Indian courts have repeatedly reaffirmed the constitutional right to choose a life partner, irrespective of religion, a fundamental right of consenting adults, intrinsic to the right to life, privacy and personal liberty. But UP’s ‘love-jihad’ law turns its back on the Constitution.
SURBHI KARWA & PRANNV DHAWAN
New Delhi: Through a vague and constitutionally dubious category of ‘conversion by marriage’, and an intrusive process of conversion through pre- and post-conversion declarations, Uttar Pradesh’s new Prohibition of Unlawful Conversion of Religion Ordinance, 2020, not only interferes with a range of fundamental rights, such as the right to choice, right to privacy and freedom of religion, it can potentially become a tool for violence against interfaith couples and minorities.
A sectarian law brought by Yogi Adityanath’s government and likened to Nazi Germany’s Nuremberg laws, the ‘love-jihad’ law, as it is popularly known, also violates the constitutional principle of dignity and equal protection of the law.
‘Love jihad’—a rightwing conspiracy theory that says Muslim men entrap gullible Hindu girls into falling in love with them with the intent of conversion through marriage—is an old anxiety of Uttar Pradesh (UP) Chief Minister Adityanath of the Bharatiya Janata Party (BJP).
He has threatened violence against Muslims on more than one occasion. At an election rally in Jaunpur in October 2020, he warned about so-called “love jihad”: “Those who do not mend their ways, will be sent to their death journey (agar woh sudhre nahi toh Ram naam satya hai ki yatra nikalne waali hai).” An undated video said to have been made during the 2009 election campaign purportedly shows Adityanath exhorting the crowd: “If they take away even one Hindu, then we will take away...” Left unsaid by him was the crowd response: “A hundred Muslim girls.”
Within hours of the ordinance coming into force, an FIR was filed against a Muslim man for “alluring” a Hindu woman and on 2 December 2020 he was arrested. The brother of the woman told the media that the matter had already ended last year with a court decision, and his sister had married someone else.
The new law has been brought through an ordinance. Under the Indian Constitution, ordinances are extraordinary powers given to the executive to enact a law in circumstances requiring immediate action, bypassing Parliament or state legislative assemblies. It is not clear how an ordinance was promulgated when the evidence of existence of ‘love jihad’ itself is under question.
UP’s ordinance prohibits any person from converting another “by use of misrepresentation, force, undue influence, coercion, allurement, fraudulent means or marriage”. A complaint can be filed by an affected party or a relative. The proposed punishment is minimum imprisonment of a year, which may extend to five years. In cases involving a minor, woman, or individual belonging to scheduled castes or scheduled tribes, the punishment is up to 10 years.
The ordinance requires that a person who “desires of conversion” must inform a district magistrate two months before conversion and within 60 days of conversion provide information about name, place of conversion, caste, income, occupation and address of the person converting.
The state government sought to legitimise the ordinance by invoking a recent order of the Allahabad High Court single bench that criticized conversions for the purpose of marriage, despite the fact that, 50 days later, a division bench of the High Court found the single-bench judgment “bad in law”. The Karnataka and Delhi High Courts too have reiterated the constitutional right to marry anyone irrespective of caste or religion. In November 2020, the Allahabad High Court granted protection to over 125 interfaith and inter-caste couples.
Constitutionally Dubious Category Of ‘Conversion By Marriage’
The UP ordinance to “stop love jihad” and “give justice to women” is couched in the language of forceful or deceitful conversion.
Anti-conversion laws (or Freedom of Religion Acts) already face criticism for being “extraordinarily broad and vague”. Many of the terms used in the Uttar Pradesh Ordinance—“allurement”, “force”, “misrepresentation”, “fraudulent”—have been previously criticized for being overly broad for their potential to interfere with the right to ‘propagate’ religion, a right constitutionally recognised as part of the freedom to religion under article 25 of the constitution. Even giving a religious book to someone from a different religion can be counted as “allurement through a gift”.
But beyond these problematic and vague terms, the ordinance goes over and above already existing laws.
It prohibits “conversion by marriage”, even though it is not clear what this term means. Section 6 of the ordinance provides that any marriage for the “sole purpose” of conversion is void, but the section also provides that the ‘vice versa’ situation is void too. Potentially this can mean that a conversion performed for the sole purpose of marriage is void too.
It can be argued that categories of force, misrepresentation etc have an element of unwillingness on the part of the person being converted. But it is not clear how all marriages that involve conversion can be equated with force and misrepresentation.
According to a 2018 Law Commission of India paper, interfaith couples are often left with no choice but to convert to avoid procedural problems under the Special Marriage Act, 1954 (SMA), meant for interfaith couples or couples who want a secular marriage. The SMA requires couples intending to marry to give a 30-day notice, which is then posted publicly.
