Syed Zainul Hasan Rizvi
ABSTRACT
Marriage is purely a personal matter and the state's intervention in such cases victimizes the couples, as there are adequate laws which deal with marriages. As per Human Rights Watch, "A woman can be harassed by (individuals within) her family for a variety of reasons, including refusing to enter into an arranged marriage, being a victim of sexual assault, seeking a divorce even from an abusive husband, or (allegedly) committing adultery." The simple suspicion that a woman has acted in a manner that "dishonours" her family is enough to bring about a life-threatening assault. Therefore, in this research paper, the authors would be analyzing various factors, ranging from the history of the legislation to its constitutional validity. In a country where even age-old practices and gender-biased laws like homosexuality and adultery are being held to be unconstitutional as they violate fundamental rights like the right to privacy, right to life, right to equality, right against discrimination etc. guaranteed under "art. 14, 15 & 21 of the C.O.I," legislation like love jihad is discriminatory not only on the basis of religion but also gender, given the common perception of male influence in a patriarchal society. The gender bias is evident from the fact that most of the cases filed under anti-conversion laws are against male members of society. This law is nothing but following the path of social evils that were practiced before Independence in India for a very long period of time in order to curb the voice of women in society. The act goes right to the heart of the legally guaranteed right to privacy.
1. INTRODUCTION
In the words of Immanuel Kant, German Philosopher, “Religion is the acceptance of all our roles as divine commands[1].A secular state is described as one in which no official religion is practised. It also ensures that the state has no religion of its own and that all citizens of the world are similarly entitled to religious rights, including the freedom to profess, observe, and spread any religion.[2] Secularism was defined in S.R. Bommai Case [3] where it was determined that secularism is a fundamental characteristic of the Indian Constitution. In the Indian Constitution, the principle of secularism is omnipresent. Political democracy will not survive long unless it is supported by social democracy. "A way of life that embraces liberty, equality, and solidarity as life's values" is what social democracy entails. - Dr B.R. Ambedkar. Though the legislature claims that Anti-conversion Laws like the U.P Prohibition of Unlawful Conversion of Religion Ordinance Act, 2020 is for the protection of women belonging to backward communities, the realities prove otherwise. Few contend that anti-conversion or Love Jihad laws implemented under the BJP's rule have been abused and are causing confusion and disharmony in society by targeting a certain community and gender. The question is whether in a country where even age-old practices and gender-biased laws like homosexuality and adultery are being held to be unconstitutional or unlawful as they violate fundamental rights like the right to privacy, right to equality, right against discrimination, right to life, etc., guaranteed under the Constitution, such legislation is not only discriminatory on the basis of religion but also gender, given the common perception of male influence in a patriarchal society. According to Human Rights Watch's definition, "a woman can be exploited by (individuals within) her family for a variety of reasons, including refusing to enter into an arranged marriage, being a victim of sexual assault, seeking a divorce despite an abusive husband, or (allegedly) committing adultery." The mere thought that a woman has acted in a way that "dishonours" her family can lead to a life-threatening assault. In nations where such practises are still practised, love jihad laws pose a threat to the couple's life[4]. The UP Prohibition of Unlawful Conversion of Religion Ordinance 2020[5] is focused on patriarchal society. This act aims to lower the status of Hindu girls as well as silence the voices of Hindu women in the state of Uttar Pradesh. The oldest male member of the household, as Henry Maine pointed out, is the family's head and has full influence over the family.[6] Similarly, this act portrays the male dominance over women and is trying to restrain their freedom of choice.
