By Athman Khilji
Introduction
While arguing for equality of capabilities, Sen emphasized on the importance of ensuring that we do not restrain ourselves by viewing justice through a “unifocal view of equality”.[1] Instead, he urged to pedestalize the demand for “fair processes”[2] and ensure procedural mechanisms in the justice system remain unbiased, unadulterated, and fair to all those it encompasses. He argued that in pursuance of this, viewing individual capabilities may not be the sole method of assessment, but is indeed of great significance.
The overarching premise of this paper is the assessment of Justice and Freedom through the ‘Capabilities Approach’ in the “Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020”[3] (referred to as “the Law” hereon) that is meant to curb ‘Love Jihad’, a term given to categorize the act of Muslim men manipulating and deceiving Hindu women into marriage predominantly for their conversion into Islam.
Freedom as Perceived by Sen: Effective Freedom and Capabilities Without Dependence
“To see liberty exclusively in terms of who is exercising control is inadequate.”[4] Sen paints a picture of the interlude between religious freedom and the capabilities approach, coupled with substantive freedom.[5] Sen imagines an individual’s desire in attaining a particular objective, wherein such an objective may be specifically preferred by social institutions and hence will effectively “guide public policy”[6] in making the objective, a societal norm. Such a form of freedom might not require any control or even “exercise of power” in the individual’s pursuit of certain freedoms of choice. In an Indian context, a Hindu living in a Hindu-dominated constituency may not have to go through the structural obstacles in order to practice his/her faith as much as a Muslim or Christian might (being social minorities). Simply put, such freedom is dependent on who holds the power of distributing such freedom. Sen, for example, argues that Emperor Akbar’s pronouncement of the State’s equidistance from religion, guaranteeing individuals of all faiths to exercise their freedom. However, if Akbar had decided differently,[7] the subjects of his kingdom would have been left with no power or ability to retaliate against Akbar’s commands. Sen calls this approach to freedom “the republican view”[8] wherein an individual’s liberty, i.e. the ability of an individual to make choices, is not absolute and is dependent on the “favour of others”.[9] Simply put, the right to practice one’s religion freely is dependent on the consonance of the State’s stance on the public policy in question. “Effective Freedom”[10] on the other hand, is obtained when governing bodies and institutions cannot eliminate the ability of such persons even if they want to do so.[11] Sen, using Pettits’ defence of the “republican” view, argues that capabilities obtained through dependence on institutions cannot amount to real freedoms. Substantive freedom, in its truest form, is being able to act a certain way and practice certain beliefs independent of external factors and motives.
Nussbaum and Sen on Women’s Freedoms: Drawing a Parallel to Hindu Women Struck by the Ordinance
At this juncture, it is important we ask ourselves: Who are anti-conversion laws meant to ‘protect’? An honest assessment of the same will allow us to decipher the pretense under which the Government that criminalizes ‘forced conversions’ functions. Firstly, it is clear whom the law claims to protect: the supposed ‘victims’ of such forced conversions, i.e. Hindu Women. The Law, in turn, categorizes these women as ‘oppressed’ and ‘wanting to be saved’. The State then accommodates its ulterior political motives by exploiting the position they falsely place the woman in by masquerading the law as a ‘saviour’ of the helpless and the vulnerable. To put this into further context, the Capabilities Approach further clarifies how these laws perceive women empowerment. Nussbaum argues that “unequal social and political circumstances give women unequal human capabilities.”[12] When women are placed under different social conditions, it is unfair to assess the ‘well-being’ of these women from different regions, religions and cultures under a uniform, consistent lens.[13] Men’s preferences of what the women of their household (siblings or spouses) should do or concern themselves with are shaped by “social traditions of privilege and subordination.”[14] Lesser privileged women are led to believe that their preferences and desires are being adequately met by society, oblivious to its absence due to the deprivation of education and information to sufficiently decide what is best for themselves. They are socially conditioned into believing that an inferior living standard is what they deserve and that substantive freedoms and rights, which can be obtained through mass mobilization and political participation, are not within their reach.[15]
On the issue of broadly categorizing the victims as Hindu Women, the Law not only dangerously asserts the idea that these women require ‘protection’ against ‘cunning’ young men, it also overly oversimplifies the existence of these women to a single identity: being a Hindu, vulnerable to ‘conversion of one’s own faith’. Sen deals with this idea in detail: Individual human beings, in the present intellectual climate, cannot be labelled with a singular identity, as individuals find themselves affiliated to a plurality of identities and associations.[16] To see an individual from the lens of a single social identity would reinforce an inadequate understanding of the breadth and complexity of the multiple traditions and ideals individuals identify with. Therefore, the reduction of a woman to merely her religion as a means to dictate the life she should live and with whom she may or may not interact with, is a comprehensive denial of significant portions of her identity. Furthermore, this reduction also leads to a social bifurcation from ‘other identities’ that end up creating tensions between like-minded social groups by inserting some sense of “emotional loyalty”[17] in the individual towards the community he/she has been reduced to. This over-simplification has further negative implications, including the otherization of Muslim men who are treated alike under a common misdemeanour. Such a reduction of identity not only villainizes the ‘Muslim man’ as someone who is potentially threatening to the identity of one’s faith or social standing, but it also divides Hindu Women.
Evaluating Anti-Conversion Laws: What Does it Do to Enhance Women’s Agency?
On individual agency, a critique of the capability approach, i.e. its inability to offer a framework on whether “people have the freedom or not to exercise their capabilities”[18] before assessing whether one can realize those capabilities, is greatly relevant. By deciding whom a woman can or cannot marry, the Law takes upon itself to socially condition the women into thinking that they, in fact, should not have the capability to marry an individual from a different faith, based on a skewed reasoning of the law-makers, devoid of a bonafide enquiry into what the woman truly desires. Labelling something as ‘obscene’ or ‘oppressive’ can only be debunked when the individual is allowed to question the deprivation of such opportunity. Going back to Nussbaum’s argument, these women were indiscriminately reduced into believing the State does what is universally just.[19] She argues that the central question must not only be about a person’s satisfaction on doing something, but whether she is in the position to do such a thing.[20] Laws such as this are, in fact, most brutalizing to the alleged ‘victim’, as it aids their subordination under the guise of false dreams of liberating them from lives of captivity, exploitation and faithlessness. Syed contextualizes this argument quite well: he argues that any movement or institution that treats liberty and the ‘freedom of choice’ of a woman as a form of oppression, effectively “undermines the actual agency”[21] of Indian women, snatching away their right to marry whom they choose to, regardless of the faith they follow. The capability approach strives to improve individual capabilities by acknowledging the specific drawbacks an individual might encounter living in oppressive, sexist communities. Such an approach would effectively address their hardships and increase their quality of life and well-being. Section 5(1) of the Ordinance states that if it is found that a woman has converted into another religion for the sake of marriage, her punishment would actually be doubled to that of an ordinary punishment under the Ordinance.[22] Furthermore, Section 3 delegitimizes the conversion that took place, effectively dismissing the fact that a conversion ever happened, even if such conversion may be proved later that it was made out of free will and devoid of ‘undue influence.’[23] Such draconian laws that usurp the free will and opportunities available to women under the guise of ideological oppression do more to undermine the individual agency of a woman than any improvement of her lifestyle and individual aspirations.
The Interlude of Functioning and Capability: Reassessing Justice
Nussbaum observes: “The state fails to do its job if it fails to intervene with human functioning: affirmative shaping of the social environment is necessary to elevate all citizens to the threshold level of capability.”[24] The final part of this paper concerns itself with the interlude of functioning and capability to address certain paternalistic overtones discussed in the paper, and finally attempt to draw solutions to create a more egalitarian community that advocates for opportunity and expression. We must ask ourselves: Must public policy shape itself to satisfy the functioning of an individual, or should it concern itself with the safeguarding of their capabilities to choose? Nussbaum argues that capabilities are the “appropriate political goal.”[25] The illustration Nussbaum employs is a mild deviation from the Rawlsian idea of basing social institutions around certain needs and requirements in the form of ‘primary goods’. It is argued that one must adopt the approach that subscribes to practical reason, which best encapsulates the opportunity under which the individual enjoys maximum satisfaction from the objectives put forward by himself/herself.[26] An individual must have the opportunity to participate in political dialogue, express his/her dissent against a state policy, or most pertinently, enter a marital relationship with an individual she finds fit. Whether or not she chooses to exercise these opportunities are irrelevant to the adopted approach, as it should be, owing to the fact that individual capabilities need not calibrate with the masses, nor does it need to seek legitimacy from it.[27] Applying this understanding to the issue in hand, it is the duty of the State not to decide what an individual’s freedoms should be, but its primary concern must be in ensuring the people have the capabilities to enhance the freedoms they choose to realize. Sen argues that deprivation of opportunities in the hands of individuals become lesser of a social concern, and more about the failure of the State to provide the individual with capabilities.[28] It can be submitted that the real delivery of justice and protection of individual liberty lies in the fact that the State must ensure that any woman must be able to befriend, interact, and marry the individual she chooses to in the capacity of her constitutional safeguards and rights, irrespective of whether she chooses to realize that opportunity to convert for the man she chooses to marry. There is a considerable difference between a chosen life and a ‘constrained’ life; the capability approach concerns itself with the latter, advocating that the individual’s decision must not be curbed by external limitations. Such an objective may be met by adopting the combined capabilities approach where the opportunities of an individual are further cemented by ensuring the social functions and the institutional environment is sufficient for the equitable realization of opportunities.[29] An individual’s liberty of choice is only ensured when there is nurturing of those rights by the institutions and the people that carry out its functions, procedural safeguards set out by the State and the ultimate choice of functioning, leaving the final choice of realizing the opportunity to the individual.
In conclusion, with the findings for the objectives sought, we can draw a series of assertions: a) In the issue of substantive freedoms, freedom obtained by capabilities with an external dependence cannot amount to real ‘effective freedom’, as the liberty of choice is perennially subject to the enforcer of the law or policy, that makes the freedom obtainable, but not supreme. b) While dealing with the issue of individual agency, when an institution formulates a uniform criterion of what ones’ capabilities ought to be, based on the ideals of ‘well-being’ sought after by the institution, such socialization would only amount to further subjugation and subordination by rules and ideals shaped by what the institution believes ‘an ideal society’ is and defines well-being based on those ideals. Such a preference would only undermine the individual agency, remaining ignorant to the agential capabilities based on personal deliberations and desires. c) Thirdly, in the interlude of functioning and capabilities, law-making institutions must always resort to the capabilities approach to ensure every individual enjoys equitable opportunities to exercise their capabilities to the best of their ability in pursuit of enhancement of their freedom, irrespective of the choice the individual finally makes.
The author, Athman Khilji, is an undergraduate law student at Jindal Global Law School (JGLS), Sonipat.
[1] AMARTYA SEN, THE IDEA OF JUSTICE 297 (2009).
[2] Id.
[3] Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020.
[4] Amartya Sen, Liberty and Social Choice, 80 Journal of Philosophy (1983).
[5] SEN, supra note 1, 251
[6] SEN, supra note 4, 303.
[7] SEN, supra note 1, 37
[8] Id.
[9] Id.
[10] Id.
[11] Philip Pettit, Capability and Freedom: A Defense of Sen, 8 Economics and Philosophy (2001).
[12] Martha Nussbaum, Capabilities and Social Justice, 123 International Studies Review (2002).
[13] Id.
[14] Id.
[15] Id.
[16] SEN, supra note 1, 247
[17] Balraj Puri,Amartya Sen and Identities, Economic and Political Weekly, 2692 (2006).
[18] Jawad Syed, Capability Approach And Religious Values: The Case of Women’s Employment in Isla, University of Kent Canterbury (2007).
[19] NUSSBAUM, supra note 12, 127
[20] Id.
[21]Id.
[22]Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 §5
[23]Id. §3
[24] NUSSBAUM, supra note 12, 129
[25] Id.
[26] NUSSBAUM, supra note 12, 131
[27] Id.
[28] SEN, supra note 1, 45
[29] NUSSBAUM, supra note 1, 132
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