Article 21: Right to Privacy Compromised

The Supreme Court in K.S. Puttaswamy v. Union of India (2017) unanimously recognised privacy as a fundamental right stemming from Article 21 of the Constitution of India. The Court held that privacy includes decisional autonomy, that is, the freedom to make intimate and personal choices central to one’s identity (para 248 & 297). The Court acknowledged that privacy is not an absolute right and laid down a threefold test of legitimacy, rational connection, and proportionality on the basis of which the said right could be restricted (para 310). Section 6 of the FRB, however, mandates individuals who convert to submit personal and religious details within 60 days; these details are then displayed publicly for objections. This compels individuals to reveal their personal decisions that are fundamental to their identity, defeating the right to privacy.

Indeed, the Himachal Pradesh High Court struck down a similar provision under the Himachal Pradesh Freedom of Religion Act, 2006, holding that faith is inherently personal, and the State has no right to compel disclosure of beliefs without compelling justification. This reasoning applies with equal force to Section 6 of the FRB, which similarly transforms a private decision of faith into a matter of public record, compelling disclosure without any justification.

Family Standing: A Familial Override Through the Backdoor of Criminal Law

Section 8(1) of the bill empowers the converted person’s parents, siblings, and anyone related by blood, marriage, or adoption to file a complaint against the conversion. While the State may argue that such a provision is a reasonable safeguard for the protection of vulnerable individuals, it stands in stark contrast with the constitutional mandate as laid down by the Supreme Court in Shafin Jahan v. Asokan K.M. (2018). The Court in no uncertain terms held that “Choices of faith and belief as indeed choices in matters of marriage lie within an area where individual autonomy is supreme. Neither the state nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters. They form the essence of personal liberty under the Constitution.” (para 75) Essentially, Section 8 smuggles back a familial control/say into what is constitutionally envisioned to be an autonomous decision. An adult who has made a conscious, and consensual choice of faith can find their partner prosecuted the moment their family disapproves.

Faith Displaced: From Individual Conscience to the State’s Docket

Article 25 of the Constitution of India, which guarantees the freedom of conscience and the right to freely profess, practice, and propagate religion, has already placed faith within the sovereign domain of the individual; yet Section 8(3) proceeds to relocate it entirely. This section empowers the police to take cognizance of a conversion on its own without any complaint, aggrieved party, or grievance. The mandate of Section 8(3) strips faith of its personal character and removes it from the individual’s conscience to the state’s docket. A decision which was central to one’s identity now ends up in the public domain, up for the state authorities to investigate, scrutinise, and prosecute all on their own accord. The individual is no longer the author of their own belief. The state is.

The FRB does not benignly regulate conversion: it constructs a machinery of exposure, familial prosecution, and state surveillance around a decision the framers of the Constitution deliberately placed beyond the reach of any external authority. The Supreme Court has taken cognizance of the growing constitutional unease surrounding similar anti-conversion laws, transferring pending petitions before various High Courts to itself and seeking responses from the Union of India and twelve states. As the court gears up to examine the validity of such laws, it will have to ask a rather discomforting question: whether a law that compels disclosure of faith and intrudes upon the individual’s autonomy can ever be reconciled with the spirit of the Constitution. The answer must surely be no.

The Scope of Lautsi and the Nature of Religious Symbols

Langdon argues that Lautsi v. Italy (2018) was confined to the educational context, rendering it irrelevant to courtrooms. He further contends that Orthodox icons (such as Christ Pantocrator) differ from crucifixes, describing them as “theological portraits” designed to induce worship rather than passive symbols.

This argument overstates the narrowness of Lautsi. There, the Grand Chamber’s reasoning was not limited to pedagogy; it articulated a broader principle concerning state neutrality, religious symbols, and the margin of appreciation. The Court held that the display of symbols, which the government argued reflected the country’s historical and cultural identity [para 67], does not violate the Convention and that the decision “whether or not to perpetuate a tradition” falls within the margin of appreciation [paras 68-71]. Crucially, the decisive factors were the absence of compulsion, proselytism, or indoctrination—not the particular institutional setting [paras 66, 72 & 74].