2. HISTORY BEHIND LOVE JIHAD LAWS
Love jihad laws are nothing but they are on the path of social evils that were practiced before Independence in India for a very long period of time in order to curb the voice of women in society. The Arya Samaj launched the Shuddhi (purification) movement in 1920, led by Swami Dayanand Sarawati, whose main goal was to reintroduce Hindus to their religion after they had adapted other religions. The sections mentioned in Loving Jihad Laws are a reflection of the Arya Samaj movement because the 1920s were marked by a spurt of competitive communalism, which provided fundamentalist propaganda machineries a germane ground to flourish. Banners and slogans with communal titles were being distributed in the markets by the members of the Arya Samaj in present the country has witnessed that there are organizations such as Anti Romeo squads established in the state of UP have humiliated and targeted many married couples also and girls number of times.[7] Not only in India has such discriminatory laws and evil practises been practised on a number of occasions in society, but in the world's history, particularly in the United States, there was a time when discriminatory anti-miscegenation laws prohibited women from marrying people of different races in order to prevent interracial marriage, and such laws resulted in the prohibition of marriage between Native Americans and African Americans in Louisiana way back in 1400.[8] Even Nazi laws forbade inter-racial marriage and granted the right to marry and have children to "men and women of full age without any limitation due to race, nationality, or religion." "Equal rights are guaranteed both during and after marriage."
According to Dr. B.R. Ambedkar, endogamy provided the basic foundation for the caste system by prohibiting intermarriage and was also responsible for women's inferior status through caste groups. As a result, the Hindu Code Bill, one of his most ardent works since independence, scrapped caste and sub-caste laws in sanctifying Hindu marriages, ensuring that all Hindu marriages, regardless of the castes to which the couples belong, would have the same sacramental and legal rights. The Bill's removal of caste restrictions weakened the Brahmanical patriarchy's structural ties between caste, kinship, and property, and recognized the politically equal Indian woman citizen as a person, not only as the bearer of her family's, kinship's, and community's honour. Monogamy, divorce, and an equitable share of property for women were all included in the bill. Hindu orthodoxy vehemently opposed the resolution, calling it a "manifesto of unrestricted rights and equality for women." Ambedkar, on the other hand, remained steadfast in his determination to see the bill through and resigned in protest of the government's and parliament's lukewarm support. A diluted version of the bill was eventually approved. Unfortunately, the yoke of Brahmanical patriarchy still binds Indian society. Most marriages are arranged, and those who defy caste or religious boundaries face varying degrees of social wrath. The UP ordinance takes advantage of society's tyranny. The law is an aggregated version of the laws prohibiting inter-caste marriages, which Dr. B.R. Ambedkar strongly opposed in-toto. Also, the bare feet of love jihad can be traced from the history of the world where in the past such laws were implemented, but they were not able to maintain their sustainability as they were discriminatory in nature and were flourished out.
3. WHY ARE THESE LAWS OPPOSED?
The primary duty of the government is to maintain law and order in its state. In the words of Locke, “wherever law ends, tyranny begins”[9] The imminent breakdown of public order and the rule of law, by placing the lives and liberties of ordinary people in jeopardy, has the potential to erode citizens' confidence in their democracy and undermine its authority. Large-scale violence and destruction will jeopardise a country's social stability, jeopardise national security, and derail economic progress and development prospects. Whether there is a breakdown of public order, that is due to the legislature's and executive's inadequacies. In Ram Manohar Lohia Case[10] The five-judge bench emphasized the difference between public order and law and order situations. The Hon’ble SC decided that in the case of "public order," a specific activity must have an impact on the community or the general public because it "embraces more of the community than 'law and order,' which only affects a few individuals." Also, the said act, i.e., "UP Prohibition of Unlawful Conversion of Religion Ordinance 2020," motivates communally divisive agendas and has a negative impact on societal peace and harmony. Section 3 of the challenged ordinance states that "re-conversion" to a person's former faith is not prohibited, even though it is tainted by deceit, coercion, misrepresentation, or any other means. Through this peculiar provision, the law seems to contradict its own vicious theories of forceful conversions and breach of public order. "It is yet another attempt, in a string of communally charged initiatives, aimed at reaping electoral dividends and eventually leads to a law breach of law and order because this act is targeting two communities and is trying to create hatred between them, which leads to a breach of law and order."
4. CONSTITUTIONAL VALIDITY AND VIOLATION OF FUNDAMENTAL RIGHT
"Denying people access to marriage …it’s denying them the status and dignity of being ordinary citizens in society."
