Times have changed since the enactment of the Special Marriage Act, 1954, which aimed to transcend the barriers of caste and religion in order to give Indians substantive rights when it came to choosing a life partner. But care was taken to ensure the necessary checks and balances. For instance, Section 6 of the Act requires a public notification at the office of the district marriage officer concerning the personal details of the couple intending to marry, including their religion, residential addresses, phone number and so on at least 30 days before the marriage can be solemnized. In a nation where underage marriage and human trafficking are not uncommon, Section 6, demanding the disclosure of details, was probably intended to be a deterrent so that the authorities could take timely action against such transgressions. The clause of public intimation of personal details has now been challenged in the Supreme Court by a petition that argues that Section 6 violates the fundamental right to privacy. Such an apprehension is not unwarranted even though the problem lies not in the spirit but the misuse of the clause. Earlier this year in Kerala, notices of inter-faith marriages under the Special Marriage Act were reported to have been circulated on social media by right-wing groups as instances of ‘love jihad’ and led to communal tensions in some places. There is thus the possibility of bureaucratic corruption leading to such sensitive data falling in unscrupulous hands. The consequences, the tradition of honour killings shows, can be lethal for the couple.

The way forward around the dilemma is not simple, either for the law or its custodians. The momentum in favour of individual privacy must be respected without weakening the protective framework that is meant to prevent abuse. For instance, instead of issuing a public notice, can the marriage registrar be authorized to examine the veracity of the application and alert the authorities only when mala fide intent is suspected? Here too, there must be serious deliberations on the method of assessment of such applications so that a routine examination does not get transformed into an act of surveillance. Perhaps the ruling of the Punjab and Haryana High Court, which said that the State and its institutions must not be seen as “laying snares and landmines” in the path of consenting adults from different faiths, must be taken as a model to emulate. The tension, however, lies elsewhere. Marriage still requires a societal seal of approval of what is essentially a deeply personal bond. Such approval is predicated upon the possibility of interference.