Langdon’s argument also overstates the legal significance of the distinction between icons and crucifixes. The suggestion that icons are inherently more coercive than crucifixes because of their theological function conflates religious meaning with legal effect. The Court’s task is not to assess a symbol’s spiritual significance within a particular faith, but to determine whether its presence amounts to compulsion or discrimination under the Convention. The crucifix is no less a sacred object within Catholic theology, yet its presence in classrooms did not amount to compulsion, proselytism or discrimination under the Convention [paras 72 & 74].

Nor does the characterisation of courtrooms as uniquely “coercive” environments sufficiently distinguish them from schools. If anything, the Lautsi Court’s acceptance of crucifixes in spaces where impressionable children spend formative years suggests that the mere presence of religious imagery in mandatory settings does not cross the Convention threshold.

Article 6 and the Standard of Impartiality

Langdon further argues that I have underestimated the breadth of the objective test for judicial impartiality under Piersack v. Belgium (1982), claiming that an icon placed above the judge’s bench necessarily raises a reasonable question of bias sufficient to engage Article 6. This reading of Piersack is too expansive. The objective test requires “ascertainable facts” capable of raising doubts as to impartiality. The Court has looked for concrete (not abstract) circumstances linking the judge to the case or a party. In Pitkevich v. Russia (2001), for example, the Court explicitly rejected the argument that a judge’s personal religious beliefs, without more, could establish objective bias. Does the presence of such a symbol provide sufficient evidence to meet the objective test? In Lautsi, the Court stated that there is “no evidence before the Court that the display of a religious symbol…may have an influence on pupils…” [para 66]. Absent evidence that the symbol influenced judicial reasoning, the mere presence of a religious symbol or icon, in itself, is not sufficient evidence to meet the objective test.

The claim that an icon necessarily communicates that justice is administered “under the auspices of a specific faith” assumes the conclusion it seeks to prove. Such symbols may equally convey historical continuity, cultural identity, or the architectural heritage of a building. The decisive question remains whether a specific arrangement creates a real and demonstrable risk to impartiality, not whether it might be perceived as problematic in theory.

European Consensus and Comparative Practice

Langdon dismisses my comparative examples as isolated historical exceptions and argues that the relevant inquiry is whether there exists a European consensus in favour of courtroom iconography. He suggests that the prevailing trend is toward symbol-free courtrooms.

This framing mischaracterises the evidence and the Court’s approach to consensus analysis. Religious symbols remain present in courts and public buildings in Italy, Austria, Spain, Bavaria, and elsewhere. That some states have removed such symbols while others have retained them is precisely the divergence that triggers the margin of appreciation.

The absence of a consensus in favour of courtroom iconography does not amount to a consensus against it. The margin of appreciation does not require states to demonstrate affirmative European endorsement of their practices; it requires the Court to refrain from imposing uniformity where member states have legitimately reached different conclusions.

Neutrality as Pluralism, Not Uniformity

Langdon concludes by arguing that my position conflates individual religious expression with the state’s duty of neutrality, asserting that a symbol-free courtroom best guarantees equality before the law.

The Convention does not require this conception of neutrality. Treating secularism as neutral assumes that it is ideologically empty, rather than a substantive model of state–religion relations. The Court has repeatedly recognised that member states may legitimately adopt different approaches to religion in public life, provided they avoid coercion and discrimination.

The Convention protects pluralism, not homogeneity. Neutrality requires restraint, not erasure.

The Reach of Lautsi

Dr. Portaru compares the case to Lautsi v Italy, but that case was deliberately narrow and the analogy is drawn too far. The Grand Chamber ruled on crucifixes in classrooms, declined to determine whether the crucifix held cultural or Christian connotations, and focused exclusively on the educational context where the state holds significant discretion.

However, Orthodox icons, pictured here, are not crucifixes. They are theological portraits designed to facilitate spiritual encounters and induce worship. The gazing eyes of an icon cannot be equated with a crucifix, and doing so underplays their theological significance. Moreover, psychological research, as summarised in Ritter and Preston (2013), shows that priming individuals with concepts of the divine can produce numerous effects, from decreased anxiety to decreased prosocial behavior. Regardless, Orthodox icons are not passive symbols.