- Justice Albie Sachs South Africa
When any legislation has been made the primary requirement to be satisfied is that it should be constitutionally valid. The Love Jihad laws are against the fundamental right guaranteed under Article 14[11], 15(3)[12] and 21[13] of the constitution. The Right to Equality[14] being the magnificent cornerstone of Indian Democracy.[15] The Apex Court in Onkar Lal Bajaj Case,[16]opined that the inability to apply one's mind is a facet of subjective power exercise. In the lack of a valid classification, the equals' right to equality cannot be ignored unilaterally.[17] Where the definition is based on the assumption that women are frail, a Hon'ble Constitutional Court, such as this one, shall reject such arguments.[18]
The Hon’ble SC in Sabarimala judgement,[19] by Chandrachud J., held that: “The postulate of equality is that human beings are created equal. The postulate is not that all men are created equal but that all individuals are created equal. To exclude women from worship by allowing the right to worship to men is to place women in a position of subordination. The Constitution should not become an instrument for the perpetuation of patriarchy. The freedom to believe, the freedom to be a person of faith and the freedom of worship, are attributes of human liberty”.[20]In its gendered state, discrimination is still based on sex. The courts have been able to separate sex from gender and uphold overtly patriarchal laws due to the inclusion of the term "only" in this Article.[21]
In Vasantha Case,[22] a clause of a law excluding women from working in factories at night was declared illegal because it discriminated solely on the basis of sex by the Madras HC. Even in Joseph Shine case.[23] the SC stated that "considering a free man as the property of another is anathema to the ideal of dignity. “It was stated that Article 15(3)[24] is an empowering provision that permits the state to create laws that protect and empower women and children. Article 15 clause (3)[25] is ineligible to be considered beneficial law. The right to privacy and personal liberty, on the other hand, is not unlimited; it is susceptible to reasonable constraints when the public good is at issue. Right, the limits of personal liberty are impossible to define in black and white; additionally, such liberty must serve the general good. Article 21 does not protect a married couple's right to have a consenting sexual relationship outside of marriage. "In view of Article 21, a legal infringement of privacy must be justified by a statute that is both fair and legal," the court said.
Art. 14 has been declared as the Basic Structure of the C.O.I. by the Hon’ble S.C. of India.[26] Further, Art. 14 only permits Reasonable Classification for achieving specific ends and forbids class legislation.[27] As per Art. 14[28], any legislation that is racial in nature must have an intelligible differentia and a logical connection to the goal that is being pursued. If the object itself is discriminatory, then the explanation that the classification is reasonable is immaterial.[29]The expression “intelligible differentia” means a distinction that can be comprehended.[30] An element that separates or places someone in a particular state or class from another and can be understood. Under Art. 15[31]discrimination on the basis of faith, ethnicity, caste, sex, or birthplace is illegal.[32] In Art. 15, the term "discrimination" implies an aspect of unfavourable prejudice.[33] The state is not prohibited from making any "special allowance" for female members, according to Art. 15(3).[34]
The proportionality doctrine has its origins in Europe. The proportionality test is a "heuristic tool" for determining whether a restriction on a basic right is legal.[35] It requires that a rights-limiting action be taken for a good reason, with suitable and sufficient methods, and a proper balance created between the value of accomplishing the goal and the harm caused by restricting the right to do so.[36] Proportionality has become the gold standard for judging the legitimacy of restrictions on individual rights provided by the constitution and by international human rights courts.[37] In Chintaman Rao case, the Apex Court stated that a measure that restricts freedom must be equal to the right.[38] Om Kumar case[39] was a lawsuit filed by a plaintiff against the Indian government. The term "proportionality" was defined as follows in light of regulatory rules: "Proportionality" means that the legislator or administrator employed the most appropriate or least restrictive methods to fulfil the legislative or administrative order's purpose in a reasonable manner. According to this perspective, the court would ensure that legislative and regulatory authorities strike a careful balance between the potential negative impact of laws or administrative decisions on people's rights, freedoms, and interests, while also remembering why they were passed in the first place. Legislative and regulatory agencies are granted discretion or a variety of alternatives, but it is up to the court to determine if the choice made violates those rights. That is what the term "proportionality" means.
