Tuesday, January 24, 2023
HomeOpinionUP doesn’t need a new anti-conversion law. But India needs a stronger...

UP doesn’t need a new anti-conversion law. But India needs a stronger Special Marriage Act

Yogi Adityanath’s anti-‘love jihad’ ordinance can deprive women of their agency. Ambedkar had always warned against that.

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Chief Minister Yogi Adityanath-led Uttar Pradesh cabinet has cleared an ordinance against ‘unlawful religious conversion’ or what it calls “love jihad” – a derogatory term used by Right-wing groups to accuse Muslim men of converting Hindu women by marriage. Other Bharatiya Janata Party-ruled states such as Haryana, Madhya Pradesh, Karnataka, and Assam have also announced that they are considering similar laws.

While Right-wing groups had been referring to “love jihad” to target inter-faith marriages, there was no factual backing to most of these claims. However, a few days ago, in support of his proposed anti-‘love jihad’ law, the Adityanath government cited a single-judge bench judgment of Allahabad High Court, which held that conversions only for the sake of marriage are not valid. The UP cabinet will send the ordinance for the governor’s approval, even though on 11 November, a division bench of the High Court declared the previous judgment, which the UP government cited, as an incorrect position of law.

The upcoming law, called ‘Prohibition of Unlawful Conversion Bill 2020’, is worded to claim that it criminalises only forced religious conversions, however, it has the effect of allowing the State to enter the private decisions of inter-faith couples of how they want to get married. The UP law can have the effect of discouraging with punitive action the marriage between two consenting adults of different faiths, especially because the terms it uses are vague. Any such law cannot hold ground because it is contrary to the basic values of the Constitution on multiple counts.

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

SC has shown the way

Marriage is an extremely personal affair. The right to marry a person of one’s choice or to choose one’s partner is an aspect of constitutional liberty as well as privacy. The fundamental right to privacy protects an individual’s ability to make choices and decisions that are intimate.

A nine-judge bench of the Supreme Court upholding fundamental right to privacy had clearly said in 2017 that it is upon an individual on how she wants to exercise her freedom to make those personal choices. Whether one’s partner would be of the same faith or not is a private decision. The way of life an individual wants to pursue after marriage is again a right of personal choice.

In 2018, the Supreme Court reiterated this position of law in the Hadiya case, where it rejected the allegation that Hadiya had been forcefully converted to another religion for the purpose of marriage. It held: “How Hadiya chooses to lead her life is entirely a matter of her choice”. The court emphasised the principles of individual autonomy and dignity with the expectation that “such an injustice shall not again be visited either on Hadiya or any other citizen”.

Contrary to the expectation of the Supreme Court, the UP ordinance and the ambiguities in it can be used to violate an individual’s ability to exercise her or his choice. Furthermore, the constitutional framework does not allow social approval as a basis for recognising personal decisions. Given the conservative nature of Indian society, inter-community marriages are discouraged, often even leading to honour killings. In such circumstances, when it is against family or societal approval, it becomes difficult for interfaith couples to marry even under the Special Marriage Act, 1954 – a law for interfaith marriages.

Reports have shown that the mandatory 30-day notice period to raise objections to a proposed marriage under the Act allows the harassment of the couple by family members or even goons, who are opposed to their marriage. To avoid such harassment, couples may have opted to convert to their partner’s religion to get married without the 30-day waiting period. For some individuals, the choice of their partner is much more important his/her religion.

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

The duty of the State

By criminalising marriage for or after what is deemed to be ‘unlawful’ conversion in broad terms, the proposed UP law, in effect, would take away a choice from interfaith couples. It also would have a chilling effect on the exercise of freedom to love and marry outside one’s community. The Supreme Court has struck down laws restricting individual freedoms on the ground that such a law is “manifestly not only overboard and vague but also has a chilling effect on an individual’s freedom of choice”.

The proposed law is problematic on one more count. It deprives a woman of her agency and, in effect, controls female sexuality. The concept of “love jihad” is based on the premise that Hindu women are incapable of deciding for themselves and would easily become prey to forced conversions. Such a narrative reflects the caste system. B.R. Ambedkar had stated that patriarchal control over female sexuality was an essential component for the purpose of reinforcement of the caste system.

Laws restricting a woman’s agency over her sexuality have again been invalidated by the Supreme Court, while holding: “Choices in matters of sexuality are reflective of the human desire for expression… In allowing individuals to make those choices in a consensual sphere, the Constitution acknowledges [an individual’s] ability to make essential decisions.

Also read: Yogi govt approves ‘love jihad’ ordinance with 3-10 years of jail term, Rs 50,000 penalty

At the same time, there are already various laws that invalidate marriage done under coercion. The proposed laws would only lead to harassment of inter-faith couples, which cannot be allowed in our constitutional democracy.

Moreover, if a couple wants to get married irrespective of their faith, it is the duty of the State to enable and facilitate them to exercise their freedom, and not restrict it. Instead of bringing an anti-‘love jihad’ law, the State must relax the vague procedure under the Special Marriage Act to facilitate and promote interfaith marriages.

The author is a lecturer at Jindal Global Law School and affiliate faculty, Harvard Law School Center on the Legal Profession. Views are personal.

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  1. Many states already have anti-conversion laws including non-BJP states. Just watch Prints’s own Shekhar Gupta’s latest show.
    It is not an anti-inter-religious marriage law but anti-conversion law and applies to both men and women.
    Please stop spreading lies and hatred.

  2. ordinance against ‘unlawful religious conversion’ or what it calls “love jihad” – a derogatory term used by Right-wing groups

    U call it unlawful and then say it is derogatory and then write against it???

  3. Grouping in the dark.
    Triple talak law- how many people gone to jail?
    First save zhindu women getting molested by upper cast men.

