By Shikhar Aggarwal and Tanishka Goswami
On November 28 last year, Uttar Pradesh (“UP”) Governor, Anandiben Patel, gave assent to the UP Prohibition of Unlawful Conversion of Religion Ordinance, 2020 (“the Ordinance”). The Ordinance intends to prohibit unlawful conversion from one religion to another through misrepresentation, force, undue influence, coercion, allurement, fraudulent means, or by marriage.[1] Taking cue from this law, the Madhya Pradesh (“MP”) Cabinet approved the MP Freedom of Religion Ordinance, 2020 having several provisions similar to the UP Ordinance.[2] Similarly, the Haryana State Government has set up a three-member committee comprising of only men, to frame a law on ‘love jihad’.[3] A ‘love jihad’ law will soon be introduced in the next session of the Karnataka State Legislative Assembly as well.[4]
Popularly termed as ‘love jihad laws’, these Ordinances and proposals have been subject to severe criticism as unconstitutional measures aimed at attacking individual liberty and autonomy.[5] These laws have been introduced (and are intended to be introduced) despite the Centre’s assurance to the Parliament that no case of ‘love jihad’ was reported, or investigated by any of the central agencies.[6] Furthermore, the term ‘love jihad’ itself lacks any real definition.[7]
Uttarakhand had also enacted a strict anti-conversion law in 2018, containing provisions on cancelling registration of any institution involved in religious conversions.[8] The Supreme Court is currently considering several petitions challenging the UP and Uttarakhand laws as violative of Article 21 of the Constitution of India (“The Constitution”). On January 6, 2021, a three-judge Bench issued notices to the two concerned States, and posted the matter for four weeks later.[9]
In this backdrop, the authors map the contemporary legal and judicial developments surrounding anti-conversion laws in India. They proceed to examine the implications of such laws on the perception of women in light of a stereotypical understanding of inter-faith marriages. They argue that first, the ‘love jihad laws’ violate several constitutional guarantees that focus on ensuring the fundamental right to marry a person of one’s choice; and second, while the issue of forced religious conversions is not absent in the Indian societal fabric, the UP Ordinance is based on, and further reinforces patriarchal notions associated with inter-faith marriages, thereby depriving women of their autonomy.
Looking at What the UP ‘Love Jihad’ Ordinance Entails
The Ordinance mainly promulgates the following stringent provisions: firstly, §3 prohibits the religious conversion of a person by another through any means, including marriage. One desiring to convert his/her religion has to provide a declaration to the District Magistrate (“DM”), or the Additional DM, that s/he wishes to convert – such declaration has to be provided at least sixty days in advance.[10] Second, post the declaration, the DM shall get an enquiry conducted through the police in order to ascertain the real intention, purpose, and cause of the proposed conversion.[11]
The State’s interference does not halt at this stage – it extends to the post-conversion phase as well. Third, §9(1) requires the converted person to again send a declaration to the DM within sixty days of the conversion. S/he has to then mandatorily be present before the DM within twenty-one days of giving the second declaration to confirm its contents. Lastly, all offences under the Ordinance have been characterised as non-bailable and cognizable in nature through § 7. Within a month of the enactment of this Ordinance, 51 arrests in 14 cases were made by the UP Police – surprisingly, only two of these 14 complaints were made by the victim girls.[12]
Autonomy, Liberty and Equality: Undertaking A Legal-Constitutional Analysis
At the outset, it is clear that the constitutional foundation of the Ordinance stands on shaky grounds. The controversy represents the classic individual-community ‘clash’: the individual’s right to freely choose and marry one’s partner is at odds with the conservative Indian society’s interest in ‘regulating’ inter-faith (in addition to inter-caste) marriages. This, and several other laws (like the earliest one in Odisha dating back to 1967), seek to ‘protect’ the freedom of religion and curb the ‘menace’ of unlawful conversions.[13]