As stated in Puttaswamy Case,[40] such an invasion must satisfy three requirements: (i) legitimacy, which presupposes the presence of law; (ii) necessity, which is established in terms of a valid State interest; and feasibility, which is defined as the ability to carry out the invasion and (iii) proportionality, which guarantees that the object and the means used are in a rational relationship. In a greater degree of review, the court considers not only whether the statute represents a valid purpose, but also whether the goal is important enough to justify the violation of a constitutional right.[41]
As per the Black’s Law Dictionary, the right to privacy refers to a person's right to privacy, which includes the right to be free of unwelcome intrusion. Individual sovereignty of the body and mind is preserved thanks to privacy. Individual autonomy refers to a person's ability to make important life decisions. Privacy is a value, a cultural state, or a situation aimed at individuals seeking mutual self-realization, and it differs by culture. The right to privacy was viewed as a representation of an inviolate individuality, a source of freedom and liberty against which the human being had to be protected. The need to be alone has been justified by the right to privacy.[42]Article 21 allows a person to choose their choices in a variety of areas of life, such as whether and how they eat, how they wear, what religion they follow, and a slew of other areas where liberty and self-determination necessitate a decision to be taken in the privacy of one's mind. Placing the Love jihad laws on a higher pedestal we find that the love jihad law is contrary with the basic articles of UDHR which states that men and women have the right to marry and have a family both having equal rights[43]
In the current “LOVE JIHAD” act Section 8(1)[44], which makes it obligatory to obtain conversion consent two months in advance, is inherently arbitrary and infringes the "right to privacy." The state has no part in interfering with people's personal preferences because privacy is at the heart of the human identity and recognises each person's right to make choices and make decisions on things that are private and personal to them. The core elements of privacy are the security of intimate intimacy, the sanctity of family life, marriage procreation, the home, and sexual preference. The said act also requires family members of those who have converted to file a FIR under section 4[45]. In contexts where interfaith marriage has willingly taken place, this part of the "Love Jihad" is used as a form of instrumental abuse.
The present Act when tested on the doctrine of proportionality violates Article 14[46], 15(3)[47] and 21[48]. Section 3[49] of the U.P Ordinance Act, 2020 makes it illegal for one citizen to change another's religion by marriage. Section 4[50] which allows any family member of the alleged victim either related by blood or marriage or adoption can file an FIR leading to a non-bailable arrest warrant against the accused. Section 5[51] aims to ban forced conversions by imposing a five-year jail sentence and a fine of Rs. 15,000 on someone who is found guilty of forced conversion. Section 6[52]gives courts the power to nullify any marriage entered into solely with the aim of unlawful conversion or for the sole purpose of marriage. These laws, which give the government police authority over a citizen's choice of life partner or religion, go against Article 21.[53]
5. JUDICIAL INTERPRETATION
That in the case of Gian Devi[54], a three-judge bench ruled that if a girl is above the age of eighteen, no restrictions on where she can live or with whom she can live can be imposed. India is a democratic and free republic if a boy or girl doesn’t agree of an inter-caste or inter-faith union, the best they can do is cut off social relations with the son or daughter; they also cannot intimidate, commit, or provoke acts of abuse, or offend the person involved in the marriage.[55] In the Lata Singh case, the court also ordered that if a major boy or girl marries a major woman or man, the couple will not be abused by anyone, nor will they be threatened or subjected to acts of abuse, and that anyone who makes such threats, harasses, or commits acts of aggression, whether on his own or at his instigation, will be held accountable by the police, who will file criminal charges against them and take more harsh action as required by statute.
The Supreme Court in the case of Shafin Jahan case[56] had condemned the practise of labelling a woman as "weak and vulnerable, capable of being abused in several respects" in the Hadiya case for moving against the tide of social acceptance. The Apex Court observed that “In determining if Shafin is a suitable partner for Hadiya, the High Court has strayed into forbidden territory. Since our decisions are ours, they are valued. Recognition of intimate personal choices is not based on social acceptance. Personal liberty is also protected by the Constitution from disapproving audiences. Our Constitution's strength comes from its appreciation of our culture's heterogeneity and diversity. Marriage's complexities, including private decisions on if one is willing or not willing to marry and how to marry, are beyond the state's influence. As upholders of constitutional liberties, courts shall ensure that these rights and freedoms are protected.