  4. Thats why we have special marriage act.
    Sharia does not allow interfaith marriage then what is the point in arguing about it.
    Special marriage act provides legal validity to an inter faith marriage on which the UP govt is going to destroy using the new bill.If two individuals require state permission to marry then it is an infrigement of personal liberty by the state

    • Now there is a rule to stop introducing boys by fake names, develop friendship, then ask to convert to marry …. now they can marry by special rules without converting the bride as per izlamic culture.

  5. Liberal Left will oppose anything which stops conversion from hinduism, Theor agenda needs to be inferred from theor actions.

  6. Everybody should boycott this disgusting news website, so biased opinions are presented these librandus have no right to lecture us

  7. BJP Gov and PM Modi are destroying democracy and fundamental rights of the people. Any one can convert and accept any religion. It is fundamental rights provided by the constitution of India.
    BJP, RSS and Modi Gov are ruining the right of people.
    People of India must not vote radical fugitive hindutva party BJP in next general election in 2024. Should reject BJP.

  8. The roots of these types of laws being made are in the interventionist secularism of India, the state should be completely seperated from religion, religion is a personal affair and the state should not assume a role to protect any particular community, may it be Hindus, Muslims, SCs, tribals. The purpose of the state should be to improve the life of deprived “individuals” without seriously jeopardizing the the fulfilled individual.

  9. If you want the state to promote interfaith marriage, then isn’t it necessary that the two person keep following whatever religion they used to? If one of them is converting, how does that become interfaith anymore? If love is above religion and politics, there shouldn’t be any kind conversion in the first place.

  10. And what is the jail term for a hindu boy or girl who loves and proposes to a non hindu opposite sex… What kind of idiotic law is this.

    • – If any persons followng muslim religion wishes to marry a non-muslim of Indian origin then the non-muslim girl’s marriage cannot be conducted without the presence of her parents or immediate legal gaurdians, as Shariah law /Islamic religious books clearly state an Islamic Nikkah or marriage cannot be conducted without the physical presence of girls legal gaurdians (or her Wali) in Islam. Shariah law and Islam clearly states that any one who does not convert to muslim prior to his or her marriage with a muslim will be considered illegal and their children from such a marriage will be considered haram in the eyes of Islam. Hence there can be no legally binding marriage possible with non-muslims under shariah without conversion to Islam. And now the government India has created a proper law describing the process to be followed to convert anyones religion, this needs to be followed, the law does not permit the moulfvi or cleric to convert any non-muslim it must be done with a affidavit in court. Hence the persons who conduct such marriages as well the persons who are part of such conspiracy of illegal marriages will be counted as accomplishes to attempted rape. If any moulvi or any persons are forcing such illegal marriages of non-muslims they will be jailed for a period of 10 years. If anyone or any organization is facilitating illegal religious conversions or marriages by misguiding the young persons then these persons can be arrested and the assets of such organization can be freezed or confesticated by the Governement.

      As far we know, there are no such restrictions in other religions, as there is no compulsion in other religions to change one’s religion before marriage nor does such marriage between them become illegal in the eyes of their religion or cause such marriages to become haram and hence so long there is no forced conversion these interfaith marriages can be done using the Special marriages act as per mentioned above.

  11. These barbarians will defenitely take back India to barbarian period… If these guys are so genuine… Why dont they follow Hindhu dharmas Sati culture also and ask their mothers and sisters to follow Sati ceremony religiously…not sure where is India going… India can be saved only if paper ballot voting is used…

    • Mulla Rahim, who is the barbarian ?

      Those who follow cave aged racial rule of communally banning your girls to marry Hindus or those who oppose it ???

      Very pathetic understanding, low IQ and knowledge level!

  12. The Print,I would love to hear such a secular and liberal rhetoric from your side when one of your female family members gets forcefully converted into some other religion! I hope you don’t stick to selective and biased activism that time as you have been doing since long!

  13. Heavily one sided and biased article.
    First three paras , the writer pressurizes on religious freedom only to end up with the objection that the name ‘Love Jihad’ is wrong. Not a single line dedicated to actual accounts of forced and mislead conversions for marriage.
    The desperation of the writer to prove himself right is evident from how he convenently tried to put emphasis on violence by families of converted partner before and after marriage but no words on how families of converters pressurizes and at times terrorize and brutalizes for converting.
    The Print standards has definitely went down in last 3 years

  14. What provision is there in the laws and their application to protect the right of a Muslim woman to marry a non-Muslim? This is an important issue as Sharia prohibits such marriages.

  15. It is Ok for Muslim men to marry non-Muslim women. But it is against Islam for non-Muslim men to marry Muslim women. It is another story most Muslim women under the Burkha remains invisible.

    • Brother, I have read that it is not even allow to Muslim men to marry non muslims. I have also read that a person who is forcibly converted to Muslim is not a Muslim unless he or she decides by their choice. I think the government shouldn’t interfere in people personal life

  16. The main objection is one way conversion to muslim faith when love itself is random, conversion should be random. If appeasers keep ignoring hindu concerns BJP will continue to be in power.

  17. We don’t need your opinion on any social issues of India. You people first learn the meaning of the word ‘Dharma’,then give your opinion on such issues.

  18. Change the title… its rant aginst the new law. I thought the article wss more about suggestions to the problem being faced.

  19. What will Yogi do if the couple decide to live together without getting married? Will he make a law to disallow people of different faiths living together? Or a man and a woman living together? Or a man and a woman of different faiths living together?

  20. The state should promote interfaith marriages, the author says in the end. This is complete idiocy talking, swinging over to complete other side. By the same logic of non interference of government in people’s private lives, why the heavens would the author recommend state”promoting” interfaith marriage?


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