LOVE JIHAD LAW


AUTHORS: Aman Pandey, LL.B.(Honours), Faculty of Law, University of Lucknow, email- amanpandey.ap03@gmail.com,

LOVE-JIHAD, this term may be known to all of us. It is basically a theory wherein a man of a community, to be more specific the Islam community, conspires to marry a woman of a different community consequently making to convert her religion. The Uttar Pradesh Vidhi Virudh Dharm Samparivartan Pratishad Adyadesh, 2020[1] has been promulgated to tackle these and other forceful religious conversion cases which is an appreciable step in order to eradicate unwilling or forced marriages which leaves no one except a woman to suffer however how will the distinction be drawn between cases of forceful conversion and those which are genuinely consensual, is the matter of concern? Ironically, what is interesting here to note that the said Ordinance itself doesn’t define the term ‘love jihad but pursues to criminalize it. It is assumed when an individual attains the age of 18 years, he or she become responsible enough to determine what’s good and whatnot that’s why the voting rights are conferred upon an individual at the age of 18 thus enabling him or her to decide, who will run the country and make policies that would affect us. However, when it comes to choosing a life partner, patriarchal notions and ideals play a significant role. As we grow it is taught to us, informally, to refrain from romanticizing relations with a person of another caste community. Historically, marriages have been an instrument to control a women’s sexuality, desires, aspirations, and whatnot.  It promulgates caste lineage & restricts women from exercising their freedom & autonomy. The communal propaganda in our country does nothing to safeguard this discrimination against women rather it further encroaches on their mobility, social interaction & freedom of choice. It is a presumption in the society that when a Hindu woman marries a Muslim man, such man would have forced her to do so and the society contemplates it as a crime, even if the marriage is solemnized consensually, which consequently gives rise to barbaric acts of honor killing. This Ordinance of 2020 does nothing but seeks to legalize violence committed by family on persons who transgress the boundaries of religion. Thus it is a perfect paradigm of curtailing the freedom of choice of one’s life partner irrespective of caste community. The Hon’ble Supreme Court had also reiterated the same in Shafin Jahan v. Ashokan K.M.[2] wherein the court observed that the right to marry a person of one’s choice, irrespective of caste, community, creed, etc. is an intrinsic part of Article 21[3]. What this ordinance provides is a question as to why the people in power hate to love so fiercely? The obvious answer to it could be the Supremacy of Hindu ideologies which puts the other communities especially the Islam community at a lower footing and this is not the first time, the imposition of the Citizenship Amendment Act last year is a piece of perfect evidence in this regard that resembled a Muslim as a second class citizen in India. This Ordinance of 2020 is yet another control mechanism to target a particular community and to impose the choice of the State. Thus the ‘love jihad’ law is an onslaught on choice; on freedom; on privacy; on dignity; on the equality of man and woman; and on the right to love or live together or marry.[4]

CONSTITUIONAL WATERS OF THIS LAW

There are many aspects on the basis of which the constitutionality of the ordinance of 2020 can be adjudged. The primary aspect which should be taken into consideration is that whether it is really an Ordinance? What gives rise to this doubt is the bare reading of Article 213 under Chapter IV of the Constitution of India. The Article confers upon the Governor the power to promulgate Ordinances during recess of Legislature; however this power is subject to certain requisites laid down by the Article itself. These conditions are as following:

  1. An Ordinance may be promulgated by the governor only when the Legislative Assembly of the State or where there is Legislative Council in a State, then, when both the houses are, not in session.
  2. If the Governor is satisfied that it is the need of the hour that he should take immediate action.

Thus, the above two conditions are sine qua non to exercise the legislative power by the Governor under this Article. However, in the present scenario, the existence of any exigent situations is imperceptible. This is evident from the report submitted by the Special Investigation Team (S.I.T) which was formulated to probe into the cases of forceful conversion by marriage[5]. Thus the investigation has turned out to be damp squib for the Uttar Pradesh government.  However for a layman the investigation results as an inference that there is no concrete proof of rising cases of unconsensual conversion of religion by marriage and moreover, there were no facts or evidences cited by the government on the same thus what can be inferred is that there was no such need right now of promulgating this ordinance by escaping the regular law making procedure therefore the use of legislative power for hastily passing of ordinances without any justifiable cause or urgency is unconstitutional.[6] Even the former judge of Supreme Court Justice Madan B Lokur criticized the said ordinance and has pointed out the illegal practice of power under Article 213 & is of view that there is no way this ordinance can sustain.[7]