More importantly, Lautsi reasoned that crucifixes did not amount to indoctrination in educational settings. However, courtrooms are not educational spaces – they are coercive environments where the state exercises power over captive audience-members. Defendants, jurors, and litigants cannot leave, and nor can they seek justice elsewhere. There is no analogous alternative to Lautsi’s parental instruction beyond the classroom. The captive nature of the audience means that Lautsi should not directly apply.

Article 6 Issues

Dr. Portaru’s argument is framed in terms of Article 9, but the Court has also asked the parties to consider Article 6. The right to a fair trial is foundational in the Convention, and is a guarantee Strasbourg ensures.

The Piersack v Belgium standard does introduce two questions on objectivity and subjectivity, but Dr. Portaru misapplies the law. The Court asks whether actual bias exists first, and then whether any reasonable question of bias is raised from an objective point of view: “What is at stake is the confidence which the courts must inspire in the public in a democratic society.” [30(a)] This is a deliberately low bar, and requires only that an objective observer could doubt the impartiality of proceedings.

The positioning of an Orthodox icon over the judge’s bench, where non-Orthodox litigants seek justice, is exactly the kind of feature which creates doubt. It communicates that justice is administered under the auspices of a specific faith, and no amount of framing in terms of tradition changes this reality for an atheist, Muslim, or Jewish defendant. Article 6 is substantially engaged and the margin of appreciation is narrowed.

The Consensus Argument

Next, Dr. Portaru points to isolated examples across Europe, urging the Court to invoke the margin of appreciation doctrine. However, the question is not whether some states have retained religious symbols in some public places, but rather whether there is a consensus of iconography in courtrooms; which there is not.

Bavarian Kreuzpflicht are specifically only at entrances of public buildings, not in courtrooms. Even in Italy, the Constitutional Court removed religious symbols from its courtroom as a matter of internal regulation. The examples in Austria and Spain are isolated historical exceptions, which only prove the rule. The trend across Europe is courtrooms without religious symbols. Without a consensus in favour of courtroom iconography, the margin does not straightforwardly apply.

Concluding thoughts

The claim that “[a] symbol-free courtroom is not ideologically neutral but reflects a substantive secular vision of the public sphere” misframes the issue. The rights of the individual to manifest their religion should not be conflated with the state’s duty of neutrality. A courtroom should remain neutral and symbol-free – a neutrality which allows all – to be judged equally before the law. Article 9 should not be used to impose dominant religious norms because of culture and history. The logical conclusion of that argument calls for the erosion of the rights of religion and belief minorities, as well as other rights perceived to be at odds with religion.

Neutrality is not amnesia – it is a commitment. The state may remember its Orthodox heritage without insisting that all who seek justice do so beneath its gaze.

Discrimination and Suppression of Freedoms 


The Criminal Procedure Code violates the core human rights principle that all people are equal before the law by assigning punishment based on social rank rather than the crime itself. Article 9 divides people into classes, giving “scholars” only advice, “elites” a summons and advice, the “middle class” imprisonment, and the “lower class” imprisonment plus corporal punishment, all for the same offence. The Code also normalises slavery by repeatedly referencing “slaves” and allowing “masters” to enforce punishments, contradicting the absolute international prohibition of slavery.

In particular, the Code entrenches religious discrimination. Only followers of the Hanafi school are regarded as Muslims while other sects and beliefs are labelled “mubtadeh” (heretics), undermining the non-discrimination principle and enabling repression of Shias, Ismailis, other Muslim groups, and non-Muslims (Article 2 § 8). With the Imam’s approval, persons who defend or promote “false beliefs” can be killed (Article 14). “Mockery” of Islamic rulings is punished with up to two years’ imprisonment without clear criteria (Article 17) Hanafi apostasy results in two years imprisonment (Article 26), heightening risks of arbitrary arrest and torture, whilst shrinking civic space.

Finally, the Code institutionalises repression. Article 19 criminalises acts labelled “permissible” but prohibited by the Taliban leader, and even punishes criticism of such arbitrary prohibitions, censoring, for example, objections to bans on women’s education. Article 23 § 2 prescribes 20 lashes and six months’ imprisonment for “insulting” Taliban leaders, criminalising dissent; and Article 24, punishes people who fail to act against or report “subversive” meetings, compelling citizens to inform on opponents. Together, these provisions violate freedom of expression, liberty, civilian neutrality, and facilitate arbitrary detention.