The UP Ordinance appears to be facially-neutral: it ‘equally’ applies to persons converting to and from all religions, outlawing all conversions for the purpose of marriage. However, as discussed in the following section, the law has a disparate impact upon women, since it is heavily founded upon patriarchal notions. The Supreme Court elaborated upon this concept of ‘indirect discrimination’ in Anuj Garg v. Hotel Assn. of India while adjudicating upon the constitutionality of provisions prohibiting the employment of women in bars. The Court noted that facially-neutral provisions may reinforce prevalent social inequalities and hierarchies in the garb of ensuring security for women.[14] Hence, courts in India have focussed on a provision’s discriminatory ‘effect’, despite the neutrality in its language.[15]
Accordingly, the UP law is violative of the constitutional guarantees of equality[16] and non-discrimination.[17] It renders religious conversions the sole basis for terming an otherwise-validly solemnised marriage as void.[18] Additionally, it forms the basis for subjecting inter-faith couples to requirements akin to that of a civil marriage as prescribed by statutes such as the Special Marriage Act, 1954, when they may actually seek to marry under personal laws.[19]
The Ordinance allows the couple’s relatives to challenge the validity of the conversion (and thereby, the marriage). A simple, and unfounded/proof-less allegation, in itself, would reverse the burden of proof, calling upon the person facilitating the conversion to prove its voluntary nature, disregarding the couple’s testimony indicating their consent.[20]
Such disregard for the couple’s consent for marriage also comes to fore upon examining the UP government’s recent counter-affidavit before the Allahabad High Court, in response to PILs challenging the constitutionality of the Ordinance. Conversion of faith by a Hindu, after marrying a Muslim, was cited as an example of forceful conversion, simply because such conversion was not out of choice, but was necessitated by the intervention of personal laws.[21]
However, in a similar vein, the Supreme Court previously outlawed only those religious conversions, which intended to enable an individual to contract bigamous marriages.[22] Additionally, in Rev. Stanislaus v. State of M.P., it has explicitly held that the fundamental right to freely propagate one’s religion under Article 25 does not include the right to cause religious conversions.[23] Therefore, it upheld the constitutionality of Odisha and MP laws prohibiting conversion by “force, fraud or allurement” – it should be noted that neither of them included marriage within the prohibited domain, akin to the UP law.[24]
Thereafter, the UP government has associated such marriages, notwithstanding their voluntary nature, with a “loss of dignity and equality of status”, arising out of an exercise of one’s personal liberty.[25] Clearly, this is a regressive and inadequate explanation for a law vesting excessive and overbroad powers with the State: it could not only annul inter-faith marriages, but also invoke the criminal law to address what may have otherwise been a legitimate State aim.
This is after the Supreme Court, as recently as in Shafin Jahan v. Ashokan K.M. (2018), affirmed the right to marry a person of one’s choice as an integral part of Article 21, lying within one’s exclusive domain and forming a core of one’s inviolable privacy.[26] In this light, the recent findings of the Allahabad High Court, in Safiya Sultana v. State of U.P. (2021)[27], are also noteworthy. The Court made the notice requirement under the ‘secular’ Special Marriage Act optional in nature, observing that it increased difficulties in solemnising marriages, especially for couples marrying ‘against the family’s wishes’.[28] It upheld the sacrosanct nature of autonomy in making the most intimate decisions of one’s life.[29] The Court recognised the privacy concerns caused by the publication of such notice at large, noting how such requirements did not exist for marriages contracted under personal law.[30]
Additionally, the High Court in Salamat Ansari v. State of U.P. (2020)held that the State cannot encroach upon the right of two adults to live together as a married couple.[31] It reversed its earlier observations in Noor Jahan (2014)and Priyanshi (2020), where religious conversions undertaken only for the purpose of entering into a marriage were deemed unacceptable.[32] Hence, it can be concluded that the current law (and its justification) do not account for the autonomy behind one’s decision to practise the faith of their partner upon marriage. The law undermines the long-held policy of the Indian State that religion is a matter of one’s private domain.
