Laws Are Being Passed to Bypass the Judiciary and Give Control to a Pliable Bureaucracy

It is surprising to see how Bills and Ordinances are being pushed through without empirical evidence. Neither of the two states has conducted a survey of how many inter-faith marriages have taken place in a specified period of time for necessitating such a drastic law. It is an attempt to bypass the legal system, says NEERAJ MISHRA.

It is very significant that the BJP government at the centre and BJP ruled states have enacted Acts and ordinances that seek to increase the role of the executive which it directly controls.

It is an undisguised attempt to bypass the legal system altogether.

Two issues which are at the moment agitating citizens at various levels—the farm laws and The ‘Prohibition of Unlawful Conversion Bill 2020’ or what is popularly known as the love jihad bill of UP and later similarly enacted in Madhya Pradesh, clearly lay down provisions which seek to short circuit the courts.

The key dispute redressal mechanism in the farm laws lay down that the aggrieved party can approach the SDM to mediate and decide. It even goes on to expressly prohibit approaching the courts.

“If anything interfaith and inter-region marriages strengthen the idea of India,” says Priyanka Dube, a lawyer in Chhattisgarh High Court.

If a mutually agreeable solution can not be found under the Farmers (Empowerment and Protection) Agreement of price Assurance and Farm Services Act 2020  then the SDM can also refer it to a board he himself nominates. The parties can approach the SDM again, who will act as the authority to settle the dispute. The SDM’s order can be challenged before the collector.

The SDM and the collector’s orders will be equivalent to a civil court order.

Similarly both the “love Jihad” bills prepared by the two states one of which is now an Act clearly state that the parties intending to enter into an inter-faith marriage must first inform the SDM and seek his permission.

Furthermore, the SDM or the district magistrate as the case may be can order an investigation into the veracity of claims that the marriage is not taking place under circumstances defined in the bills as duress, inducement, use of force and so on.

There are specific jail terms for everyone involved in the process from the intending couple to their relations and even the religious facilitator (read priest, father, karmkandi etc).

EXCUSE FOR HARASSEMENT

In the love jihad matters, the couple can approach the court but that will happen only when everything has been lost and they have faced an unprecedented amount of harassment at the hands of the officialdom as well as anti-love jihad squads.

The life of grown-ups who want to marry out of their own volition with the person they want to is being sought to be curbed through the intervention of the bureaucracy.

The summary powers of both the civil and police administration would have been exerted to the fullest by the time any couple approaches the court and gets relief. A few couples have already been tortured thus by the UP police and self-appointed keepers of the Hindu faith.

“The game is summary powers. These anti-conversion laws are designed in a manner that the administration can take whatever steps it deems necessary immediately. And we all know the administration moves when it is asked to and in the direction, it is ordered to,” says a very senior police officer.

Contrast the provisions of  “Uttar Pradesh Vidhi Virudh Dharma Samparivartan Pratishedh Adyadesh 2020” (prohibition of unlawful religious conversion) Act or for that matter the proposed Madhya Pradesh Bill with the Special Marriage Act 1954 which allows an interfaith couple to get married after a 30-day notice at the District Magistrates office without any provision of the draconian “investigation”  by the SDM or the DM.

It certainly invites objections but none of them can be based on religion and if the marrying couple is not violating a set of already existing law such as age and monogamy then there is nothing that the DM can do to stop the marriage.

Former MP chief minister Digvijay Singh, says: “The sole purpose of the love jihad bill is to divert attention from current issues such as price rise and overall economic downturn. There are enough provisions in various Acts including the IPC which can be used to prevent forcible conversion if reported,”

India might be the first democratic country to interfere in legitimate marriages through state intervention and not the established legal system. 

Madhya Pradesh was amongst the first states in Independent India in the ‘60s to pass an anti-conversion law to prevent the activities of Christian missionaries in tribal areas.

The state also had a history in the same vein. The Sarguja and Raigarh princely states had passed similar legislation in the ‘30s and ‘40s.

But none of them sought to specifically prevent interfaith marriages.

NO EMPIRICAL EVIDENCE

What is even more surprising is the rush for these Bills and ordinances without much empirical evidence. Neither of the two states has conducted a survey of how many inter-faith marriages have taken place in a specified period of time for necessitating such a drastic law.

The last time Oomen Chandy’s government in Kerala felt the need for such a law to prevent what it called an international conspiracy for ‘Islamisation of  Christian girls”, it conducted a survey and found that it was not more than 447 girls and over an extended period it came to 2667.

Do such small numbers justify such stringent laws in the first place?

“If anything interfaith and inter-region marriages strengthen the idea of India,” says Priyanka Dube, a lawyer in Chhattisgarh High Court.

As more girls from the North-East have taken up jobs in the mainland—especially the metros– the understanding and sensitivity towards the region has increased and there are more of them getting married and settling down despite resistance back home.

Two of the three farm laws have the provision where the interference of civil courts has been nullified. In the case of Love Jihad bills, the SDM himself can declare a marriage null and void if he is satisfied that any of the provisions have been violated.

While the Allahabad High Court has issued notice in a plea challenging the UP ordinance , it has not been struck down as yet by the courts. 

The life of grown-ups who want to marry out of their own volition with the person they want to is being sought to be curbed through the intervention of the bureaucracy.

India might be the first democratic country to interfere in legitimate marriages through state intervention and not the established legal system.

While the Allahabad High Court has issued notice in a plea challenging the UP ordinance, it has not been struck down as yet by the courts.

The farm laws have been passed and the agitation might result in certain changes but provisions relating to bypassing of courts will certainly be challenged, it seems.

(Neeraj Mishra is a lawyer based in Raipur, Chhattisgarh. He earlier worked as a journalist with mainline media organisations. The views are personal.)