Why Only the UP Law on Inter-Faith Marriages is Creating Turmoil
The havoc in the lives of Hindu-Muslim couples now being witnessed in Uttar Pradesh is unprecedented. Three other states have laws and court-mandated guidelines aimed at preventing marriages that involve conversion, but nowhere have they created the kind of turmoil that has resulted from UP’s new law, the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, which came into force on 28 November.
Attempts at legislating against Hindu girls marrying Muslim men, especially when such marriages involve conversion, are at least three years old. In December 2017, a two-judge bench of the Rajasthan High Court laid down 10 guidelines to prevent 'forcible conversion’. In their judgment the judges made it clear that they regarded any marriage that involved the conversion of a Hindu to a Muslim for the purpose of marriage, as a 'forcible conversion'. In some religions, they said, "it is condition precedent that male or female must be of same religion… No person can be compelled to change religion only to solemnize marriage, therefore conversion of religion only for the purpose of solemnizing forcible marriage, is not permissible under the fundamental right as enshrined under Article 25 of the Constitution of India."
According to the judges, "One, who intends to change his/her religion should satisfy himself/herself about niceties of conversion of religion." They quoted the Koran in support of their argument, and mandated that the person carrying out the conversion had to satisfy himself that the convertee had "full faith" in the newly adopted religion.
An anti-conversion bill had been passed by the BJP government of Rajasthan in 2006. But it had been returned by the then Governor Pratibha Patil, and has not yet been approved by the President. The high court ordered that its guidelines were to have the force of law till the time the bill received approval.
In April 2018, Uttarakhand enacted its anti-conversion law, becoming the first state to include marriage as a fraudulent means of conversion. It is worth mentioning that the law was enacted on the prompting of a high court judge after he had dealt with a Hindu-Muslim marriage. His order described conversions done "only to facilitate the process of marriage" as "sham conversions".
In 2019, the BJP government of Himachal Pradesh amended its existing 2006 anti-conversion law to include marriage as a fraudulent means of conversion. It came into force on 18 December 2020, replacing the older law.
In all three states: Rajasthan, Uttarakhand and Himachal Pradesh, the backdrop to these guidelines and laws was the Hindutva bogey of 'love jihad', the alleged conspiracy by Muslim men to marry Hindu girls after converting them. The same bogey lies behind UP’s new law, which, in its language and provisions, is almost the same as the Uttarakhand and HP laws.
Problems with UP’s Law
Given all these factors, why has only UP’s law created such disruption?
For three reasons.
The primary reason is that only the Uttar Pradesh law makes 'conversion for the sole purpose of marriage' an offence. The Uttarakhand and Himachal Pradesh laws only criminalise 'marriage for the sole purpose of conversion'.
How can a marriage be for the sole purpose of conversion? The concept arises from the widely held belief among Hindutvawadis that Muslim men marry Hindu women with the express purpose of converting them to increase the Muslim population. Even those Muslims who convert to Hinduism to marry Hindu women, allege Hindutvawadis, revert to their original faith after marriage, and then convert their Hindu wives to Islam.
Indeed, it was while adjudicating one such case that the Uttarakhand High Court suggested the enactment of a law preventing conversions for marriage. In that case, the Muslim man had converted to Hinduism to marry a Hindu. The woman’s father had alleged that this was a bogus conversion, as the husband continued to live like a Muslim. The woman, while stating that her marriage had been voluntary, chose to return to her family. No evidence was produced of either the man reconverting to Islam or his wife converting to Islam.
'Marriage for the sole purpose of conversion' would be an impossible proposition to prove. So how is it that the Uttarakhand and Himachal governments did not do what Yogi Adityanath’s government has done – make 'conversion for the sole purpose of marriage' an offence, one which is very easy to prove?
Could it be that the bureaucrats in these states realized that such a provision would violate the freedom of religion guaranteed by Article 25 of the Constitution?
The very wording of Article 25 guarantees the freedom to follow any religion. It guarantees the freedom of conscience, the freedom to profess, practise and propagate religion to all citizens, subject to public order, health and morality.
The right to change one’s religion was expressly upheld by the Himachal High Court in 2012, when dealing with a challenge to the (now replaced) 2006 Himachal anti-conversion law. Observed Justice Deepak Gupta (who later became a Supreme Court judge), "Conversions in our country are permissible if the conversion is by the free will of the convertee…The right to freedom of conscience and belief also includes the very important right to change one’s own belief…If a person changes his religion or belief of his own volition the State has no role to play."
Weren’t UP’s bureaucrats aware of this judgment relating to conversions? Did they not know that by criminalizing "conversion for the sole purpose of marriage", they were going further than the two states that had legislated on this issue?
But they had another model to refer to: their own Law Commission. The UP Ordinance is based on the draft anti-conversion law submitted last year by ex-Justice A N Mittal of the Allahabad High Court, who now heads the UP State Law Commission. In fact, his draft law does not even suggest 'marriage for the sole purpose of conversion’ as an offence. It concentrates only on 'conversion for the sole purpose of marriage.'