A Patriarchal ‘Love Jihad’ Rhetoric Strips Women of their Freedom
As noted, the UP Ordinance emboldens surveillance by the State, thereby infringing upon the constitutionally-guaranteed right to freedom of religion and privacy. In this light, it becomes crucial to examine the impact on the understanding of the personhood of women that this Ordinance promulgates. The law aims to ‘protect’ women from being seduced, allured and coerced into conversion by men from other religious communities.[33] Hence, the law perceives women as a homogenous, ignorant group who cannot make informed choices while choosing their partners.[34]
The law represents a continuing patriarchal trajectory in the Indian political society that has metamorphosed women into a group devoid of agency, a symbol of both honour and humiliation.[35] This victimisation of women as a group is not restricted to any one religious community – personal laws in the country rely on the notion of ‘religious sanctity’ in order to deny constitutional equality to women in personal relations.[36] As feminist scholar Charu Gupta notes, since the 1920s, different religious institutions aimed at sharpening communal boundaries focussed on how women of their respective communities had to be protected from falling prey to men of other religious communities – there was an invocation of fear amongst families against elopement of women of their house if strict control over them was not exercised.[37]
The Ordinance perceives a woman’s honour as being placed in her vagina[38] – men of a particular religious community are understood as losing their ‘intrinsic honour’ through the behaviour of women belonging to their families or kinships.[39] In Anuj Garg, the apex Court recognised how the right to self-determination of women is a significant “offshoot of the gender justice discourse.” The Court pertinently observed how the tension between the right to autonomy and security is a fundamental tension for law-making[40] – however, it went on to note that the measures to safeguard an individual’s autonomy must not be so restrictive that the very essence of the guarantee is lost.[41]
In a string of judgments[42], the Supreme Court has emphasised on how the right to marry a person of one’s choice is an integral facet of an individual’s right to life and liberty under Article 21 of the Constitution. In Lata Singh v. State of Uttar Pradesh (2006), the Court directed State administrative agencies and Police authorities in Uttar Pradesh to take stern action against those who subject an interfaith couple to threats or harassment.[43] However, the concerned Ordinance aims to take the opposite route by constituting the State and the Police as the very source of threats and harassment. In one instance, upon a complaint filed by a Hindu woman’s father, a 21-year old Muslim man was arrested despite the fact that he had not been in touch with the woman since her marriage last year.[44] In another instance, thirteen members of a Muslim man’s family were arrested for ‘hatching a conspiracy’ to convert a Hindu woman, when she had earlier ‘eloped’ with him out of free will.[45]
Concluding Remarks
Adopting a typical paternalistic attitude, the Chief Minister of MP recently remarked that the State would soon have a mechanism wherein the police would track working women for their ‘safety’.[46] Furthermore, the recent uproar over the ‘Tanishq’ advertisement, which depicted a Hindu woman married into a Muslim household[47], demonstrates how there prevails a strong sentiment of disapproval against women’s professional and personal freedom alike in our society till date.
In this context, the authors believe that such stringent anti-conversion laws would only further empower vigilante groups, especially in a state where anti-Romeo squads[48] have already been employed to strictly crack down on consensual relationships. At the same time, there are huge costs that our society pays for the promulgation and implementation of such overzealous laws: a pregnant Hindu woman miscarried her child, upon being forcibly separated from her Muslim husband[49], among several other unconfirmed reports of torture in police detention.
The authors have explained how the recent overbroad ‘love jihad’ laws are inconsistent with the fundamental rights of equality, non-discrimination, and personal liberty. Further, the authors have explored how these laws infantilise women, and their role, choice and consent in marriage and deciding their own partners. To that end, the laws are motivated by the notion that the State knows what is the best for a couple, better than the concerned individuals themselves. It can, therefore, be stated that the Ordinance is an example of how the State may interfere into the private domain of individuals, under the garb of ‘regulating’ an issue, “in the interests of society”, thereby setting a dangerous constitutional and social precedent for the future.
The authors, Shikhar Aggarwal and Tanishka Goswami, are currently law students at the National Law University (NLUD), Delhi.
[1] Statement of Objects and Reasons, The UP Prohibition of Unlawful Conversion of Religion Ordinance, 2020.
[2] The Religious Freedom Act, 2020.
[3] Haryana Govt. Sets up 3-member committee to draft law against ‘love jihad’, The Print, available at https://theprint.in/india/haryana-govt-sets-up-3-member-committee-to-draft-law-against-love-jihad/552339/, last seen on 20/01/2021.
[4] Karnataka to introduce law against love jihad in next Assembly Session: CM, Business Standard, available at https://www.business-standard.com/article/politics/karnataka-to-introduce-law-against-love-jihad-in-next-assembly-session-cm-120120800149_1.html, last seen on 20/01/2021.