Intensified and Arbitrary Punishment 


Several provisions of the Taliban’s Code enable arbitrary punishment and violate fair-trial rights. Punishment is often based on vague “corruption” concepts. A “baghi” (rebel) is defined as someone spreading “corruption” who cannot be reformed without death (Article 2 § 11). Article 13 orders destruction of “places of corruption,” even without proving an owners’ responsibility. Article 40 treats anyone present at a “gathering of corruption,” even involuntarily, as complicit. These provisions make possible the killing of political opponents and human rights activists and the closure of community venues all while underming legality, intent requirements, and the presumption of innocence.

Flogging as a punishment is prescribed very extensively and without clear limitations (e.g., Article 18), even though corporal punishment and degrading treatment conflict with the principle of human dignity and the absolute prohibition of torture and cruel punishment. This, in turn, significantly increases the risk of systematic violence and the institutionalisation of practices contrary to human rights values.

Finally, any Muslim who witnesses “sin” is allowed to punish sinners, empowering ordinary people, morality police, and clerics to enforce punishments (Article 4§6). For crimes that are punishable by “hudud” (fixed, mandatory punishments for crimes considered offenses against God) and “diyat” (monetary compensation to victims or their heirs in cases of bodily harm or homicide), only the act is considered, ignoring intent and capacity (Article 2 § 14).

Domestic Violence 


The Criminal Procedure Code inadequately protects children and women, instead normalising abuse. Teacher violence is only banned if it causes fractures, torn skin, or bruising, but other physical, psychological, and sexual abuse go unpunished (Article 30). Fathers are allowed to punish 10-year-old sons for behaviour deemed against their interests, including abandoning prayer (Article 48). For women, husbands are only penalised for beating their wives with a stick if that causes serious injury and can be proven (Article 32), ignoring other forms of violence. Husbands can also execute “tazir” — discretionary punishment ranging from scolding to corporal punishment — for disobedience (Article 4 § 5). Women who leave home without permission, and relatives who shelter them, are criminalised (Article 34), endangering victims.

Conclusion

In sum, the Taliban’s new “Criminal Procedure Code for Courts” means nothing less than that fundamental rights protecting equality, dignity, physical integrity, and freedom of religion and expression, are legally violable in Afghanistan. The human rights NGO Rawadari published a more extensive analysis of the new Code’s provisions, urging halting implementation and international action.

At the international level, it bears remembering that in September 2024, Australia, Canada, Germany, and the Netherlands announced a joint, landmark initiative to hold the Taliban-led de facto authorities in Afghanistan accountable for systemic violations of the UN Convention on the Elimination of All Forms of Discrimination against Women. This action seeks to address the “gender apartheid” occurring in Afghanistan, of which this new Code is yet one further example, and may lead to a case before the International Court of Justice.

The applicants argue that displaying an icon of Jesus Christ in Greek courtrooms violates their rights under Articles 6 and 9 of the European Convention on Human Rights, which protect the right to a fair trial and freedom of religion or belief respectively. They contend that such symbols undermine judicial impartiality, particularly where proceedings concern matters related to freedom of religion or belief. Greek courts rejected these claims, holding that the icon reflects a long-standing national tradition and does not affect the objectivity or fairness of judicial proceedings.

The Court’s jurisprudence provides a clear reference point. In Lautsi v. Italy, the ECtHR’s Grand Chamber held that the display of crucifixes in Italian public school classrooms did not amount to indoctrination and fell within Italy’s margin of appreciation. The Court characterised such symbols as “passive” and emphasised the absence of coercion or proselytism. Importantly, it rejected the notion that pluralism requires the elimination of religious symbols from public space.

That reasoning applies with equal force to courtrooms. While judicial impartiality under Article 6 requires that judges be free from bias, the ECtHR has consistently assessed it by reference to concrete facts. In Piersack v. Belgium, the Court clarified that subjective perceptions of bias are insufficient; doubts must be objectively justified. The mere presence of a religious symbol, without evidence of pressure, discrimination, or influence on judicial reasoning, does not meet the threshold of a Convention violation (see Pitkevich v. Russia).

