Unconstitutionality of the ‘Love Jihad’ Ordinance

I. What is love jihad?

‘Love Jihad' is an unofficial term used by radical Hindu groups for referring to an alleged campaign by Muslim men to convert Hindu girls under the pretext of love.²

This Islamophobic theory proposes that innocent women are seduced into converting and marrying Muslim men under the guise of love in order to establish a Muslim society. However, several government departments' investigative findings contradict this idea. The fear of "love jihad" has risen to a fever pitch in recent months, thanks to politicians seeking to gain votes by spreading this divisive notion to Hindu voters while vilifying the Muslim community.

There is a Delhi based support group for interfaith marriages called ‘Dhanak”. Every year, some 1,000 interfaith couples get in touch with this Delhi-based support group and seek help.

Hindu and Muslim couples usually approach Dhanak when their families deny them permission to marry. Aged between 20-30 years, the harried men and women want the group to talk to their families or help them seek legal assistance. Among the couples who come to Dhanak, 52% are Hindu women planning to marry Muslim men; and 42% are Muslim women planning to marry Hindu men.

"Both Hindu and Muslim families in India fiercely oppose interfaith marriages. They will stoop to any level to stop them. Parents even smear the reputation of their daughters to dissuade her lover's family. The so-called 'love-jihad' is another weapon to discourage such relationships" says Asif Iqbal, founder of Dhanak.³

II. What is ‘love jihad’ ordinance?

The Indian state of Uttar Pradesh issued a new ordinance on November 24, 2020, which shocked the country. Religious conversion must be scrutinized and certified by the State under the Prohibition of Unlawful Conversion of Religion Ordinance, 2020. Converting to a new religion without the state's permission will result in incarceration and penalties. Although it appears that this ordinance was enacted to prevent conversions through undue control, intimidation, misrepresentation, coercion, or fraud, the State has been given unrestricted authority to monitor and challenge conversions resulting from interfaith marriage.

Furthermore, and even more troublingly, this ordinance works under the premise of exclusion, and even reinforces it. It assumes that certain segments of the Indian population must be removed and "othered," reinforcing the notion of communalism as a desirable goal in and of itself.

To make this situation worse, it preys on and perpetuates the emotion of fear: by ordinances, regulations, and policies, certain citizens are essentially warned that transgression will result in criminal sanction and ostracism. It does so in the way the law is written, with its expansive scope and reversal of many long-held criminal law concepts.

In most criminal cases, the prosecution bears the burden of evidence. However, any religious conversion is considered to be unlawful under this ordinance. The onus of evidence is now on the person accused of illegal conversion to show that it is not illegal. Since the offense is cognizable and non-bailable, the accused may be arrested without a warrant.

It is illegal to convert for the purpose of "allurement" or "inducement." The word "allurement" has a rather broad meaning. The rite encompasses both the sacred and the profane. An allurement may be a reward, gratification, easy money or material gain, the promise of a better existence, the illusory wrath of divine displeasure or otherwise.

It's worth noting that even a simple wedding present can be considered an "allurement."

Interestingly, reconversion is not illegal even if it is caused by fraud or force. So, if a person is converted voluntarily, then he might be arrested, but if he’s forced to reconvert, then there is no criminal offence. The most difficult aspect of the process is sentencing. The standard sentence is one to five years in jail, but if the victim is a minor, a woman, or a member of a Scheduled Caste or Tribe, the sentence can be increased to ten years.

Finally, a person who has been wronged may file a lawsuit against anybody, including their parents or siblings. This net has the potential to catch a lot of people. This law has the potential to cause significant public harm. It's difficult to imagine that a government will pass such a law in a country ruled by the ‘Rule of Law’ and the Constitution.

III. The unconstitutionality

That in and of itself is not objectionable. However, it grossly infringes on the right to freedom of faith and the fundamental right to practice religion guaranteed by Article 25, as well as the right to life and liberty guaranteed by Article 21.

Furthermore, Section 3 of the Act makes it illegal for one person to convert another to their religion by any means, including marriage. To convert by marriage successfully, a person must inform the state 60 days in advance of his or her intention to convert, as well as a notice from the priest. The government's meddling doesn't end there; after these measures, the police will conduct an investigation to ensure that the person is voluntarily converting. This is clearly unconstitutional and infringes on the right to worship and other rights derived from the right to life, as well as international conventions such as the UDHR, which recognizes the right to marriage as a human right and has been ratified by India.

This ordinance is antithetical to the Supreme Court’s judgement in Shefin Jahan’s case where it was held that the right to convert one’s religion is part of the fundamental right of choice, stating: “absolute right of an individual to choose a life partner is not in the least affected by matters of faith. Choices of faith and belief as indeed choices in matters of marriage lie within an area where individual autonomy is supreme.” Policing powers bestowed upon the state of UP to monitor individuals’ choice of partners or their religion violate the right to privacy, autonomy, personal liberty and the right to live with dignity. While recognising the diversity and plurality of our culture, privacy ensures an individual’s ability to have control over vital aspects of their lives like marriage, the sanctity of family life and preservation of personal intimacies.

In India, interfaith marriages are not generally accepted and are stigmatized; couples face backlash and are often shunned by their families. As a result, couples can prefer religious conversion to marrying under the Special Marriage Act, which allows people of different religions to marry while maintaining their religious beliefs. Individuals are required to offer 30 days' notice prior to their nuptials under the said Act, which exposes them to abuse from the general public and their families. Section 4 of the Ordinance will subject them to even more scrutiny and harassment by giving powers to relatives by blood and marriage to object to their union by lodging a police complaint. This goes against the Supreme Court's ruling that the consent of the family or society is not required when two consenting adults marry.

For interfaith couples, the situation is dire. 125 couples from across the state have requested judicial immunity from the discriminatory rule⁴, which is now being challenged in the Supreme Court. Other right-wing state governments have promised and started the process of enacting similar laws that make conversion by marriage illegal. In the name of neutrality, vilifying a religion and discriminating against them goes against the spirit of the Constitution, which includes secularism as a fundamental structure that cannot be changed.

IV. Conclusion

Since the BJP won a simple majority in parliament in August 2019, it has repealed special provisions in the Indian Constitution that had given a significant degree of autonomy to India's only Muslim-majority state, Jammu and Kashmir, which is now a Union Territory under the direct rule of the national government. The Citizenship Amendment Act, which eases the road to citizenship for a variety of religious groups from India's neighboring countries but excludes Muslims, was also passed by the Indian government in 2019.

Now, India's most populous state, Uttar Pradesh, has begun policing its citizens' private lives, despite the fact that around a fifth of the population is Muslim and the state government is headed by the BJP. The state passed the country's first "love jihad" law in November.

By injecting communalism into the electorate, divisive politicians have caused holes in the foundation of secularism; now it is up to the Supreme Court to fill them.

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