[5] Woman’s Autonomy Can’t be Denied under the Garb of Protection: Petition Opposes UP Ordinance, The Wire, available at https://thewire.in/law/women-autonomy-love-jihad-anti-conversion-ordinance-uttar-pradesh, last seen on 20/01/2021.
[6] ‘No case of love jihad in Kerala’: Centre tells Parliament, The Hindustan Times, available at https://www.hindustantimes.com/india-news/no-case-of-love-jihad-in-kerala-centre-tells-parliament/story-dQHAMLCBvkBcgoQJbtxF1L.html, last seen on 20/01/2021.
[7] What is the definition of ‘Love Jihad’?, The Deccan Herald, available at https://www.deccanherald.com/national/what-is-the-definition-of-love-jihad-919701.html, last seen on 23/01/2021.
[8] Uttarakhand cabinet strengthens anti-conversion law, The Times of India, available at https://timesofindia.indiatimes.com/city/dehradun/ukhand-cabinet-strengthens-anti-conversion-law/articleshow/65328418.cms, last seen on 23/01/2021.
[9] UP, Uttarakhand ‘love jihad’ laws challenged, SC issues notice, The Indian Express, available at https://indianexpress.com/article/india/up-uttarakhand-love-jihad-laws-challenged-sc-issues-notice-7136005/, 20/01/2021.
[10] s. 8(1), Ordinance, 2020.
[11] ibid, at s. 8(3).
[12] One month of ‘love jihad’ law in UP: 51 arrests made, 14 cases lodged, only 2 complaints from victims, India Today, available at https://www.indiatoday.in/india/story/month-of-love-jihad-law-up-arrests-complaints-1754073-2020-12-29, last seen on 20/01/2021.
[13] The Orissa Freedom of Religion Act, 1967.
[14] Anuj Garg v. Hotel Assn. of India, (2008) 3 SCC 1.
[15] Madhu v. Northern Railway, 2018 SCC OnLine Del 6660; Inspector (Mahila) Ravina v. Union of India, W.P. (C) 4525/2014.
[16] Art. 14, The Constitution of India.
[17] Art. 15, The Constitution of India.
[18] Jayna Kothari, UP anti-conversion law amounts to discrimination and a violation of the right to equality, The Indian Express (18/12/2020), https://indianexpress.com/article/opinion/columns/up-anti-conversion-law-love-jihad-7109029/, last seen on 20/01/2021.
[19] ibid.
[20] Insiyah Vahanvaty, UP anti-conversion law pushes women back under parental and community control, The Indian Express (17/12/2020), https://indianexpress.com/article/opinion/columns/love-jihad-uttar-pradesh-anti-conversion-law-yogi-adityanath-7107755/, last seen on 20/01/2021.
[21] Religious Conversion For Marriage Not Exercise of Choice When It Is Due to Compulsion of Personal Law: UP Govt Defends ‘Love Jihad’ Ordinance, LiveLaw (07/01/2021), https://www.livelaw.in/top-stories/religious-conversion-marraige-love-jihad-up-ordinance-government-allahabad-high-court-168092, last seen on 20/01/2021.
[22] Sarla Mudgal v. Union of India, (1995) 3 SCC 635; Lily Thomas v. Union of India, (2000) 6 SCC 224.
[23] Rev. Stanislaus v. State of M.P., (1977) 1 SCC 677.
[24] Anoop Ramakrishnan, Anti-Conversion Legislation: Comparison of the UP Ordinances with Other State Laws, The PRS Blog, available at https://www.prsindia.org/theprsblog/anti-conversion-legislation-comparison-up-ordinance-other-state-laws, last seen on 20/01/2021.
[25] Supra 21.
[26] Shafin Jahan v. Ashokan K.M., (2018) 16 SCC 368.
[27] Safiya Sultana v. State of U.P., 2021 SCC OnLine All 19.
[28] Perveez Mody, Love and the Law: Love-Marriage in Delhi, 36 Modern Asian Studies 1, 225 (2002).
