Avinash Kumar Yadav, a third-year student at National Law University, Delhi, India, discusses the recent "Love Jihad" law in the state of Uttar Pradesh in India and the effect it has on the fundamental right to marry...
The Uttar Pradesh Prohibition of Unlawful Religious Conversion Ordinance, 2020 (“the Ordinance”) popularly known as the law on ‘Love Jihad’, was approved by the state cabinet on 24 November 2020 and received the assent of the Governor of Uttar Pradesh (“UP”) on 28 November 2020 making it enforceable. Section 3 of the ordinance states that no person shall convert or attempt to convert directly or otherwise any person from one religion to another by use or any practice of misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage, nor should any person abet convince or conspire such conversion. The law makes religious conversion a cognizable and non-bailable offence, which might attract punishment of up to 10 years in prison along with fine. Such similar anti-conversion laws can be found in 8 more Indian states. More than 35 arrests have been made so far under this law majority of which were alleged to be consensual.
Though jihad in itself is not a negative term it has gained additional attention in recent decades through its use by Islamic terrorist groups. Hence, the term ‘Love Jihad’ would technically mean marrying someone with a sole intent to convert them to one’s religion. The term Love Jihad hasn’t explicitly been mentioned in the Ordinance, but became a part of the controversy after its use by UP’s Chief Minister, Yogi Adityanath, on multiple occasions. He stated that his government was working hard to bring a strict law to curb incidents of “Love Jihad”. Though the Ordinance doesn’t mention any specific religion, it has widely been criticized as a move to please the Hindu majority population for garnering votes, leaving the minority Muslim community at the disadvantaged end.
Article 16 of the Universal Declaration of Human Rights, to which India is a signatory, recognizes inter-faith marriages as a part of human rights. The Constitution of India also guarantees freedom of religion from article 25 to 28. According to a study by Indian Human Development Survey (IHDS) and the National Council of Applied Economic Research (NCAER) in 2005, it was observed that only 2.21% of all women between the age of 15-49 were involved in inter-faith marriages. This is not a significant number and shows how social norms influence, or rather obstruct personal choices. The data indicate that caste and religion are integral components of the Indian society and act as a major barrier between communities and bring division, hatred and tension among various social groups. Marriages within the same caste and religions are the norms of the Indian society and those who dare to break these social norms, by marrying outside their caste or religion, face the repercussions of violence, social boycott, family boycott and honour killing.
Indian courts, through various landmark judgements, have tried to uphold the right to choose a partner of a person’s choice as a fundamental right, additionally reiterating that this right shall not be affected by the differences in faith and religion. In Lata Singh v. State of Uttar Pradesh, the Supreme Court of India (“SC”) held that the right to marry as a component of the right to life mentioned under article 21 of Indian Constitution. Further, in the case of Shakti Vahini v. Union of India, the SC reiterated that a person’s right to marry, regardless of their religion, is part and parcel of their fundamental right under Article 21 of the Constitution. In Trishla Rai And Another v. the State of U.P., the Allahabad High Court(which has jurisdiction over U.P.) held that individual autonomy in such cases shall be given supreme importance and as later defined by K.S. Puttaswamy v. Union of India judgement the autonomy of an individual is the ability to make decisions in vital matters of concern to life. Additionally, the SC, in the Shafin Jahan’s case, upheld the right to choose a life partner as an absolute right irrespective of the religion or faith. Hence, it can be argued that any law that deprives anyone of these rights shall be deemed to be unconstitutional.
This Ordinance fails the test of constitutional scrutiny at various levels; Section 3 of the Ordinance prohibits any kind of religious conversions through misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage. However, this provision shall not be applicable in cases if the person re-converts to their previous religion. The law requires interfaith couples to inform the District Magistrate 2 months in advance to their wedding. This procedure has been mentioned in Section 8 & 9 of the Ordinance, which makes such a notice mandatory, followed by a police investigation to check whether the conversion was willful. This power bestowed upon the authorities intrudes into the individuals’ choice of partners or their religion, leading to violation of the right to privacy, autonomy and personal liberty.
Furthermore, section 12 the UP law makes it even worse because the burden of proof that conversion was ‘lawful’ lies on the person who has ‘caused’ the conversion. The opinion of the person who has converted is not taken into account at all leading to Brahminical-patriarchal treatment of women as property. In a situation where the wife us being asked to covert, such a law can be used by the parents of the bride to threaten the inter-faith couple ultimately leading to forcing the Groom to prove that the conversion wasn’t a forceful one. The law is politically motivated to please the majority Hindu population and government, in this case, seems to be more interested in harassing the ‘convertor’. Such a law violates the various judgments of Indian courts, which upheld that right to choose a life partner and the right to religion and is most likely to be struck down in future.
Marriages are considered to be a powerful tool to bridge differences and the best means to remove the barriers between various social groups based on caste and religion. Especially in times like these when there is a need for more and more of inter-faith marriages to abridge the ever-increasing polarization in Indian society, such a law discourages people from interfaith marriages. Also, the Indian Constitution guarantees its citizens right to freedom and choice and such a law has a chilling effect on any adult’s right to love and marry a person of their choice.
Avinash Kumar Yadav is a third-year student at National Law University, Delhi.
Suggested citation: Avinash Kumar Yadav, Illegality of Anti-Conversion (Love Jihad) Law in Indian States, JURIST – Student Commentary, January 18, 2021, https://www.jurist.org/commentary/2021/01/avinash-kumar-yadav-love-jihad-uttar-pradesh-india/.
This article was prepared for publication by Khushali Mahajan, a JURIST staff editor. Please direct any questions or comments to her at email@example.com
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