Recently, I came across a news report of the Gujarat Chief Minister Bhupendrabhai Patel – assuring that he would look into the demand to introduce a legislation to regulate "love marriage”. In particular, whether it would statutorily require the love birds to obtain the consent and approval of their respective parents is unclear.
In normal times, one would have laughed at the notion of law compelling Laila and Majnu to get their respective Houses of Montague and Capulet in order to avoid the “plague on both their Houses”. However, these are extraordinary times!
So I cheekily imagined what a fictitious law to regulate “love” would read like and promptly tweeted as follows:
It was the reaction to this satirical social media post that truly alerted me as to how down the rabbit hole we have come as a nation that was once a robust constitutional democracy with a thriving Rule of Law!
But Tradition Has It..
For starters, most people actually fell for it and really believed that such a law was indeed on the anvil and that the draft law was genuine. Those who could see through the humour weren’t too happy either. They reminded me that my joke could well become a reality.
I must admit there was the odd sanskari voice which pointed that given our "Indian tradition”, seeking the "blessings” of elders might not be such a bad idea in the first place.
The notion that a consenting adult needs the approval of a third party, even if it is by her own parents, to be able to marry should have been an anathema to rights-based constitutional democracy established in a world order set by the Universal Declaration of Human Rights, 1948, which states in Art 16 granted all men and women the “equal rights as to marriage, during marriage and at its dissolution” of course only if entered into with “with the free and full consent”.
Not many constitutions actually expressly deal with the “right to marry”. Section 27 of the Constitution of Gambia states: ”(1) Men and women of full age and capacity shall have the right to marry and find a family (2) Marriage shall be based on the free and full consent of the intended parties.” The Constitution of The Cayman Islands also gives such rights.
It does give the authority to make laws to regulate marriages “in the interests of public order, public morality or public health”.
While the Constitution of India does not expressly recognise the “right to marry”, the rights and freedoms guaranteed in its Part III would certainly weigh against any such restriction on the freedom of expression of love through marriage.
Parents’ Stamp of Approval Tied to Honour
The Court in Puttaswamy (The Privacy Case (2017) 10 SCC 1) held as follows:
“271. The sanctity of marriage, the liberty of procreation, the choice of family life, and the dignity of being are matters which concern every individual irrespective of social strata or economic well-being. The pursuit of happiness is founded upon autonomy and dignity. Both are essential attributes of privacy which makes no distinction between the birth marks of individuals.
298. …. The intersection between one’s mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity. The family, marriage, procreation, and sexual orientation are all integral to the dignity of the individual. Above all, the privacy of the individual recognises an inviolable right to determine how freedom shall be exercised.”
The language of "parental consent” is ominously in the same genre as “honour” and “khap”. Addressing the menace of honour killings, the Supreme Court in Shakti Vahini v. Union of India, (2018) 7 SCC 192, held that:
“40. However, it can be stated without any fear of contradiction that any kind of torture or torment or ill-treatment in the name of honour that tantamounts to atrophy of choice of an individual relating to love and marriage by any assembly, whatsoever nomenclature it assumes, is illegal and cannot be allowed a moment of existence.”
The Court in Navtej Singh Johar v Union of India, (2018) 10 SCC 1 held that: “The question of freedom of choosing a partner is reflective from a catena of recent judgments of this Court such as Shafin Jahan [Shafin Jahan v. Asokan K.M., (2018) 16 SCC 368 : AIR 2018 SC 1933] wherein the Court held that a person who has come of age and has the capability to think on his/her own has a right to choose his/her life partner.”
Will the Laws Intervene in Matters of Heart?
The Court proceeded to grant this right to choose a partner – the status of a human right. Justice Chandrachud in his opinion also held that the choice of a partner and the "yearning to find love” had a "universal appeal”.
The Chief Minister, instead of rubbishing the proposal in the light of this legal position, has assured the same of his sincere consideration.
If one thing this episode does is it gives us a reality check as to where our society has regressed.
It should not be missed that only recently during the Constitution Bench hearings on Same-Sex Marriage, the voice of the opponents of unrestricted love, argued that this was a matter left to the wisdom of our legislature.
Forgetting moving on from the hetero-normative construct of matrimony, our political thought seems to be all set to regress to a point where even a heterosexual couple cannot tie the knot without parental approval unless the match is made by Seema Aunty or any other arranged marriage facilitator!
Imagine if indeed we left it to the babus of the law department to shape a law to define, regulate and, if required, strangulate “love”. How would the legislature describe “love”?
To my knowledge, the Contract Act, of 1872, for the first time legally used the term "love” in section 25 when it stipulated that “natural love and affection” would be a valid consideration in a contract. Even this law did not dare to define “love” I wish Chief Minister Bhupendra Bhai the best of luck as he goes about legally defining "love”!
(Sanjoy Ghose is a senior advocate practising in the High Court of Delhi and in the Supreme Court of India. He tweets @advsanjoy.This is an opinion piece and the views expressed above are the author’s own.The Quint neither endorses nor is responsible for them.)