As our October 2020 investigation showed, marriage officers and police far exceed their brief by visiting the homes of interfaith couples and interviewing their parents, even though parental assent is not a requirement under the law. In Kerala, the online posting of details of interfaith couples, along with their addresses and phone numbers, led to attacks on couples by vigilante groups. The Kerala government has now discontinued online posting, even as the 30-day public notice requirement of the SMA is challenged in the Supreme Court.
One may even convert to avoid social stigma attached with interfaith marriage, or simply for love. But the justification of the state to use criminal law against conversion by marriage is not clear beyond the sensationalised conspiracy theory of ‘love jihad’.
In Rev. Stainislaus vs State of Madhya Pradesh, 1977, where the anti-conversion laws of Madhya Pradesh and Odisha were found constitutional, the category of ‘conversion by marriage’ did not exist. The court recognised the need of anti-conversion laws for the limited purposes of public order—within the narrowly defined categories of forced conversion. Even for considerations of public order, a majority view cannot be taken as the larger public interest.
Attempts have also been made to justify the current ordinance through a 2000 Supreme Court judgement, Lily Thomas vs Union of India. That judgement related to a different situation, where conversion was used to get rid of the first wife. In this case, conversion by an already married Hindu man to Islam solely for entering into a bigamous marriage was in question. It was in this context that the court said on such a conversion the previous marriage will not be automatically dissolved and that the second marriage would be void.
Violation Of Privacy, Right to Conscience And The Threat Of Violence
Under section 8 of the UP ordinance, those who wish to convert must give, as we said, a 60-day notice to a district magistrate, declaring they are converting of their own accord. The person performing the conversion must also give a month's notice to the magistrate.
Declaring the requirement of similar notice to the district magistrate, under the Himachal Pradesh Freedom of Religion Act, 2006, to be unconstitutional, the Himachal Pradesh High Court in 2012 had noted:
“A person not only has a right of conscience, the right of belief, the right to change his belief, but also has the right to keep his beliefs secret…..Why should any human being be asked to disclose what is his religion? Why should a human being be asked to inform the authorities that he is changing his belief? What right does the State have to direct the convertee to give notice in advance to the District Magistrate about changing his rebellious thought?”
Speaking in the Hadiya case, the Supreme Court had recognised the right to convert as intrinsic to liberty:
“...the Constitution guarantees individuals to take decisions on matters central to their pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty.”
The current ordinance violates that freedom to discover one’s faith.
The notice under section 8 requires those intending to convert to provide such intrusive details as names of parents, address, occupation, monthly income, marital status, caste and even the names of their dependents. The intended date of conversion, place of conversion and name and address of the priest conducting the conversion must also be provided.
Apart from a violation of the right to privacy, there is every fear that the notice can be used to indulge in violence and threaten the person intending to convert. The Himachal Pradesh High Court had warned against similar potential violence:
“A person's belief or religion is something very personal to him. The State has no right to ask a person to disclose what is his personal belief. …We are of the considered view that in case of a person changing his religion and notice being issued to the so called prejudicially affected parties, chances of the convertee being subjected to physical and psychological torture cannot be ruled out.”
On receiving notice, the district magistrate must ask the police to find out the “real” intention of the proposed conversion. Even after the conversion, the person who has converted is required to send a declaration of conversion to the district magistrate within 60 days, with all private details, along with the original religion and religion of conversion must be provided.
Finally, after the declaration of conversion, the person who has converted must appear before the magistrate within 21 days to establish identity and confirm the contents of the declaration. The magistrate then records this in a register. The magistrate may also record any objections and their nature.
Who can make these objections? How will they be resolved? Can a third party object? Would so-called ‘love jihad’ be counted as an objection? Given the history of Hindutva outfits in running campaigns to stop conversion, the intrusive notice requirement can become a tool for violence against any person hoping to change their faith. The right to privacy and right to choose one’s faith would be at risk of being violated.
The right to choice has been recognized as an insegregable facet of liberty and dignity under the Constitution. The Supreme Court has, in a vast range of cases (here, here, here, here, here and here), held that the right to choose one’s life partner is a fundamental right of two consenting adults.
The right of an individual to live with a person of their choice irrespective of religion professed by them, is also intrinsic to the right to life and personal liberty. In Lata Singh vs State of Uttar Pradesh, 2006, the apex court made clear that marrying a person of one’s choice cannot be counted as an offence.
Turning its back to the constitution, the ordinance makes assertion of choice effectively impossible.
Already under existing law, marriage between two parties of different faiths. Research by this platform shows that the one-month notice requirement under SMA have become a tool for patriarchal control by caste and community against the couples who wish to marry against the wishes of their parents.
The notice requirement and mechanism of enquiry and objection under the ordinance can be very easily deployed by both family and right-wing outfits to not only stop the marriage of interfaith couples, but to identify them, putting them at risk of life. In the past, right-wing outfits have used public notices under the SMA to trace and target interfaith assertions.
