Saturday, March 25, 2023
HomeOpinionThe real threat in Yogi govt’s anti-conversion law lies in its ambiguity

The real threat in Yogi govt’s anti-conversion law lies in its ambiguity

Reports on Allahabad High Court’s judgment in Salamat Ansari-Priyanka Kharwar case wrongly suggests a constitutional death-knell against UP’s 'love jihad' ordinance.

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The Allahabad High Court’s decision in the case of Salamat Ansari vs. State of UP earlier this week has been assiduously lauded with wide-ranging fanfare. Several media houses have intrepidly termed this judgment a stumbling block for the ‘love jihad’ legislation proposed by the Yogi Adityanath government in Uttar Pradesh — see here, here, here, here and here. Indeed, such reporting might well persuade one to believe that a constitutional death-knell has been firmly struck against the anti-conversion law currently under consideration by the state legislature. Yet, the truth of the matter is more intricate – the articles cited above misrepresent both the normative content of the court judgment and the explicit textual basis of the touted legislation.

The Allahabad High Court decision doesn’t really address the issue of conversions purely for the sake of marriage, which lies at the heart of the current debate. So, the legal challenge to this ‘love jihad’ law will have to be more nuanced, and there aren’t grounds to celebrate just yet. This article will try to unpack both elements in order to provide a more nuanced basis for the critique of this nebulous new law.

Also read: Allahabad HC says earlier verdict, which CM Adityanath cited for ‘love jihad’ law, incorrect

The Allahabad High Court decision

To get to the crux of the high court’s decision in Salamat Ansari, one must first look at a prior judgment of the same court in the Noor Jahan case. The petitioners in the 2014 case had approached the Allahabad High Court to seek protection from police harassment in connivance with the woman’s family, following an interfaith marriage. Denying the petitioners any remedy, the court considered their marriage void, holding that the conversion to Islam was not ‘genuine’ or ‘bona fide’, having been conducted purely for the purposes of the wedding. It was this judgment that was subsequently followed in Priyanshi vs. State of UP, the case cited by Chief Minister Adityanath at election rallies while pledging harsh punishment for the laughably absurd notion of ‘love jihad’.

In Salamat Ansari, the high court did partially depart from the approach in the Noor Jahan and Priyanshi cases, holding that the question of the validity of the marriage ought not to be relevant in such petitions for police protection. Instead, one must only consider whether the two individuals are freely consenting adults and, if they are, their cohabitation is protected by law.

Yet, crucially, while issuing this decision, the Allahabad High Court did not disagree with the prior cases on the point that religious conversions conducted solely for the purpose of marriage are legally suspect. Indeed, it explicitly acknowledged that such conversions may be “prohibited in law” and that the ensuing union was only “a relationship in the nature of marriage [emphasis added]” and not a true marriage. This point holds vital relevance while considering the proposed religious conversion legislation.

Also read: Not Ram Mandir, the ‘love jihad’ laws are the foundation of Hindu Rashtra

The constitutionality of the UP law

The proposed Vidhi Virudh Dharmantaran 2020 Bill, drafted by the Uttar Pradesh State Law Commission in 2019, targets religious conversion under two circumstances. The first concerns situations of conversion through fraud, misrepresentation or coercion – largely unproblematic, since similar provisions can also be found in pre-existing national marriage laws.

The second circumstance, and the one fraught with controversy, is a conversion “done for the sole purpose of marriage”. The law declares any marriage concluded as a result of such conversion to be null and void. It is the plausible conflict of this legal provision with the Allahabad High Court’s decision that has been the subject of much attention. Yet, as shown above, the court’s judgment and reasoning in Salamat Ansari doesn’t actually throw any doubt on the legal merit of this provision. Nor could it, in truth.

The Supreme Court of India, in both the Lily Thomas and Sarla Mudgal cases, has confirmed that religious conversions carried out without a bona fide belief and for the sole purpose of deriving some legal benefit do not hold water. Those cases concerned religious conversions by Hindu men to Islam in order to conclude bigamous marriages. This approach has also been confirmed by the high courts of other states.

The legal principle enshrined in these cases is applicable to situations of religious conversion carried out purely for the sake of marriage. The Special Marriage Act, 1954 already permits interfaith marriage (a legal right that the Uttar Pradesh government cannot, in truth, meddle with) but it does place tangible consequences for the parties to such a marriage in terms of succession. For a Hindu, the law automatically enforces a partition from the individual’s undivided family, depriving them of any potential accrual to such property subsequent to the marriage. For a Muslim, the law requires inheritance to be conducted through the Indian Succession Act, 1925 rather than under Muslim person laws following an interfaith marriage – the latter being more advantageous to a Muslim man.

As such, the act of converting solely for the purpose of marriage, in order to avoid the impact of the Special Marriage Act, does provide perceptible legal benefits and can arguably be struck down by the dicta in Lily Thomas and Sarla Mudgal.

