pleas to strike down the unconscionable laws passed by state governments run by the ruling Bharatiya Janata Party (BJP) ostensibly against forced religious conversions but actually, and provenly, to prevent adult Hindu women to marry adult Muslim men, even if by their own volition, will come up before the top court.

The contention also involves the right to pursue any religious faith through voluntary conversion. As we know, Article 25 of the Constitution stipulates the right of any citizen to “profess, practice and propagate” any religious faith of choice. Any laws that adversely impinge on this fundamental right to the voluntary adoption of any religious faith must therefore seem ab initio ultra vires.

Note that the Hindutva right-wing has no issues (certainly, no stated issues) with Hindu women turning Sikh or Buddhist, but only with adopting the Muslim faith. Nor do they have any difficulty with a Muslim adult in an interfaith marriage converting to Hinduism, since such cases are dubbed not conversions but ghar wapsi – this in line with the RSS belief that everyone residing in Bharat is by lineage a “Hindu”.

It is another matter that the Sangh parivar always propagates this view only vis a vis India’s Muslims and Christians, and rarely or never forces that issue of lineage with respect to Sikhs, Jains or Buddhists whose repudiation of the said right-wing thesis is swallowed without any aggressive insistence.

Constitutional history at stake

On January 6, two views of citizen’s rights will be in direct contention – one propagated by the right-wing and the other enshrined in the constitution.

It is, of course, heartening that some courts including the Supreme Court itself have on more than one occasion already made known the constitutional position, and expressed their anguish with executive decisions that cavalierly trample on the citizen’s fundamental right to choice, emphasising that in such matters neither society nor the state has any constitutional locus standi to interfere, since the right to choice is embedded in the fundamental right to life itself (Article 21).

What remains to be seen is how decisively the highest court will come down on such regressive and unconstitutional executive decisions being translated into legislative imperatives.

Those who bear unmitigated allegiance only to constitutional provisions of citizen’s rights will no doubt look to the top court simply and unequivocally striking down the coloured, undemocratic and unconstitutional laws enacted by some state governments and legislatures.

It is more than obvious that such laws are intended to target just one community in consonance with the long-held ideological view of “cultural nationalism” that informs the Hindutva right-wing.

Consider that the call given by some scions of the right-wing to ban all conversions, individual or mass, would oblige us to view Ambedkar’s conversion to Buddhism along with lakhs of others as an illegal and anti-national occurrence. So much for the chief framer of our constitution whom the Hindutva social forces never fail to claim for its own.

On January 6, therefore, nothing less than the constitutional history and verity of the republic will be at stake. It is to be hoped that the honourable Supreme Court will choose not to make the pleas an occasion for a protracted debate – a course that would not but lend legitimacy, even if short-lived, to the contentions of the state – but summarily pronounce to seal once and for all the constitutional right to life and choice of adult Indian citizens, without respect to any particular faith.

There is, of course, a larger political issue embedded in the current goings-on, one that no doubt may not express itself in the deliberations of the court, but which nonetheless remains of fatal centrality to the constitutional health and credibility of civic citizenship. Needless to underscore, the issue involves the locus of India’s largest minority within the over-arching framework of equality before the law and non-discriminatory treatment of all citizens by all branches of the republican state.

It may be recalled that this aspect of recent national life came sharply into public focus with the passing of the controversial Citizenship Amendment Act, challenges to which legislation remain, sadly, still to be adjudicated by the Supreme Court of India.

An unequivocal assertion in favour of the provisions of Articles 14, 21, and 25 will, therefore, do more than just address some specific cases before the honourable court. It will be no exaggeration to say that such an assertion will have far-reaching impact on restoring the majesty of the constitution and the non-discriminatory genius of the founders who frowned upon social prejudices that had rendered Indians unequal and disempowered through ages of pre-democratic history.

And it will reassure India’s largest minority that they may not continue interminably to be held in suspicion and an alienating relegation because of the partition of India in 1947 – a complex occurrence in which ordinary Indians of whatever religious persuasion had no involvement, and whose twisted logic was memorably repudiated by all but a minuscule of separatists within both the Hindu majority and the Muslim minority.

As a passing thought: in any cultural diversity of populations, the construction of a “minority” is always an ideological act. Many in India would contend that actually some 80% of all Indians constitute a minority, to the extent that they remain all together victims of an economic order that grants the rights of the propertied and effective majority to a minuscule minority.

Perhaps all forms of reactionary politics seek alternate ways of constructing minorities precisely to evade the macro-historical and cross-cultural fact stated above.

That, of course, is a story always put on the backburner of historical sentience by the overlords of “free” societies who know better than to take to heart grandiose principles of human equality.


Badri Raina has taught at Delhi University. 

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