India: Till the state recognises us

While the Hindu Reform Bills of the 1950s did much to use state power to reform the institution of marriage, this is the first time the Indian state has emphatically announced that it, and it alone, will be the vehicle through which marriages will be legally validated. This represents a massive shift of legal authority from communities to the state. It moves the regulation of marriage away from a pattern of autonomous ordering towards formal legal supervision. And it deepens the process whereby the state expands the domain of secular authority over religious norms, or traditional forms of authority. Neither self imposed commitment, or authority of community, or divine intermediaries can legally validate a marriage. The validation will now have to be to the satisfaction of the state. The Leviathan finally stamps its authority on marriage. This is an extraordinary moment in the history of state formation in India.

This moment was long in the making. Starting with the Indian Christian Marriages Act of 1872, through to the compulsory registration acts enacted by five state governments — Andhra, Gujarat, Himachal, Goa and Karnataka — the state has been putting in place the elements of compulsory legislation. India expressed its normative commitment to the idea when it signed the Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). Article (16) 2 of CEDAW enjoins signatories to make the registration of marriages compulsory. But our excuse was always this: the normatively desirable is not the practically feasible. Indeed, we submitted to CEDAW the reservation that compulsory registration would be impossible to implement in a country like India with its diversity and illiteracy. The Supreme Court has finally declared no alibi can last forever.

But enacting a law and effectively implementing it are two different things. No one should be under any illusion that the process of formalising a vast panoply of informal arrangements is going to be an easy task. For one thing, as anecdotal evidence in Gujarat has shown, endowing the state with any form of power runs some inherent risks. The common experience of most citizens is that on most occasions on which they are licensed, stamped, assessed, monitored or registered by the state, the experience is not entirely painless. Rules will have to be very carefully framed, so that they do not empower people who should have no say in the process to intercede and make the exercise of individual rights difficult.

The process by which formalisation takes place will also have to be sensitive to different kinds of variation across communities, not a procrustean framework that licenses state officials to recognise marriages at their discretion. The state will also, in practice, have to create mechanisms for dealing with de facto child marriages, for simply annulling them will not answer the profound challenge they pose.

Second, there is a general impression that even in the states that have enacted compulsory registration, there has not been substantial use or enforcement on the ground. It is hardly the case that the states that have enacted this formal legal requirement have seen a major social revolution as a result. Third, the implementation of such a law will depend upon a whole range of institutional capacities that do not exist at the moment. For instance, even our rate of registration of birth and deaths is considerably lower than it should be. If the registration of marriage will require proof of age as it must if it is to be a tool against child marriage, then all other information systems have to be operational. Since one of the proposals is to have panchayats register marriages, local bodies will have to be endowed with necessary administrative and technological infrastructure.

But rather than throw our hands up in despair, the implementation of these kind of registration requirements should be seen as an opportunity. The Supreme Court is making one point that should be central to all governance debates in India, not just the regulation of marriage. It is absolutely impossible to enforce rights, provide justice, target intended beneficiaries, or punish transgressors, in the absence of reliable databases and formal documents. Across the board, we make laws and policies; assign rights and responsibilities, without any means of ascertaining identities of intended beneficiaries. The most vulnerable are the least capable of having their rights enforced in the absence of appropriate formalisation. We cannot run a state in the 21st century, and hold it accountable, without proper identification of citizens or proper documentation. Yet our state invests the least in rationally building up its own capacities in these areas. This occasion should be used as an opportunity to think about effective and appropriate formalisation of rights across the board, whether it be women’s property rights or land records.

Certainly, legal formalisation is a necessary instrument for the protection of rights and the promotion of justice and can be a vital instrument for preventing child marriage, illegal bigamy and the protection of rights. But there is another cautionary tale in the fact that many of the social ills that have occasioned the court’s intervention still exist. The process of social reform has been entrusted largely to state institutions and it is a big question whether state intervention alone will be sufficient to get rid of a range of social ills and conflicts. In any effective reform the state and society must meet each other half way. Legal enactment of compulsory registration does not do away with the need for social mobilisation, it only plugs one loophole. This is also a way of saying that though heaven cannot legally validate your marriage, the law alone cannot fully determine its real meaning either.

by Pratap Bhanu Mehta
Indian Express, February 16, 2006

The writer is president of Centre for Policy Research. Views are his own.