The Constitution of India envisioned its people advancing towards modernity infused with the country’s rich spiritual and cultural heritage but also embracing the values of the contemporary age of science and rational thinking. The two were not antithetical because in its most elevated and refined articulations, Indian philosophical thought placed high value on logic and sought truth from a dialectic of proposition and counter-proposition. The stress on individual rights was also in keeping with an Indian philosophical tradition that recognised spiritual and intellectual advancement as a deeply personal exploration.
The exercise of individual rights may be restrained only by the laws of the land and for safeguarding the public interest. The Constitution does not recognise community-based interests — the only exception being community-based entitlements, temporary in nature, for historically and socially disadvantaged groups who may need affirmative action from the State. Community-based interests cannot be equated to public interest, which, by its very nature, encompasses the interests of the people of India as a whole and which must be clearly spelt out by the State claiming that it is acting in the public interest.
No community or social group may exercise a veto over the exercise of an individual’s fundamental rights, by citing religious or community sensitivities. Were this permitted then, India would have become an agglomeration of a myriad entitled communities, each wallowing in its own self-created world of imagined victimhood and prejudices. Any chance of advancing towards a modern society where its people are united in common and shared citizenship as envisaged by the Constitution would have been forfeited. But we are faced with that danger today. India’s embrace of modernity is now threatened by social regression.
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Taking away citizens’ rights, giving it to community
The passage of laws by certain states that would subject inter-faith marriages among adult citizens of the country to scrutiny and certification by the government is yet another example of a creeping abridgement of fundamental rights of individuals guaranteed by the Constitution. What is noteworthy are the arguments advanced by the Uttar Pradesh government in justifying this blatant intrusion into the privacy of individuals and families and interfering with the choices freely made by adult men and women on who they wish to have as their marriage partners and whether they wish to exercise their freedom in respect of choice of religious faith. The family, social group or community cannot have a veto on such decisions and the State must prevent the exercise of such veto rather than be complicit in it. Yet the affidavit filed by the UP Home Secretary in the Allahabad High Court betrays precisely such complicity in justifying the laws.
The affidavit declares that “community interest is on a much higher pedestal than agreement of two individuals who enter into wedlock”. This is a brazen overturning of the very letter and spirit of the Constitution. This would imply that no two individuals can make a decision regarding their marriage partners without seeking the sanction of the community they are a part of.
The affidavit goes on to claim that “community interest will always prevail over the individual interest”. It confuses issues by equating community interest to social interest and to public interest, arguing that “community interest is synonymous with social interest, which is equivalent to public interest.” These three categories are entirely different in nature. If a particular group or community declares that its sentiments have been hurt by a particular action, which is otherwise lawful, then this cannot be a pretext for abridging someone’s legitimate exercise of right, on the plea that some community interest is thereby violated.
Nor can a plea be advanced that the exercise of such right may, by hurting the sentiments of a particular community or group, create a law and order problem and social unrest and hence its abridgement is justified. It is the duty of the State to deal with such a law and order problem, and punish those who perpetrate such unlawful situations rather than turn on a law abiding citizen. By no stretch of imagination could such community or social prejudice be elevated to the category of public interest.
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Losing the modest gains made so far
We have been reminded that while the Constitution guarantees fundamental rights of citizens, it also enjoins on them certain duties that are equally important. But some of the duties cited in the Constitution would oblige citizens to oppose the State in several of the actions it has been taking. For example, one of the duties cited in Article 51A enjoins citizens “to promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities; to renounce practices derogatory to the dignity of women”.
Another duty calls upon citizens “to value and preserve the rich heritage of our composite culture”; yet another asks “to develop the scientific temper, humanism and the spirit of inquiry and reform”. If we were to truly carry out these duties, then the current regressive trends in society as manifest in these latest laws should be energetically countered.
The empowerment of women and gender equality is an integral component of a modern society and India has been making progress in this regard, even though much remains to be done. We are in danger of losing even the modest progress achieved so far. The laws in question are based on the assumption that adult women, equal citizens of India, are not capable of making mature and independent decisions on something as personal and important as choosing a life partner; that they are gullible and may be led astray or that they are unable to make the right decision because they tend to be “too emotional”.