The applicants’ argument relies on a conception of neutrality that equates it with the absence of religious reference. Yet neither the Convention nor the Court’s case law supports such an approach. Neutrality under the Convention is a principle of restraint: it requires states to avoid coercion or proselytism, not to erase symbols rooted in a society’s historical, cultural and religious identity.

Forced removal of long-standing religious symbols does not create a neutral space; it substitutes one worldview for another. A symbol-free courtroom is not ideologically neutral but reflects a substantive secular vision of the public sphere. As the Court has made clear in Leyla Şahin v. Turkey and S.A.S. v. France, states enjoy a wide margin of appreciation in regulating religion in public life, particularly in cases involving historical traditions.

In Greece, the presence of Orthodox icons in courtrooms is deeply embedded in national tradition and constitutional identity. Their display does not compel litigants to engage in religious practice, nor does it signal judicial alignment with a particular party.

Comparative European practice further supports this interpretation. Religious and historically rooted symbols remain present in courts and public buildings across Europe. Italian state institutions display crucifixes; historic court buildings in Austria and Spain contain religious artwork; and in Bavaria crosses are displayed in government offices. Even in France—often cited as a model of strict secularism—domestic courts have accepted religious imagery in public buildings where it serves a cultural or historical purpose rather than a confessional one.

The Union of Atheists v. Greece, therefore, offers the ECtHR an opportunity to reaffirm a principled understanding of neutrality. Drawing on the Grand Chamber’s reasoning in Lautsi v. Italy, neutrality under the Convention does not require historical amnesia, nor the erasure of cultural and religious markers that have shaped Europe’s legal orders.  Properly understood, neutrality safeguards pluralism by allowing diverse traditions to coexist in the public sphere, provided the state refrains from compulsion or exclusion.

If the Court were to equate neutrality with the systematic removal of religious symbols, it would risk transforming a principle designed to protect freedom into a tool for enforcing uniformity.

Applicability of fatwa to corporations

This 2025 decision upheld the 2022 Federal Court case of SIS Forum (No.1), applying the 1998 Federal Court precedent in Kesultanan Pahang v Sathask Realty which established the principle that corporations (companies incorporated under the Companies Act 1965) cannot profess a faith. Accordingly, it considered that the majority in the Court of Appeal erred in not adhering to the doctrine of precedent by purporting to distinguish the case of SIS Forum (No.1) from the present case.

The Federal Court emphasised that the performance of religious duties such as paying Zakat (Islamic mandatory almsgiving/tax) by corporations on behalf of the Muslim members does not consequently subsume a corporation as a ‘person professing the religion of Islam’ in the context of the Malaysian Federal Constitution (Item 1 State List, Ninth Schedule). Thus, corporations are not subject to Islamic laws and edicts, including the impugned fatwa.

Significance

This landmark judgment clarified several important issues.

First, the justiciability of fatwa by civil courts. Article 121(1A) of the Federal Constitution does not oust the jurisdiction of civil courts to judicially review the making and gazetting of a fatwa, and its constitutionality and legality. Article 121(1A) merely states that civil courts ‘shall not have jurisdiction in respect of any matter within the jurisdiction of the Syariah courts’.

Along this vein, the Court maintained that Article 121(1A) should always be read together with Article 121(1). Article 121(1), properly construed, preserves the judicial power and the sole prerogative of civil courts to interpret the Federal Constitution and determine the constitutional validity of all laws, including the state legislation gazetting the fatwa, which ultimately derives its legality from the Federal Constitution (paras 8-17).

Second, federal-civil/state-Syariah jurisdictional and legislative competence. Article 121(1A) also does not ‘enlarge’ or ‘grant jurisdiction’ to the Syariah courts beyond the limited categories of subject-matters granted to them by Item 1 of the State List in the Ninth Schedule of the Federal Constitution. Nor does it confer legislative power to the Selangor State Legislature to enact state legislation (including the law gazetting fatwa) beyond its jurisdiction conferred by Item 1.