ENCROACHMENT TO PRIVACY AND RIGHT TO CONSCIENCE

The unanimous judgment in Justice K.S. Puttaswamy (Retd.) v. Union of India[8]  is a resounding victory on privacy as it had held that Right to Privacy is an intrinsic part of Right to Life & Personal Liberty under Article 21 of the Constitution of India. The court had observed that liberty enables an individual to decide various facets of life including what & how one prefers to eat, dress, the faith one follows and other matters on which autonomy & self-determination require a choice to be made within the privacy of mind. This ordinance of 2020 is undoubtedly a threat to the privacy of its citizens. It makes compulsory for a citizen to publicly inform the District Magistrate before conversion of religion and such info will be subject to enquiry & subsequent investigation thus the State which should be determined towards protecting its citizens fundamental rights itself is encroaching to their personal autonomy. By making inter-faith marriage a public figure to be sanctioned by the State, the government is directly interfering into the personal lives of individuals thereby seeking to control the cultural & social aspirations of the people as conversion cannot be a matter of Administrative and public scrutiny. In Shakti Vahini v. Union of India[9]  the former CJI Justice Dipak Misra had remarked that “When two adults marry out of their volition, they choose their path and they have right to do so. And it can unequivocally be stated that they have the right and any infringement of the said right is a constitutional violation.” The unreasonable intrusion of State to discredit wedlock’s violates this very right to privacy and disempowers individuals.

Article 25 of the constitution lays down freedom of conscience & free profession, practice & propagation of religion. The right to conscience is independent of right to religion it means that an individual may not have any religious beliefs but he is free to exercise his right of conscience. Thus, if an individual has certain beliefs towards his or her religion although ethically or morally incorrect but not against the cardinal principles of our Constitution then he is free to practice his beliefs without any hindrance and in case of any impediment the State is bound to uphold the rights of its citizen. Thus the paramount question here arises that how can a state impose restrictions on a person’s right to conscience which could entail religious conversion?

In Rev Stanislaus v. Madhya Pradesh[10], the Madhya Pradesh High Court accepted that the anti-conversion law is essentially a law to protect public order so also the Supreme Court looked at the religious conversion from the prism of public order. However the court lacked behind in taking into consideration that by framing a matter of personal liberty as that of public order, the privacy rights will be compromised. If some communal elements create a situation of public order because two individuals chose to marry, the duty of the State should be to prevent such intimidations & infringement of rights of such individuals and not to go into a digging expedition to determine the validity of someone’s belief.

In Smt Noor Jahan Begum v. State of U.P.[11] the Allahabad High Court observed that if a conversion is not inspired by religious feeling and there is not a change of heart and honest conviction in the tenets of new religion in lieu of tenets of the original religion, the conversion shall not be bonafide. In another case of Priyanshi v. State of U.P.[12]  the Allahabad High Court followed the precedent laid down in the Noor Jahan Case. However both these decisions were overturned by the Allahabad High Court on 11 November 2020, in the matter of Salamat Ansari and Ors v. State of Uttar Pradesh[13] wherein the division bench observed that none of the above cases dealt with the matter of life &liberty of two matured individuals in choosing a partner or their right to freedom of choice as to whom they would like to live with. Thus the Court held the judgments of Noor Jahan and Priyanshi as not laying good law.

PROPORTIONALITY

It may be argued that conversion for the sole purpose of marriage or marriage for the sole purpose of conversion may be morally & ethically wrong. But is criminalizing it a proportional outcome? The answer to this question was given by Justice Indu Malhotra in Joseph Shine v. Union of India[14] wherein she opined that a law with penal consequences and with overriding effect upon the individual rights, would be justified only when the society is directly impacted by such conduct, keeping in view the respect for the autonomy of the individual to make his/ her personal choices. Under the right to privacy judgment it has been laid down that a law could not be such which can infringe privacy rights of its citizens unreasonably and without any justifiable reasons. Thus any such law would be regarded as no good law if it is not proportionate enough to ensure a rational nexus between the procedure & object sought to be achieved.

The ordinance fails to address the necessity and reason to hold such marriages void, and force couples to give rigorous undertakings to go through something as personal as marriage. It even lays down the concept of reverse burden of Proof, thus the person who facilitated the conversion would need to prove that it was not forced disregarding the woman’s testimony. This is direct violation of the right to be deemed innocent until proven guilty.

Thus, this ordinance is not the result of some sympathy for women, but with the sole purpose of stopping conversion & inter-religious unions.


[1] Hereinafter to be read as the Ordinance of 2020.

[2] Crl.A 366/2018 (arising out of SLP (Crl.) 5777/2017)

[3] Protection of Life & Personal Liberty.

[4] https://indianexpress.com/article/opinion/columns/constitution-law-modi-govt-p-chidambaram-7093190/

[5] https://www.nationalheraldindia.com/national/no-conspiracy-found-in-love-jihad-cases-in-uttar-pradesh, accessed on 4th January 2021 at 3.26 pm.

[6] R.C. Cooper v. Union of India, AIR 1970 SC 564.

[7] https://www.newindianexpress.com/nation/2020/dec/23/ups-anti-conversion-law-cannot-be-sustained-contains-many-defects-says-ex-sc-judge-lokur-2240039.html, accessed on 4th January 2021 at 8.20pm.

[8] (2017) 10 SCC 1.

[9] 2018 AIR SC 1601

[10] 1977 SCR (2) 611.

[11] W.P. (Civ.) No. 57068 of 2014.

[12] Writ C no. 14288 of 2020.

[13] Cri. Misc. W.P. no. 11367 of 2020.

[14] 2018 SCC OnLine SC 1676

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