In Loving v Virginia[57], the SC of the US struck down 16 remaining "anti-miscegenation" legislation related to interracial marriage in the United States. The marriage of Richard and Mildred Loving, a white man and Black woman was declared unlawful by the Virginia state Statute. The Court held that the Code of Virginia was solely based on racial discrimination and was trapping equal treatment and such restriction was in contravention with the 14th Amendment. Chief Justice Earl Warren observed that the state has no role in deciding upon the freedom of marriage of the individuals. This decision is often cited as a watershed movement in the dismantling of “Jim Crow race laws”. The Virginia Code (Sections 20-59) had lengthy and broad clauses that prevented marriages notwithstanding explicit agreement, similar to the UP 'Love Jihad' ordinance. They were written in such a manner that they allowed intimidation of couples before marriage, similar to how the UP ordinance is being used even though no conversion is taking place.
Since dignity is impossible to imagine without choice, personal preference is inextricably linked to dignity. True, constitutional restraints apply, but no one, and we mean no one, has the authority to interfere with the fulfilment of the expressed decision in the absence of such a constraint. Human dignity has both intrinsic and practical value, and privacy is a vital component of integrity.[58] Human dignity is a legal right or a legally protected interest in and of itself as a natural attribute. Dignity and freedom are inextricably interwoven in their instrumental character, with one acting as a means of achieving the other. The term "privacy" describes a set of safeguarded rights. The protection of freedom protects citizens from unconstitutional government participation. It prohibits the government from discriminating against citizens. The state's destruction of sacred personal space, whether physical or emotional, is a violation of the pledge to avoid unconstitutional government intervention. When these safeguards collide with gender, a private zone emerges that incorporates all of the important aspects of gender identity. Home, sexuality, procreation, and sexual identity are all part of a person's dignity. Above all, the right to privacy recognizes the inalienable right to choose how one's liberty is practised.
It would be difficult to conceive of integrity in its full glory if one's freedom to express one's own choices was restricted. When two adults marry freely, they choose their own route; they marry because they believe it is their destiny and they have the moral authority to do so. People have this freedom, and any violation of it is a violation of the Constitution, it must be expressed unequivocally. When a person reaches the age of majority, he or she is no longer subject to the influence of others in making important decisions.[59]
In the Salamat Ansari Case,[60] the Hon’ble HC of UP declared that “We don't see Priyanka Kharwar and Salamat as Hindus and Muslims, but rather as two mature people who have been living together and happily together for a year of their own free will. The courts, especially the Constitutional Courts, are obligated to protect an individual's right to life and liberty as provided by Article 21.” It also added that “the right to live with a person of one's choice, regardless of religion, is fundamental to one's right to life and personal liberty. Interference in a personal relationship would be a significant infringement of the two parties' right to freedom of choice.”
6. CONCLUSION
Aristotle once said, "Government by-laws is superior to government by men" and it is time we bring laws into order. However, the current Love Jihad Act, which is being implemented in nearly 9 states in India, is a law that depicts patriarchal society, and thus it is a law that places government by men superior to government by law due to its discriminatory nature. That Marriage is a significant decision and a part of a person's life. It is a means for a person to express and exercise his or her personal freedom of choice. It is a blessing that the other spouse, family, and culture agree, but those who do not have the good fortune of winning the consent of their loved ones have the full right to have their decisions covered and valued. No one should be able to mess with a person's ability to choose a partner. It's sad the law allows for this kind of intervention. Articles 14, 19, and 21 have been dubbed the "golden triangle," and all of them are violated here.
