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.
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.
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.”
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.