Love jihad: A conspiracy theory manifesting into laws in Uttar Pradesh
by Shrishti Mishra
Source: PTI Photo/Shailendra Bhojak (https://www.outlookindia.com/photos/topic/love-jihad/103657?photo-247959)
Anti-conversion laws in India have been in place since the 1960s in eight states with the state of Uttar Pradesh being the latest addition after the promulgation of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020. It was passed on November 27, 2020 to curb what the Chief Minister of the State cites as “love jihad”, a purported conspiracy according to which men misrepresent their own religion in order to lure women from another religion into marrying them. The move has also triggered other Indian states led by the right-wing Hindu nationalist Bhartiya Janta Party (“BJP”) to contemplate enacting similar laws.
The ordinance prohibits any person to convert or attempt to convert the religion of any other person on grounds of misrepresentation, force, undue influence, allurement, coercion, fraud or marriage for the sole purpose of conversion. In other anti-conversion laws currently in force in different states, marriage is not an applicable ground to render a religious conversion as unlawful. However, under this law, marriage can be declared void if either the man or woman converts before or after the marriage. Any person desiring to convert before or after an inter-faith marriage must go through an elaborate legal procedure which begins by giving a declaration to a Court at least sixty days in advance stating that he or she wishes to convert his or her religion. The Court would then order an enquiry into the “real intentions, purpose and cause” of the proposed conversion.
This law stands in conflict with India’s international obligations under the ICCPR as well as its own constitution. Article 23 of the ICCPR recognizes the right of every person who has attained the marriageable age to marry and find a family of his choice. In its interpretation, the Human Rights Committee notes that this right is complemented by Article 17 of the ICCPR which prohibits unlawful or arbitrary state interference with the family of an individual. The standard under Article 17 requires that interferences must pursue a legitimate aim and are proportionate.
This standard is well reflected in the Constitution of India under Article 21 which manifests the right to life and personal liberty of every individual. The Supreme Court of the country has also affirmed it in clear terms in Puttaswamy, a landmark judgment which recognized that Article 21 inherently embodies an individual’s right to privacy as a fundamental right. Importantly, marriage and religion were also noted to be intrinsic to the right to privacy [see, Puttaswamy at p. 263]. Therefore, constitutionally, and parallel to criteria put forth by the Human Rights Committee, family and religious life are guarded from state interference unless the State shows: a) a legitimate aim for breaching the constitutionally recognized right and b) the breach is proportional to the objective sought to be achieved by the State.
Coming to the first aspect, the Puttaswamy verdict recognized prevention and investigation of crime as a legitimate aim to warrant state interference. The law in question here also claims to provide for prohibition of unlawful conversions. While the first six grounds under the law deal with non-consensual religious conversions such as misrepresentation, force, coercion etc., the last ground, that is, marriage done for the sole purpose of conversion raises pertinent concerns on its legality.
Reportedly, the Chief Minister while announcing the ordinance quoted the decision of a single judge bench of the Allahabad High Court, the highest court of Uttar Pradesh, which had declared marriage for the sole purpose of conversion as “unacceptable” and “invalid”. However, this judgment has already been overruled by a division bench of the Court stressing that the right to live with a partner of one’s own choice is a fundamental right.
In similar vein, the Calcutta High Court has also observed that if an adult person marries and converts their religion of their own accord, the State agencies must not interfere in the matter. Moreover, neither the central nor the state government has been able to prove the alleged conspiracy in order to justify the legitimacy of subjecting inter-faith marriage to State interference. In light of this, there appears to be no ‘crime’ that the State government is intending to curb by bringing wilful marriages and conversions within the purview of this ordinance.
Secondly, the doctrine of proportionality, a well-recognized doctrine in India as well as in international human rights law, makes a law which is disproportionate liable to be declared unconstitutional. A law can be held to be disproportionate if the objective it seeks to achieve can be achieved by less intrusive but equally effective alternatives. This standard has been applied by the Supreme Court in Puttaswamy. In this context, the marriage laws in India comprising of the Hindu Marriage Act, Divorce Act and the Special Marriage Act already recognize coercion and fraud as grounds to declare a marriage as voidable.
Fraud is also applicable as a ground to dissolve marriage under Muslim personal laws. The Supreme Court has noted that Muslim marriage is a contract. Hence, all grounds applicable to render a contract illegal under the Indian Contract Act are applicable to it. Therefore, should a situation present itself where marriage takes place in fraudulent circumstances such as misrepresentation of a person’s religious identity, an aggrieved person has less intrusive and equally effective alternate remedies to get such marriage annulled.
This move brings in a new challenge for inter-faith marriages in India which already face immense pressure and backlash from the society. “Honour killings” or violence against people pursuing relationships outside their caste or religion is still a reality in India despite stern response from the Supreme Court. Regretfully, the deliberate use of the term “jihad” which is the Islamic term associated with religious war or effort targets the Muslim minority of the country and plays into an ongoing narrative of Islamophobia which has become increasingly common in the country under the rule of the dominant BJP. This law adds to the atmosphere of fear which has a chilling effect on people to potentially deter them from exercising their constitutionally guaranteed rights.
Author: Shrishti Mishra, a fourth year undergraduate student of Institute of Law, Nirma University, Ahmedabad, India.