In the words of Locke, "Wherever the law ends, tyranny begins." But in the present act, there is tyranny within the law and such tyranny is revolving in the states with the implementation of such acts and is degrading the status of women and uplifting the male-dominated society in these various states and giving unrestricted powers in the hands of the administration to intervene in the personal lives of the citizens. The harsh penalties imposed for violating the fictitious ordinance are contrary to penological jurisprudence. The Act particularly states that the reversal of the presumption of proof on the accused is in violation of both the Criminal Judicial System's doctrine and Section 106 of the Indian Evidence Act. This act also violates India’s obligations under international law, including Part III of the Constitution, UDHR, ICCPR, CEDAW, etc. This act also takes away judicial discretion from the Family Court concerned to adjudicate on the issue of marriage and consent and gives the command that any such marriage would be void. These acts are creating a “Hostile Discrimination” between different sects of religious groups and such discrimination leads to violation of Art 14.
As per the Special Marriage Act, 1994,[61] the parties must file a Notice of Intended Marriage in the relevant form with the Marriage Registrar of the district in where at least one of the parties to the marriage has resided for the past 30 days. If no one has objected, the marriage may be solemnized once thirty days have passed from the day on which notice of an intended marriage was published. The couple may choose to have their marriage solemnized at the Marriage Office of their choice. Section 7 of the Special Marriage Act speaks about objections raised against such marriage[62] while Section 8 mentions the Procedure on receipt of the objection.[63] Marriage being a personal matter, religious conversion associated with marriage should only be challenged and made void in the cases where there is no belief or faith. For example, in Robasa Khanum v. Khodabad Irani[64], the court held that “the conduct of the spouse who converts to Islam must be based on the rules of justice, equity and good conscience.”
In the current Love Jihad act Section 8(1)[65] makes it obligatory to obtain conversion consent two months in advance which further, might be a period of time where the couple might face pressure from the family or there might be a risk of honour killing. The said act also requires family members of those who have converted to file FIR under section 4[66].In contexts where interfaith marriage has willingly taken place, this part of the "Love Jihad" is used as a form of instrumental abuse. Moreover, when there is a Special Marriage Act, 1994, which exists for such marriages, then what was the necessity to implement Love Jihad laws? From the above-mentioned laws and case laws, it can be understood that marriage is a personal aspect of an individual’s life and laws like these will lead to more chaos in a multi-religious and diverse country like India. As in our country, there are still cases of honour killing where it involves violence, generally, murder, perpetrated by male family members against female family members who are suspected of bringing shame or dishonour to the family name. Such a law will ultimately give rise to such crime against women, whereby also depriving them of their integral right.
