In the Indian context, eloping and marrying outside of one’s faith or caste is a common occurrence but made socially and legally difficult, and as a result couples often approach courts and request the state’s protection. The Indian law on asking for protection by couples in a relationship, often inter-faith, inter-caste, queer and in some cases married, has been pretty much settled by the Supreme Court. A writ court can grant protection to a person once a prima facie case of grave risk of violence, and abuse has been established (usually a threat from family members is sufficient to show this) and the petitioner has no alternate remedy. However, The Print’s report on an Indian High Court’s systematic denial of such petitions begs a close examination of these cases, to analyze what has changed, which norms inhabit these cases and whose emotions prevail in decision-making.

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.