Does the Special Marriage Act, 1954 Infringe the Constitutional Right to Privacy?

The Supreme Court, on 24 August 2017, delivered a historic judgment in the K.S. Puttaswamy case where it declared that ‘Right to privacy is Fundamental Right under Article 21 of the Indian Constitution’. The right can be derived from Articles 14, 15, and 21 and thus does not need any separate articulation and is considered as a natural right but the right is not absolute and thus is subject to reasonable restrictions as every other fundamental right in the Constitution of India.

Recently, a case (Nandini Praveen v. Union of India) has been filed in the Supreme Court which challenges the constitutional validity of the Special Marriage Act, 1954, and the petitioner has contended it to be violative of the Right to marry and Right to privacy.

General Overview of the Case

The Supreme Court bench comprising of Chief Justice S.A.Bobde, Justice JS Bopanna, and Justice V Ramasubramanian heard a case which was filed by a Kerala based law student, Nandini Praveen, through advocates Nishe Rajen Shonker and Kaleeswaram Raj which challenged the validity of the provisions of the Special Marriage Act as violative of Right to Marry as well as Right to Privacy.

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The petition filed challenges Section 6(2) and 6(3) of the Special Marriage Act, 1954 which allows and requires parties to an intended marriage to publish their private details for public scrutiny 30 days before the intended marriage. The petition, thus, states that these provisions violate Article 14- Right to Equality as well since no other laws in the Indian Constitution prescribe to do so.

Following this, the Supreme Court has issued a notice to the Central Government on this issue. The reply by the Central Government is still awaited.

Issues

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The Supreme Court, in this case, framed the following issues:

  1. Whether Section 6 (2) and 6 (3) of the Special Marriage Act, 1954 are violative of Articles 14, 15, and 21?
  2. Whether Section 7, 8, 9, and 10 of the Special Marriage Act, 1954 are violative of Right to Marry and Right to Privacy?

The Decision

As mentioned above, the Supreme Court has issued a notice to the Central Government in regards to this issue and the reply from the side of the Central Government is still awaited and thus, no decision has been given by the Supreme Court as of now and the case is still pending.

How are the Provisions of the Special Marriage Act, 1954 Violative of Right to Privacy?

The provisions of the Special Marriage Act (hereinafter referred to as ‘SMA’), 1954 violate the Right to Privacy due to the following reasons:

  1. Section 6 (2) of the SMA, 1954 states that the notice of such intended marriage should be provided by the couple under Section 5 of the SMA, 1954 must be kept in a conspicuous place in the Marriage Officer’s office while Section 6 (3) states that in case if the couple does not permanently reside in the local limits of the district of the Marriage Officer, the notice must be sent to the Marriage Officer of the district in which they permanently reside so that such officer can make the notice public.
  2. Both these sections violate Article 14 and Article 15 of the Indian Constitution which provides for the Right to Equality and Right against discrimination since the requirement of providing public notice and permitting objections to the marriage are not applicable for the couples who marry under either the Hindu Law or the Islamic Law and thus also violates Right to marry.
  3. Also, along with Section 6 (2) and (3), Section 7, 8, 9, and 10 are also violative of Article 14, 15, and 21 since these provisions open the private information of individuals to scrutiny and impede their right to control access to such information which in turn leads to violation of their Right to Privacy which is an integral part of the right to life and liberty under Article 21.

Critical Analysis About Right to Privacy as a Fundamental Right

The Right to Privacy is considered as an integral part of the Right to Life and Personal Liberty and thus comes under the ambit of Article 21. It is considered as the core principle of human dignity and also preserves the personal intimacies, the sanctity of family, marriage, procreation, the home, and sexual orientation.

The Right to Privacy got the recognition as a Fundamental Right through a chain of events which involves various cases which came before the Supreme Court and are as follows:

  1. M.P. Sharma v. Satish Chandra (AIR 1954 SC 300): The case dealt with the issue of Article 20 (3) which is the right to self-incrimination but also talked about the right to privacy in the passing and were merely stray observations and thus Supreme Court, in this case, held that Right to Privacy was not a Fundamental Right.
  2. Kharak Singh v. State of U.P. (AIR 1963 SC 1295): In this case, the Supreme Court gave an ambiguous judgment where it was stated that any intrusion into a person’s home is a violation of liberty (relied on the judgment given by U.S. Courts on Right to Privacy) but the judgment negated and failed to recognize the Right to Privacy.
  3. Gobind v. State of M.P. (AIR 1975 SC 1378): The bench, in this case, showed an inability to overturn the judgment given by a larger bench in Kharak Singh case, and thus again Right to Privacy was not regarded as a Fundamental Right.
  4. State of Maharashtra v. Madhulkar Narain (AIR 1991 SC 207): In this case, Supreme Court said that even a woman of easy virtue was entitled to the right to privacy under Article 21 and no one can invade her privacy as and when he likes.
  5. Mr. X v. Hospital Z (AIR 1995 SC 495): In this case, Supreme Court held that Right to Privacy is a Fundamental Right under Article 21 but it is not an absolute right and thus is subject to reasonable restrictions.
  6. Ms. X v. Mr. Z (AIR 2002 Del. 217): In this case, the Delhi High Court held that Right to Privacy, though a Fundamental Right, is not absolute.
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Finally, in the case of Justice K.S. Puttaswamy v. Union of India, Right to Privacy was recognized as a Fundamental Right enshrined in Article 21 of the Constitution.

Conclusion

The provisions of the SMA 1954, in my opinion, are violative of Right to Privacy since they are against the personal anatomy and dignity of individuals and also amount to infringement of rights of the couple to marry with dignity, which formed the right to life guaranteed under the Constitution.

Thus, the provisions should be struck down by the Supreme Court since they are unjust, illegal, and unconstitutional.


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