[1] Immanuel Kant: Philosophy of Religion https://iep.utm.edu/kant-rel/, [2] Indra V. Rajnarayan 1975, AIR, SC 2299. [3] S.R. Bommai v. Union of India., AIR 1994 SC 1918. [4]Venkatesan, Over 1,000 ‘honour killings' take place every year, The HINDU, https://www.thehindu.com/news/national/Over-1000-lsquohonour-killings-take-place-every-year-Report/article16192236.ece [5] U.P Prohibition of Unlawful Conversion of Religion Ordinance Act, 2020. [6] Dr. N.Y. Paranjape, studies in jurisprudence and legal theory 8th edition. [7] https://www.newindianexpress.com/nation/2017/mar/23/particular-castes-being-targetted-by-anti-romeo-squads-in-uttar-pradesh-says-opposition-mp-1585066.html\ [8]Martin, Byron Curti,” Racism in the United States: A History of the Anti-Miscegenation Legislation and Litigation”, pp. 1026, 1033–4, 1062–3, 1136–7. [9] Book II, JOHN LOCKE, Two Treatises of Government that even magistrates must abide by the law. Chap. XVIII Of Tyranny, Section 202. [10] Ram Manohar Lohia v. State of Bihar, AIR 19996 SC 740. [11] INDIA CONST. art. 14. [12] INDIA CONST. art. 15 cl. 3. [13] INDIA CONST. art. 21. [14]Supra note at 10. [15] Indra Sawhney v. Union of India, A.I.R. 1993 S.C. 477. [16] (2003) 2 S.C.C. 673. [17]Virendra Krishna Mishra v. Union of India, (2015) 2 S.C.C. 712. [18] Indian Young Lawyers Association v. The State of Kerala, W.P. (Civil) No. 373 of 2006. [19] Id. [20] Id. [21] Jaising, I., “Gender Justice and the Supreme Court” in Kirpal, B.N. et al (eds.), Supreme But Not Infallible: Essays in Honour of the Supreme Court of India, Oxford India Paperbacks, 2000, p. 294. [22] Vasantha R v Union of India, 2001 II LLJ 843. [23] Joseph Shine v. Union of India, 2018 SCC OnLine SC 1676. [24] Supra note at 11. [25] Id. [26] M Nagaraj v. Union of India, A.I.R. 2007 S.C. 1. [27]M.P. Jain, Indian Constitutional Law 1411 (Jasti Chelameswar & Dama Seshadri Naidu eds., LexisNexis 8th ed. 2018). at 910. [28] Supra note at 10. [29] Subramniam Swamy v. CBI, (2014) 8 S.C.C. 682. [30]D.K.Srivastava, Intelligible Differentia in India, Asian Encyclopedia of Law (Mar. 3, 2017), https://india.lawi.asia/intelligible-differentia/#tab5. [31] INDIA CONST. art. 15. [32] Id. [33] M.P. Jain, Indian Constitutional Law 1411 (Jasti Chelameswar & Dama Seshadri Naidu eds., LexisNexis 8th ed. 2018) at 969. [34]Supra note at 11. [35] Bank Mellat v HM Treasury (No 2) [2014] AC 700, 790-91 (UK Supreme Court). [36] Aharon Barak, Constitutional Rights and Their Limits (CUP 2012) 3. [37] Alec Stone Sweet and Jud Mathews, ‘Proportionality Balancing and Global Constitutionalism’ (2008) 47 Columbia Journal of Transnational Law 73, 161; David Beatty, The Ultimate Rule of Law (OUP 2004) 159-88; David Law, ‘Generic Constitutional Law’ (2005) 89 Minnesota Law Review 652. [38] Chintaman Rao v State of MP AIR 1951 SC 118. [39] Om Kumar v. Union of India, (2001) 2 SCC 386. [40] Justice K. S. Puttaswamy (Retd.) & Anr. v. UOI & Anr., (2017) 10 SCC 1: AIR 2017 SC 4161. [41] R v Oakes, [1986] 1 SCR 103, 138 (Canadian Supreme Court); R v Big M Drug Mart Ltd, [1985] 1 SCR 295, 352. [42] Dr. P.K. Rana, Right to Privacy in Indian Perspective, 2IJL 07(2016). [43] UDHR. art. 16. [44] U.P Prohibition of Unlawful Conversion of Religion Ordinance Act, 2020, Section 8(1). [45] U.P Prohibition of Unlawful Conversion of Religion Ordinance Act, 2020, Section 4. [46] Supra note at 10. [47] Supra note at 11. [48] Supra note at 12. [49] U.P Prohibition of Unlawful Conversion of Religion Ordinance Act, 2020, Section 3. [50]Supra note 44. [51] U.P Prohibition of Unlawful Conversion of Religion Ordinance Act, 2020, Section 5. [52] U.P Prohibition of Unlawful Conversion of Religion Ordinance Act, 2020, Section 6. [53] Supra note at 47 [54] Gian Devi v Superintendent, Nari Niketan, Delhi 31. [55] Lata Singh v. State of U.P., (2006) 5 SCC 475. [56] Shafin Jahan v. K.M. Ashokan, AIR 2018 SC 357. [57] Loving v Virginia, 388 U.S. 1 (1967). [58] Supra 36. [59] NandaKumar vs. State of Kerala., (2018)16 SCC 602. [60] Salamat Ansari v. State of UP, Crl. Mis. Writ Petition No- 11367 of 2020. [61] Special Marriage Act, 1994. [62] Special Marriage Act, 1994, S.7. [63] Special Marriage Act, 1994, S.8. [64] Robasa Khanum v. Khodabad Irani., (1946) 48 BOMLR 864. [65] Supra note at 43. [66] Supra note at 44.
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