According to the Court, Article 121(1A) merely clarifies the jurisdiction of civil courts (i.e., superior courts) vis-à-vis Syariah courts. It does not oust the exclusive interpretive power of civil courts in determining which subject-matters are within the jurisdiction of Syariah courts. Only when a matter is clearly determined by the civil courts to rightly be within the jurisdiction of Syariah courts, the civil courts will then cease to possess jurisdiction over the litigant and the subject-matter under Article 121(1A) (paras 28-33; applying Rosliza Ibrahim).

In this judgment, as opposed to the sole dissent’s approach to automatically deferring jurisdiction to Syariah courts simply because a fatwa ‘is grounded on Hukum Syarak’ (Islamic laws or dictates) (paras 127-130), the Court majority’s approach is more consistent with the constitutional supremacy doctrine under Article 4(1) which proclaims that any laws are subject to scrutiny only by the civil superior courts (para 28).

Finally, the force of law of fatwa. A fatwa, once gazetted, carries legal force and is not merely a suggestion, contrary to the respondents’ contentions. The impugned fatwa (para 2) stated that any publications with elements of liberalism and religious pluralism should be prohibited and can be seized. It further instructed the Malaysian Communications and Multimedia Commission (MCMC) to block social media websites which contravene Islamic teachings (para 3).

The Court considered these an intrusion upon federal law and federal powers because the fatwa being a legal gazette of the Selangor State Legislature cannot instruct federal bodies like MCMC under the jurisdictional delineation prescribed by the Federal and State Lists in the Federal Constitution. Thus, it nullified these two paragraphs of the fatwa (paras 80-88, 92).

Conclusion

This case arguably provides a renewed momentum for NGOs like SIS Forum (Malaysia) in its long-term advocacy for Muslim women’s rights, gender equality and justice by challenging patriarchal interpretation of Islam notwithstanding contemporary challenges. By clarifying the constitutional limits of fatwas, the Court demarcated the legal boundaries of religious authority, thus reasserting constitutional supremacy and entrenching constitutional guardrails against the encroachment by religious bureaucracy. This confers legitimacy for SIS Forum (Malaysia) to break the monopoly of discourse by Islamists and to resist the systemic shutdown of pluralist ijtihad (independent reasoning) within the larger backdrop of institutionalisation of Islamism, which the impugned fatwa is emblematic of.

Unlike the earlier anti-conversion laws, however, modern criminalisation works on two levels. It goes further than restraining involuntary conversions, to casting  suspicion on any “marriage done for sole purpose of unlawful conversion or vice-versa”. While the statute seems to criminalise marriage involving coerced conversion (and vice versa), its mechanisms empower both societal and state actors to routinely police even consensual inter-faith unions. The law subjects a private decision like marriage to intrusive public scrutiny by mandating certain procedural pre-requisites, including but not limited to, intimating the proposed conversion to the executive authorities and seeking prior permission. Non-compliance not only carries a penalty of imprisonment but also renders the conversion illegal, obfuscating the validity of the marriage itself. Practically speaking, these administrative hurdles presume involuntariness in conversion-linked marriages, rendering the freedom to marry and convert an illusory right.

Viewing this problem from a theoretical standpoint exposes an inherent tension: criminal law is stretched beyond its legitimate bounds.  Since Puttaswamy (privacy judgement) and Shafin Jahan (choice in marriage judgement), the right to choose one’s partner forms an inviolable part of the right to life under Article 21. Bringing marriage into the net of criminal law, therefore creates a direct conflict between state power and individual liberty. Marriage falls within the innermost sphere of privacy i.e., the “intimate zone”, as articulated in Puttaswamy. The “intimate zone” is not as easily permeable as the “private zone” and the outermost “public zone”, and it demands extraordinary justification for state intervention. In effect, the criminalisation of marriage, preceding or succeeding the conversion, is simply a subset of broader criminalisation of unlawful conversion. The scope of its criminalisation, therefore, necessitates delineation.

Criminal law is meant to protect people from real harm, not to treat every private choice as suspicious. The work of  theorists like R.A. Duff reminds us that the idea of ‘social contract’ is not limited to individuals giving up their rights to the state for order. The state steps in only when this trust is broken (say, conversion against one’s will). The Indian anti-conversion laws, however, invert this logic. As discussed, the presumption that couples cannot make sincere choices on their own, strikes at the core of the modern contractarian model. The said statutes also blur key criminal law distinctions. Under the criminal law theory, unlawful conversion-linked marriage constitutes a mala prohibita offense, as its wrongness arises not from any inherent harm, but solely from legislative fiat, as opposed to mala in se offences. The inherent wrongs (here, involuntary conversions) justify punishment. But the wrongs, declared so by law, require greater caution.