Moreover, the Supreme Court has already held that the act of religious proselytisation is not protected by Article 25 of the Constitution, in the Stainislaus decision. Therefore, it seems difficult to argue that the UP legislation is unconstitutional for curtailing religious conversions conducted purely for the purpose of marriage – a fact confirmed by the continued and unchallenged existence of identical legislation in states such as Uttarakhand and Himachal Pradesh.

Also read: 280-character tweet is all it takes to destroy Indian democracy — if you believe Supreme Court

The scope for misuse

The true danger with this new so-called ‘love jihad’ law lies not in its explicit textual basis, which seems fairly innocuous prima facie. Instead, its threat lies in its ambiguity. Although the scope has been cleverly restricted within constitutional margins, the law employs the use of open-textured phrases such as “undue influence”, “allurement” and “coercion”. Indeed, even the question of whether a religious conversion is truly conducted solely for the purpose of a marriage is inherently vague.

It is in the subjective assessment and appreciation of these tenuous phrases that the real peril lies – this is a matter left entirely to the discretion of the judge. Yet judges are as much embedded within the threads of social fabric as you and I. And, undoubtedly, the social fabric of our nation has yet to come to terms with interfaith marriage – as highlighted by the recent Tanishq ad incident. The Vidhi Virudh Dharmantaran Bill isn’t directly unconstitutional, but it carries the potential to be misused in an unconstitutional form – a possibility that its drafters are, no doubt, well aware of.

The author is a DPhil candidate and Rhodes Scholar at the University of Oxford. Views are personal.

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  1. I have a small clarification and a subsequent question which I intend to ask through this comment. The author quotes section 6 of the UP Anti conversion Bill 2019 which states that “Conversion for the sole purpose of marriage to be null and void”. I want to clarify here that if the law declares marriage void or the conversion void. The author in the next line states that the marriage is declared void through this section but I believe that the section merely declaring the conversion void.
    Further, the author argues that this section(assuming it declares marriage void) cannot be held unconstitutional as it confirms with the dicta of Lily Thomas and Sarla Mudgal, but if we look at the wording of section 6 of the ordinance that has been recently passed then section 6 of that ordinance states that “marriage done for the sole purpose of conversion and vice versa to be void”, that is a considerable shift in position from the language used in the bill, so would the author’s argument still hold water vis-a-vis the present ordinance.

  2. When the law itself is unconstitutional why the State government and police force is enforcing on victims? Look like Muslims have no Constitutional rights, any law and any action can be applied on them without any shame or fear. The SC should bring a “Sue O Moto’ bill against this illegal bill soon to save many victims.

  3. Does one think these writers who are against Yogi are really against him.? No. They are paid writers as well as the PRINT media. These writers have loyalty to the money they get from whom so ever. These writers who support the love jihads should become victims of the islamic malaise to understand the gravity of the situation. Most of these writers have no loyalty to their religion or even the country where they live like parasites and they may feeling ashamed of their parents to have kept Hindu names and these anti Hindus are masquerading as liberals are the scourge of a decent society. For these writers it is fashionable to criticize Hindus but will hide under the cot if asked to do against islam and christian cults. This print media thinks people are still idiots and can be brainwashed to support their satanic views.They are wasting their time as to day social media are exposing their lies ,biased views and most important being anti national communist mentality

  4. Liberal Left doesn’t care about hindus, They will deny all issues and concerns, like there was no Ra mtemple in Ayodhya, no hindu ever lived in kashmir valley, there is no conversion going on in the name of marriage. Don’t looks towards traditional media to highlight this, they are appeasers.

  5. Does the author thinks abt grooming gangs of UK as laughable notion too…. has the author written how ” laughable” is sariah law. Has the author written about urgency of ucc???? Dont laugh at others pain for ur phd …… just as people die from dowry harrassment, women and men are dying becoz of loopholes in law….(politicians anyway take advantage of situation, scholars should do better than laughing…..)

    • Hindutvadi men fashion themselves as security guard for the private parts of their women folk. And in this they are not much different from their Muslim counterparts.

  6. The ‘LJ’ thing is real.
    I know only two cases very closely.
    A couple more in the social periphery.
    This may be inadequate data to extrapolate, but the matter in my ‘liberal’ mind is; ‘does it interfere with the choice displayed by women’.

  7. The law was not made just on the observations of Allahabad High court. It has been made due to popular public demand to curb the practices of fradulent marriages.

  8. INDIA must focus on reducing POPULATION.

    It is this lot’s of children in a small house where parents cannot afford education or proper care let’s them to their own devices.

    Many become vagabonds and extremely violent. A nuisance to society.

    With nothing to do they focus on stealing vehicles and mobiles to impress girls and use fake identity for the same purpose as well.

    INDIAN government must ensure strict population control measures and ensure modern scienctific education as well as respect for all religions is imbibed in all citizens.

    No religious community must be allowed FREE hand in disturbing peace .

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