The State & judiciary have argued they have no business in the bedroom, when it comes to criminalising marital rape. But ‘love-jihad’ legislations—which more BJP-ruled states are lining up and which the Supreme Court refuses to stay—criminalise an adult woman’s choice of spouse
New Delhi: On 6 January, the Supreme Court issued notice on petitions filed by Vishal Thakre & Others and social activist Teesta Setalvad's NGO, Citizens for Justice and Peace, challenging the constitutional validity of anti-conversion laws in Uttar Pradesh (UP) and Uttarakhand. But while doing so, the apex court rejected the argument to stay these laws till the matter is adjudicated upon.
When the Court urged the petitioners to approach the high courts, the petitioners argued that the apex court should consider the matter since it was pending in more than one high court, “causing widespread problems in society”.
These laws now go beyond the two states where they are operational, since Madhya Pradesh (MP) has very recently enacted a similar but stricter law and Haryana and Karnataka have announced (here and here) their intention to do the same.
Many high courts have already declared provisions similar to the UP Prohibition of Unlawful Conversion of Religion Ordinance, 2020, in their respective states to be unconstitutional. However, that has neither discouraged UP, Uttarakhand and MP from bringing in these laws nor Haryana and Karnataka from their resolve to enact similar laws.
Governor Anandiben Patel promulgated the Madhya Pradesh Freedom of Religion Ordinance, 2020, which was published in the MP gazette on 9 January 2021. With provisions largely mirroring those in the UP ordinance, the MP ordinance prescribes even stricter penalties for those who forcibly convert a woman for marriage than those in the UP law: Imprisonment up to 10 years and a minimum fine of Rs 50,000 compared to a jail term of up to five years and a minimum fine of Rs 15,000 in UP.
The MP ordinance restricts the ability of directly filing a written complaint to parents and siblings unlike the UP ordinance, which allows any blood relative or relative by marriage or adoption to file an FIR against anyone for unlawful conversion of either person in the marriage. Under section 4 of the MP ordinance, any person who is related by blood, marriage, adoption, guardianship or custodianship can file a written complaint only with court permission.
The petitioners told the Supreme Court that “innocent persons” were being targeted under the UP ordinance based on allegations of “love jihad” (see here and here). However, the Court refused to stay the operation of these laws, pending a challenge. It noted that interim relief of the nature of a stay could not be provided under Article 32 of the Constitution, which allows anyone to approach the Supreme Court for the enforcement of fundamental rights.
Earlier in November 2020, Chief Justice S A Bobde said the Supreme Court was “trying to limit Article 32 petitions” during court proceedings for the release of Kerala journalist Siddique Kappan, who was arrested while proceeding to cover the Hathras rape and murder case.
This tendency of the Supreme Court to cite lack (or presence) of jurisdiction, time or resources at its convenience has been enabled by a judicial culture that dilutes procedural norms, regards them as unnecessary technicalities, and arrogates to itself unchecked discretion and power, argued Anuj Bhuwania, legal scholar and author of the book Courting the People: Public Interest Litigation in Post-Emergency India.
The institutional history and constitutional design of the Indian Supreme Court are particularly suited to the deployment of the Court’s populist will in service of the current government’s majoritarian agenda. This is why, unlike the Emergency era, when the judiciary impeded the political agenda of the Indira Gandhi government, which had to drastically amend the Constitution to restrict judicial review, Prime Minister Narendra Modi’s government has felt no need to do so.
Intimate Decisions, Ambiguity, Uncertainty And Persuasion
The need to require detailed arguments instead of granting a stay on the “love jihad” ordinances reflects the normalisation of coercive state power interfering with intimate decisions made by women.
Historically, the Court’s approach to sex discrimination in India has been predominantly protectionist—regarding women as weak and in requirement of protection—and even misogynistic, as Article 14 reported in June 2020.
This approach does not focus on constitutional values of substantive equality but reflects an inherent belief in women’s inferiority and subordination within the family, and thus the need for “protecting” them from abuse. It is this idea of the hapless Hindu woman victim being seduced by the cunning Muslim man that enlivens the context and the “mischief” that the love-jihad ordinances are motivated to contain.
The intersections of religion, caste, class and gender in India require a focus on multiple oppressions instead of a strict binary of male domination and female subordination. Sometimes, description of inequality through statements like “women are victims”, end up re-inscribing sex-based stereotypes.
These disempowered, brutalised and victimised constructions of women are far from liberating. It is equally important to beware of the search for a feminist ‘purity’ that harks back to the construction of the woman as helpless, as British criminal law scholar, Nikola Lacey has pointed out.
The Supreme Court has held in Anuj Garg and Joseph Shine that measures perpetuating damaging sexual stereotypes that regard women as inferior cannot be saved in the name of being ostensibly “beneficial” to women under Article 15(3) of the Constitution. Article 15(3), which allows for “special provisions” to be made for women and children, cannot save laws whose entire rationale is discriminatory.