In 2017, the Kerala High Court, hearing the case of a marriage of a Hindu woman to a Muslim man, had ordered an FIR against the office holders of a yoga kendra that had illegally held the adult Hindu woman against her choice with the purpose of bringing her back to her “original religion”. The woman had been forced in to the yoga kendra by her parents. She alleged that along with various other inmates she had been physically and mentally tortured, slapped, kicked in the abdomen and put under a “regimental routine” so that she could be “brought back”.
Marriage in India continues to be an institution governed by caste, community honour and control over women’s sexuality. According to a 2018 Lok-Foundation-Oxford-University Survey quoted in Mint, less than 10% of marriages are love marriages. Horror stories of honour killings are frequent, a fact recognised by the Supreme Court.
Even cases of interfaith marriages investigated by the National Investigative Agency in Kerala were mostly cases filed by parents of the girls. Parents frequently use charges of kidnapping, and rape against runaway couples, as an investigation into rape cases filed in Uttar Pradesh, reported in Article 14, has found.
Stereotyping Women: Violation of Article 14 And 15
Section 5 of the UP ordinance treats women as a separate category, with conversion of women being more severely punished with imprisonment up to 10 years.
Section 6, amongst other things, says a marriage will be void if a woman converts to the religion of the man. The separate categorisation of conversion of women comes with the inherent presumption that women lack agency. While approving the ordinance, the UP cabinet noted that the ordinance is being brought to “give justice to women” and to “stop love jihad”.
The Supreme Court, in a range of cases, has held that stereotypical understandings of sex cannot hold legitimate claims under our constitution.
For instance, the Indian Young Lawyers Assn. (Sabarimala Temple-5J.) vs State of Kerala, 2018, the Supreme Court said: “Human dignity postulates an equality between persons. The equality of all human beings entails being free from the restrictive and dehumanising effect of stereotypes and being equally entitled to the protection of law.”
Challenging ‘Equality of Status’ In The Constitution
Anti-conversion laws are known for their scope of abuse and discriminatory targeting of minority communities. Implementation of these anti-conversions laws show that Muslims and Christians are mainly arrested under these laws.
Anti-conversion laws create a hostile, and, on occasion, violent environment for religious minority communities by not requiring any evidence to support accusations of wrongdoing. ‘Love jihad’, too, as we have noted, is a sensationalised right-wing conspiracy theory with no evidence.
The Centre told Parliament in February 2020 that there was no legal definition of the term and that no such case of ‘love jihad’ had been reported by any of the central agencies in Kerala. The National Commission for Women in a reply to a 2020 right-to-information query said it did not maintain data on “love-jihad cases”—although the chairperson of the Commission, Rekha Sharma, visited the governor of Maharashtra, Bhagat Singh Koshiyari, to discuss a “rise in cases of love jihad”.
Multiple investigations by a range of investigative agencies have found no proof of any such wider conspiracy of converting Hindu women. In UP, the government created a special investigation team in August 2020; it concluded that no proof of ‘love jihad’ could be found.
In October 2018, the National Investigation Agency found no evidence of a larger criminal design of forceful conversion and closed its Supreme Court-ordered investigation. Similar results have been found by a range of police forces across various states in the past too (here and here). Even the Kerala High Court criticised the practice of sensationalising interreligious marriages as ‘love jihad’.
Despite the overwhelming lack of evidence, the ideological mentor of India’s ruling party, the Rashtriya Swayamsevak Sangh, and its sister organisations, have furthered a conspiracy theory of use of ‘love’ as a weapon by Muslim youth to convert ‘innocent’ Hindu girls to Islam (here and here).
RSS outfits have run campaigns, distributed pamphlets, and even filed court cases to “protect” Hindu women from this alleged Islamist conspiracy. The vigilante mobilisation on the question of ‘love jihad’ is largely what historian Charu Gupta has described as “the campaigns [which] construct an image of the Muslim male as aggressive, and broadcast a series of stereotypes and repetitive motifs, creating a common enemy – the Other”.
“The luring of Hindu women by Muslim men is stated to demonstrate the “lack of character” of the sexually charged, lustful Muslim men, violating the pure body of Hindu women,” wrote Gupta.
The UP ‘love-jihad’ law can potentially become a further tool of harassment and vilification of Muslims. Juxtaposed against article 14 (equality), article 15 (non discrimination) and the preambular commitment to ‘equality of status’, there is a serious question as to the impact of implementation of the act against minorities.
The Indian government is under constitutional obligation to encourage assertion of choice and create an atmosphere for citizens to exercise their fundamental rights. By criminalising choice and vilifying the country’s Muslim citizens, the ‘love jihad’ ordinance is a step in a diametrically opposite direction to constitutional vision.
(Surbhi Karwa is an alumnus of the National Law University, Lucknow, and National Law University, Delhi. Prannv Dhawan is reading law at the National Law School of India University, Bengaluru.)