As has been pointed out by several commentators, this is taking us right back to the feudal age when women were treated as property and subject to patriarchal authority. We have self-appointed vigilantes roaming the streets giving play to their worst prejudices and communal hatred, spreading fear and anxiety among the young and families, with the law and order machinery encouraging rather than restraining them.
One remains hopeful that this blatant violation of the Constitution is rejected by the judiciary before further damage is done to the fragile fabric of Indian society.
Shyam Saran is a former Foreign Secretary of India and a Senior Fellow at CPR. Views are personal.
Deb, Muslims including minorities get the benefit of reservations, special grants etc in the name for ensuring equal place and respect in the society but when UCC wants to ensure the actual equality among the citizen, the u have problem. Just because this time Muslims are not the one getting all benefit.
Muslims do not get reservations. Thats a lie. OBC and SC get reservations. The vast majority of OBC and SC also happen to be hindus and get reservations because of their obc/sc status – not their hindu religion – and does not mean that “hindus get reservations”. Some obc/sc also happen to be muslims and get reservations because of their obc/sc status – not because they are muslim. You cannot simply present your religion as muslim and claim reservations in india for university admissions, gov jobs, promotions, loans etc.. There are no such laws.
For whom do people like Saran write this clap-trap which is so very one sided? Does he not know that he would be lampooned for it? Or is he a masochist? Or maybe, this is his ammunition for his evening single malt fueled discussions with his other colleagues who have not only lost their pelf and power but, what even worse, their credibility.
Modi, Yogi, and other leaders always wave Congress Hand.
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People like Shyam Saran are responsible for today’s situation in the borders. These are the people who used submissive diplomacy and objective surrender in their thinking and approach has spoiled the very image of India.
People see through double standards whats happening now is just a little bit of balancing the wrongs done by the system lorded by worthies like you .The shitty system run by good for nothing beaurcrats like you is the reason for this day.Why state controls temples and taken it on itself to civilise us.Your supposed to facilitate and help citizens of this country rather than forcing your dogmas and thinking upon us in name of progressive reforms.Your system facilitated the islamic takeover of kashmir and genocide of pandits and no one was held accountable.You impose your rules ,taxes,reforms on middle class law abiding citizens but fail and run with your tails between legs when it comes to islamists,khalistanis,nagas.In India state respects when you have capacity to damage like farmers .People dont want India to become a islamic shithole .Its not some phobia but a pattern followed in neighboring islamic countries .First reform islam and other religion than lecture us.
India’s embrace of modernity is only in things material. The touch of modernity to thinking would have been a disaster for the established rulers and Babus.
Where is the social regression ?
The arguments here are purely academic. No one wants that marriage between adults should be certified just as no one likes immigration check in airport. But it becomes necessary to preserve the social fabric because a large number of Non-muslim women are forced to convert (not necessarily through violence but through threat of violence and leaving alone). On the other hand, muslim women are jealously guarded from non-muslim men, sometimes leading to murder. Recently Bengali film director Srijit Mukherji married a Bangladeshi muslim actress. Only for that, some Bangladeshi muslims are making hate speech against him on youtube. On the other hand, a famous Bangladeshi singer got married to a Bangladeshi Hindu. But twist in the story, he had to convert to islam for this marriage!
fundamental duties: uniform civil code? ( cough, cough, … )
Pray, tell me what benefit Uniform Civil code will bring on your table.? And how Muslim personal law affects you personally? Apart from laws relating to marriage and few other matters of personal nature, all other laws Commercial, fiscal, economical, criminal etc. are equally applicable to all Indians including Muslims. Demand for UCC by a section of Hindus is not for acquiring certain benefits for themselves, it is to satiate their palate by taking something away from the others i.e. Muslims.
You pointed out rather well. There is a word for that – “schadenfreude” – rejoice at others suffering. Or maybe sadism is a better word to describe it?
I agree, hindus suffer from a false sense of persecution. That muslims are an advantaged class, getting preferential treatment in society in college admissions, jobs, promotions and overall higher standard of living. – at the cost of hindus. Basically that muslims have a leg up in society and have kept the hindus down. This is all false of course.
However, there are problems in islam. No major religion in the world disallows interfaith marriages as strongly as islam does. The requirement that a hindu convert to islam when marrying a muslim exists because once converted, then there is no interfaith marriage! Islam simply does not tolerate interfaith marriages. This is legitimate issue.
“The affidavit goes on to claim that “community interest will always prevail over the individual interest”. ”
Isn’t that case with allowing POLYGAMY to certain community which has been there since constitution was created. Wasn’t TRIPLE TALAQ also serving community interest rathe than individual interest?
Stop talking nonsense, secu Shyam Saran. People like you were able to get away with such nonsense earlier due to lack of mass education.
Mass education????? You mean studying in Whatsapp, Facebook, Twitter and Instagram Universities. If the knowledge and wisdom displayed by the Bhakt brigade in the web is anything to go by, then the standard of education in this country has reached a low never imagined before.
Saran is a Sonia stooge
Politicians in the past have taken short cut and used religion and minority appeasement for electoral wins. The cause is this and everyone who cries now is leaders who see that the “Rules of the game” is changed now. Instead of crying and going into depression, they need to accept the changed reality and adapt with new thinking and strategy. The problem is they seem to have no new ideas and are not able to re-invent themselves or their parties anymore. Some times “ACCEPTANCE” comes after a lot of loss, trials and tribulations. Many parties are undergoing this trails and loss in India now and are crying using various media.
Only one question I have , why a Hindu needs to convert after marriage with a Muslim and why kids born out of these marriages grown up as Muslims, show me one, only one example, where a Kid born out of these marriages grow up as Hindus
Sanjay Dutt for a start.
Why are you worried about all that. Did you marry a Muslim? Focus on your family and livelihood first.
If you loved and married a Muslim or Christian, it would be your personal choice what your religion should be. Love for partner and sharing a life with a partner of one’s choice is more holy, satisfying and meaningful than any religious dogma.
Author has a sense of entitlement because of which he is unable to see ground realities and get stuck in a version of secular India which came into being in 47.
He would do well do read theprint columns itself before starting on a rant to nowhere. Love jihad is very much a fact, one of the various forms jihad being waged again secular India.
Mawali maskin community enjoys unparalleled power and sensitivities so much so that laws are overturned in a secular democracy once they turn violent that too by parliament.
A paper pusher his entire life, sipping english tea, gulping johnny walker in Lutyens, woke generation I may say, has made his thinking rusty buying this secular koolaid.
Keep drinking and when you get a chance visit Kashmiri Hindus in refugee camps past 30 year. Ask them about sensitivities and then ask yourself what you did to alleviate their pain.
That was rhetorical as you and I both know you were just a paper pusher.
Sir , this article is pure academic in nature. The question is why this so called love jihad concept came and it is resonancing with populace. The answer is one sided conversion in interfaith or more precisely hindu muslim marriage. No one arguing against love jihad by giving statistics that how many cases it is Muslims who converts into other religions. Sir if anything happens one-sided it creates problems .this is what now happening in interfaith marriages.
Sir talk about constitution but forget to mention that Muslim personal laws was not governed by parliament . Why ,here parliament not give precedence community right over individual rights.
?
These arguments, though logical to any person of sound mind, are useless because most of the voting public are still thinking like 17th, 18th & 19th century Indians. Modern education does not seem to have brought about modern thinking in our people. Some enlightened souls here and there seem to make no difference to our vast masses. Future seems bleak for our lands and our country. We seem to have forever lost the opportunity to become an economic power with advanced living standards for all. Some Ambanis and Adanis may prosper but vast number of Indians are condemned to poverty, perennial servitude to the rich classes and voting for egomaniacs who use an ancient and great religion for their own twisted purposes.
Religion is the opium of the masses.
The BJP was smart enough to understand that early enough.