Anything But Free Will
The anti-conversion laws try to base their legitimacy upon the use of abstract words, such as “freedom” of religion and “free will”, not vitiated by allurement or undue influence.
However, the broad definitions of factors that interfere with this free will, combined with the ability of relatives and family members to assert the lack of “freedom” on behalf of the adult actors involved in the marriage, annihilates individual choice and autonomy in personal decisions such as marriage and matters of faith.
The misplaced priorities of the State when it comes to the safety and autonomy of women can be seen in recent legislation, such as the Maharashtra cabinet’s approval of the Shakti Bill and the Andhra Pradesh government’s passage of the Disha Bill.
These laws reflect the criminal justice system’s populist thrust, which increases the State’s power to punish and coerce via criminal law to “protect” women by prescribing harsher penalties for offences while doing little for victim-support and needs of survivors.
The Shakti Bill also diluted the standard of consent in the Indian Penal Code (IPC), 1870, requiring unequivocal and voluntary agreement, by allowing decision-makers to presume consent from surrounding circumstances and conduct of parties. It would have rendered the conduct of women open to even greater scrutiny than it currently is, for interpretation by a patriarchal state. This provision was only dropped from the Bill after sustained protest by women’s groups.
Legal academic Saumya Uma and feminist activist Niti Saxena noted that instead of enacting draconian laws that vest arbitrary powers in the State, the solution to preserve agency in decisions regarding conversions for marriage, is to strengthen and simplify the Special Marriage Act (SMA), 1954, which allows interfaith couples to marry without conversion.
Similarly, “free will” and the formidable requirements for establishing it in the anti-conversion laws act as a smokescreen for defining socially desirable and legally permissible marriages and conversions.
Article 14 reported on 15 December how the UP government was using its new love-jihad law to demonise young Muslim men and harrass interfaith couples. The law, as an Article 14 analysis said on 3 December, is sexist and unconstitutional.
These laws have no justification beyond the oppressive social normativity and moral panic of the Hindutva State to control women’s sexuality, polarise communities and further marginalise minorities, the Economic & Political Weekly reported.
Criminalising Seduction And Allurement
Apart from the potential misuse of these ambiguous provisions, the explicit text of the so-called love-jihad laws is also problematic, criminalising as they do seduction and allurement.
The definition of allurement includes giving gifts or promising a better lifestyle. Coercion, unlike its definition in the Indian Contract Act, 1872, includes “psychological pressure”. What constitutes psychological pressure is undefined. Undue influence, unlike the Indian Contract Act, does not require the person exercising such influence to be in a position to dominate the will of the other.
Further, coercion, misrepresentation, fraud, allurement and undue influence do not make the marriage voidable only at the option of the party whose consent was vitiated. Relatives of the person can also file an FIR. These provisions are in excess of and broader than those that vitiate consent under the Indian Contract Act and the provisions in the IPC.
The text of these laws does not allow room for marriage to mean different things to different people. Marriage, sex, intimacy, pleasure and religious conversion as a result of marriage are personal decisions that can be negotiated and bargained for. These interactions and the decisions animating them will not necessarily be neat because by its very nature, commitment to a future and being together socially and institutionally involves uncertainty and ambiguity.
This is heightened in a country where marriage is considered a sacrament and divorce a taboo, and caste, class, religious and community considerations play a role in navigating who one has the freedom to marry. Naturally, temptations, intrigue, excitement, persuasion, allurement and seduction more often than not will be a part of the process.
The only role that the state should ideally play in this realm, as the Supreme Court has acknowledged on many occasions, stems from its obligation to ensure that family and community do not harass or intimidate interfaith and inter-caste couples.
Using The Law To Control Women
Notions of seduction, allurement or enticement have been nurtured in law, rooted in ideas of possession and control over the woman by the man to whom she belongs.
Legal scholar and human rights activist, Usha Ramanathan has questioned what is lost when the tort of seduction occurs. She analysed several judgments to conclude that judicial constructions where seduction and loss of control over the woman is concerned, emphasise property rights over her person and criminalise anyone else’s possession of her.
A woman’s autonomy in these circumstances is not acknowledged, and her consent is rendered irrelevant. This could not have been more evident from the construction of the woman as a separate category in need of greater protection under anti-conversion laws (covered in detail here) and the ability of relatives to file an FIR and weaponise criminal law against the accused (see here).
Both the state and the judiciary are complicit in arguing that they have no business in the bedroom when it comes to criminalising marital rape.
However, elaborate legislations are being passed—and not stayed by the apex court—to nullify adult women’s intimate decisions to choose who to marry because they cannot be trusted to make such choices on their own when enticed/seduced by the omnipotent allurement of the Muslim man.
The public spectacle and accelerated enactment of these laws across different states are meant to heighten the “fear (that) silences freedom”, which the Supreme Court in the Hadiya case had warned against.
(Anupriya Dhonchak is a fifth-year law student at the National Law University, Delhi.)
Previously on Article 14: