The Unconstitutionality of ‘Love Jihad’ Laws

The Unconstitutionality of ‘Love Jihad’ Laws

On 28 November, Uttar Pradesh promulgated the Prohibition of Unlawful Conversion of Religion Ordinance. The ordinance criminalises religious conversions “executed for the sole purpose of marriage,” punishable by up to 10 years in prison. Governments in four other states ruled by the Bharatiya Janata Party (BJP) — Haryana, Madhya Pradesh, Karnataka, and Assam — too have expressed their intention to make similar laws. Contrary to popular perception, Uttar Pradesh is not the first Indian state to pass such a law. BJP-ruled Uttarakhand and Himachal Pradesh enacted such laws in 2018 and 2019 respectively. Anti-religious conversion laws themselves are not a new phenomenon in India. Such laws have existed in some eight Indian states since 1967, when Odisha enacted its Freedom of Religion Act.

Members of the BJP have argued that such laws are needed to check a supposed conspiracy of virile Muslim men to convert gullible Hindu women under the garb of love and marriage, with an intent to change India’s demographics. These laws are the Indian version of anti-miscegenation laws that were in place in Nazi Germany, segregationist United States, and apartheid South Africa to prevent inter-racial marriages and sexual relations. India’s laws against the so-called 'love jihad’ are not only unconstitutional but also a blatant misuse of state authority. By criminalising conversions for marriage, the state is suppressing the agency of women. These laws that criminalise the so-called “conversion for the sole purpose of marriage” fly in the face of a woman’s fundamental right to choose someone whom she can love and partner with.

What is ironic is that these state laws come despite the central government’s admission in Parliament in February that “no such case [of ‘love jihad’] has been reported by any central agency.” Only in November, a special investigation by Kanpur police into some 14 inter-faith marriages ruled out any such conspiracy. In the past, similar conclusions were reached by the National Investigation Agency (NIA) in Kerala and Karnataka.

A matter of personal choice

Except, of course, where the state is legally justified to intervene, marriage is a deeply personal affair. The right to choose a partner is an intimate decision of an individual in which no one else should have any business. Therefore, it is for an individual to decide whether if her or his partner should be of same faith or not. This was recognised by a nine-judge bench of the Supreme Court, in the landmark Puttaswamy judgement of 2017 that upheld the right to privacy. The court observed: “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation […] Personal choices governing a way of life are intrinsic to privacy.”

The court echoed this in the Hadiya case — “How Hadiya chooses to lead her life is entirely a matter of her choice” — and rejected the allegation that Hadiya had been forcefully converted for the purpose of marriage. More recently, a two-judge bench of the Allahabad High Court reiterated this principle while quashing an FIR against a Muslim man accused of forcefully converting and marrying a Hindu woman. The court relied on the Hadiya judgement to rule that:

“To disregard the choice of a person who is of the age of majority would not only be antithetic to the freedom of choice of a grown-up individual but would also be a threat to the concept of unity in diversity […] Right to live with a person of his/her choice irrespective of religion professed by them is intrinsic to right to life and personal liberty. Interference in a personal relationship would constitute a serious encroachment into the right to freedom of choice of the two individuals.”

More importantly, this order of the Allahabad High Court also nullified two previous judgements of the same court that had deemed unacceptable religious conversions for the sole purpose of marriage. In the latest order, the court said that “None of these judgments dealt with the issue of life and liberty of two matured individuals in choosing a partner or their right to freedom of choice as to with whom they would like to live. We hold the judgments in Noor Jahan and Priyanshi as not laying good law.” The chief minister of Uttar Pradesh had cited one of these earlier orders to further justify the so-called anti-‘love jihad’ law.

Chilling effects

As a corollary, laws criminalising inter-faith marriages violate an individual’s fundamental right to freedom of religion guaranteed under the Constitution. The state should have no role to play in imposing its choice of religion on its citizens (Mustafa and Sohi 2017). This applies even to cases when one wishes to convert to another religion for the sake of marriage if she or he is doing so with a free will. Restrictions on the freedom to convert have a “chilling effect” on the freedom of religion (Bielefeldt 2010).

Such anti-conversion laws, particularly owing to their vagueness, are liable to be misused by individuals and groups with vested interests to exploit the already existing communal fault lines. The Uttar Pradesh ordinance’s requirement of two months’ notice to the district magistrate for conversion ahead of marriage can easily turn into a disaster for an inter-faith couple should there be any objection from one of the families or anyone else. A similar requirement of a 30-day notice under the Special Marriage Act 1954, has proven to be a tool of harassment for inter-faith couples (Bhandare and Karwa 2020). (A challenge against this requirement is pending before the Supreme Court.)

Laws against the so-called ‘love jihad’ incentivise vigilantism and hooliganism, and sound a death knell to the constitutional liberty and privacy of inter-faith couples. They provide leverage to anyone to misuse the law and state authority against an inter-faith couple. At a time when efforts should have been made to improve the Special Marriage Act — the only law that allows inter-faith marriages without the need to convert — the BJP is instead treading the wrong and dangerous path toward the communalisation and criminalisation of love and marriage.

 

Burhan Majid is an assistant professor at the Hamdard Institute of Legal Studies and Research, Jamia Hamdard, New Delhi.

Burhan Majid
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