The overreach, in criminalising the conversion-linked marriage as a derivative offence is two-fold. First, it pushes the limits of criminal law by punishing what is essentially a subset of an already covered offence. Second, it enters the personal domain of intimate choice. In “provid[ing] for prohibition of unlawful conversion”, inter alia, “by marriage”,  the law often punishes more than it can possibly protect. The inter-faith couples, who are already navigating societal resistance and religious frictions, endure the social costs of this law. In sum, such criminalisation is both doctrinally redundant and at odds with settled law. The normative limit is clear: the state may regulate coercion, but not choice.

Bhagwati Pathwar’s case was no different from the ones that came before. She and her partner, an inter-faith couple in a live-in relationship, approached the Allahabad High Court apprehending harm from her family. The couple said to the court that they are adults who intend to marry and need protection as the police had not taken cognizance of their complaints so far. The Allahabad HC relying on The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021 (UP Act) rejected the request of the couple. The court stated that the couple had not applied for conversion under the UP Act, which is applicable to both married couples and those in a relationship ‘in nature of marriage’. It added that ‘it is not considered desirable that live-in-relationship of the petitioners be protected’ as it contravenes the UP Act and that ‘the petition has no force’.

The UP Act has a very specific stated intention – to criminalize forced religious conversions. It requires any intended conversion for marriage to go through an approval process. However, it nowhere states that conversion is mandatory for marriage – India has a secular law under which inter-faith heterosexual couples can marry without converting. The UP Act also does not mention or deal with, in any manner, state protection for inter-faith couples. To apply the UP Act to a petition for protection, is therefore at best absurd and at worst, incorrect in law. That the judgement does not engage with constitutional rights of privacy and choice, and instead prioritizes statutory compliance, also makes it susceptible to criticism.

Apart from doctrinal matters, it is interesting to consider the emotional norms of love and companionship being created and reproduced by this case. Renata Grossi argues that various theoretical works that define legal objectivity do not exclude emotional thinking. In fact, emotional thinking and analysis is a method in law, as per which judicial reasoning is seen to be firmly located in the subjective positions, cultural mores and societal values of judges. Empirical works on law and emotion by scholars such as Anleu & Mack, Bergman Blix et al. who have worked with judicial officers and lawyers, have shown that ‘objectivity’ in law is constantly emotionally managed by judges and all others involved in legal processes. Even maintaining an outward neutral appearance requires significant amounts of emotional labour.

A literal reading of this case and the terms used reflects the emotional choices made by the judge. The judge calls the petitioners’ relationship as not one ‘desirable’ to be protected. What is desirable vs. not desirable appears to be emotionally informed as the word ‘desire’ (also understood as want or need) reflects a choice made by the judge, informed by her moral notions of which relationship is deemed appropriate by her. This also brings up the question of – whose emotions are incorporated, deemed relevant in legal processes and decision making. Protection petitions are often filed by couples who want to live together, perhaps marry and share a life. While it is easier to just call this a matter of choice of a person, I’d argue that this choice is firmly located in the emotion of love.

Here by ‘love’ I do not mean a stereotypical, linear notion of individualistic romance and rebellion, but embodying a much more complex role, what Mody calls ‘an intimate and political subjectivity, as an aspect of self-making, as the making of kinship’ and Veena Das calls ‘repudiating politicisation, while inhabiting certain norms and still sustaining intimacies and love’. This emotion of love finds no space in Bhagwati Pathwar’s case and instead the case becomes about compliance with statutory law. In this way, an emotional hierarchy is created by the judge where, whose emotions are acknowledged and whose are discarded, is clearly a matter of power. Arguably, a constitutional matter such as this ought to be ‘about’ the rights bearing citizen and her rights to life, liberty, which are inextricably connected to her emotions of love, intimacy and desire. The noncompliance with the UP Act is only a facade under which the judge’s own moral disgust takes the center and it’s the judge’s emotion that decides the case.