In his report, the former judge draws upon previous judgments, especially of the Allahabad High Court, to conclude that most of those who convert only for the sake of marriage do not "know the ABCD" of the new religion that they adopt:
Certainly, our society and more particularly the parents… do not recognize such conversion and the so-called marriage. The result is that the girl, who has converted her religion for the purpose of marriage, is neither accepted by her parents nor by the society and it also creates law and order problem. It cannot be said to be a better position for our society because the converted couples have to reside in the society and if the society do (sic) not recognize their marriage, it further creates various problems to them. Therefore, the Commission feels that if anybody wants to convert himself from one religion to another, he should follow certain procedure.
However, there’s a twist to the tale. On 11 November , the judgments cited by Justice Mittal were held to be "bad in law" by a division bench of the Allahabad High Court. The order cited an earlier judgement (Lata Singh vs State of UP) of the same court:
“… This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes…We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple is not harassed by anyone nor subjected to threats or acts of violence, and anyone who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law.”
The same court is now set to hear challenges to the new UP ordinance.
Freedom to Police
The second reason why Rajasthan, Uttarakhand and Himachal Pradesh have not seen any upheaval of the kind we see in UP, is because only UP’s anti-conversion law gives the police full freedom to act on its own. The Uttarakhand and Himachal Pradesh anti-conversion laws make prior permission from the district magistrate a must for any prosecution to take place under their provisions.
This check has been done away with in UP, and the outcome is there for all to see.
In most of the 15 cases filed since November 28 in UP (as of 4 January 2021), the police’s actions have been questionable. These have included applying the law with retrospective effect; acting on tip-offs from Hindutva groups which have proven to be false; and allowing Hindutva vigilantes to force parents to file complaints.
The cooperation between the UP police and Hindutva groups is based not just on the political clout the latter enjoy, but also on a shared value system. In the words of Bareilly SP Sansar Singh, "Getting married is one thing but why do you need to change your religion? And mostly it was the girl who would change her religion. So all of that will change now.”
Had district magistrates been overseeing the police, would they have allowed such high-handed and even illegal actions?
That’s actually difficult to say. In the Hathras rape case, where a Dalit teenager was gang-raped by four "upper caste" men in September 2020, the district magistrate was in charge when the victim was forcibly cremated against her family’s wishes and in their absence.
In the 2017 Unnao rape case too, the CBI indicted the then district magistrate for ignoring the teenaged victim’s letters to her complaining against BJP MLA Kuldeep Singh Sengar. (Sengar was sentenced to life in December 2019.)
However, the fact that in none of the other states the anti-conversion laws allow the police to act without the permission of the district magistrate, indicates that those governments recognized the need for a check on a uniformed, armed force given to highhandedness.
The UP government obviously doesn’t. Which brings us to the third reason for the mayhem created by its new law – the state’s chief minister.
It is interesting that the chief ministers of Uttarakhand and Himachal Pradesh have deep roots in the BJP’s ideology. The former was an RSS pracharak, the latter a leader of its student wing, the Akhil Bharatiya Vidya Parishad. Yogi Adityanath, on the other hand, has no links with either organisation.
Yet, states under those chief ministers have not seen the kind of ruthless targeting of Muslims married to Hindus that UP has.
Unlike those chief ministers, the UP chief minister’s stand on the so-called "love jihad" has been clear for long. An undated video that surfaced in 2014 has Adityanath declaring at a rally that if Muslims converted one Hindu girl, Hindus would convert 100 Muslim girls.
After the new law was filed, the Vahini, like the Bajrang Dal, has been informing the police of suspected cases of "love jihad". In one such case in Lucknow, the parents of both partners were willing participants in the wedding ceremony that was broken up by the police.
Adityanath has also made it absolutely clear what he wants from this law.
On 31 October 2020, the chief minister declared at an election rally that he would enact a law against conversions done for the sake of marriage. He went on to warn those who did not "mend their ways" and continued to "play with the honour of sisters and daughters" by concealing their real names, that they would have to face death. (Unki Ram naam satya ki yatra nikali jaayegi – they would have to undertake their last journey.)
Even if Adityanath had not issued this threat, the UP police know they have his backing in their arbitrary implementation of the law. For he has advocated "direct action" by the police all through his reign.
Soon after he took over in 2017, Adityanath announced that his government would “knock down criminals”. A year later, he reiterated this policy, by saying that “police encounters would not stop.” Similarly, while the anti-CAA agitation took place across the country, the police’s response to it was the most brutal in UP. The NHRC had to intervene and the government was asked to answer by the high court. But the chief minister only had praise for his police’s actions.
This three-fold combination: a law that flouts constitutional rights, initiated by a chief minister who makes death threats against its violators, and implemented by a police force known for its targeting of Muslims, explains the devastation being wrecked in UP on Hindus and Muslims who choose to make a future together.