[29] Akshat Agarwal, With Allahabad HC Ruling on Special Marriages, Individual Rights Trump Community Interest – rightly, Scroll.in, available at https://scroll.in/article/984160/with-allahabad-hc-ruling-on-special-marriages-individuals-rights-rightly-trump-community-interests, last seen on 21/01/2021.
[30] Manu Sebastian, Allahabad HC Verdict Comes as Savior for Inter-Religious Couples Caught Between Special Marriage Act & UP Anti-Conversion Ordinance, LiveLaw, available at https://www.livelaw.in/columns/allahabad-high-courtc-inter-religious-couples-special-marriage-act-up-anti-conversion-ordinance-168383, last seen on 20/01/2021.
[31] Salamat Ansari v. State of U.P., 2020 SCC OnLine All 1382.
[32] ‘Conversion just for the sake of marriage not acceptable’, says Allahabad High Court, Scroll.in, available at https://scroll.in/latest/977226/conversion-just-for-the-sake-of-marriage-not-acceptable-says-allahabad-high-court, last seen on 20/01/2021.
[33] Saumya Uma & Niti Saxena, Rights and Wrongs of Anti-conversion Law(s): Juxtaposing ‘Honor’ with Women’s Agency, 56 Economic & Political Weekly 1, (2021).
[34] ibid.
[35] Charu Gupta, Hindu Women, Muslim Men: Love Jihad and Conversions, 44 Economic & Political Weekly 51, 13 (2009).
[36] Archana Parashar, Gender Inequality and Religious Personal Laws in India, 14 The Brown Journal of World Affairs 2, 104 (2008); P. Lakshmi, Personal Laws and the Rights of Women, 1 Christ University Law Journal 1, 94 (2012).
[37] Supra 35.
[38] Kamla Bhasin, When Personal is the Political: Feminism Unplugged by a Feminist, The Citizen, available at https://www.thecitizen.in/index.php/en/NewsDetail/index/7/10216/Where-Personal-Is-The-Political-Feminism-Unplugged-By-A-Feminist, last seen on 20/01/2021.
[39] EPW Engage, ‘Love Jihad’ is an Islamophobic Campaign: Why Honor is About Controlling Women’s Bodies, EPW Engage, available at https://www.epw.in/engage/article/love-jihad-islamophobic-campaign-whose-honour-is-it-anyway, last seen on 20/01/2021.
[40] Supra 14, at 34.
[41] Supra 14, at 36; Joseph Shine v. Union of India, (2019) 3 SCC 39.
[42] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1; Shakti Vahini v. Union of India, (2018) 7 SCC 192; Ashok Kumar Todi v. Kishwar Jahan, (2011) 3 SCC 758.
[43] Lata Singh v. State of Uttar Pradesh,(2006) 5 SCC 475.
[44] ‘Love Jihad’: In first case, Muslim man from UP’s Bareilly arrested under new law, Scroll.in, available at https://scroll.in/latest/980183/love-jihad-in-first-case-muslim-man-from-ups-bareilly-arrested-under-new-law, last seen on 31/01/2021.
[45] UP Muslim man ‘elopes’ with a Hindu girl, police put 13 of his family in jail for ‘conspiracy’, The Print, available at https://theprint.in/india/up-muslim-man-elopes-with-a-hindu-girl-police-put-13-of-his-family-in-jail-for-conspiracy, last seen on 31/01/2021.
[46] Working women will be tracked for their safety, says Madhya Pradesh CM Shivraj Chouhan: Report, Scroll.in, available at https://scroll.in/latest/983958/working-women-will-be-tracked-for-their-safety-says-madhya-pradesh-cm-shivraj-chouhan-report, last seen on 20/01/2021.
[47] Tanishq withdraws advertisement on inter-faith marriage following social media criticism, The Hindu, available at https://www.thehindu.com/news/national/tanishq-withdraws-advertisement-on-inter-faith-marriage-following-social-media-criticism/article32841428.ece, last seen on 31/01/2021.
[48] Anti-Romeo & Love Jihad: Experiments in moral policing in Uttar Pradesh, The Indian Express, available at https://indianexpress.com/article/explained/anti-romeo-love-jihad-experiments-in-moral-policing-in-uttar-pradesh/, last seen on 31/01/2021.
[49] UP ‘Love Jihad’ Arrest: Private Lab Confirms Miscarriage of 22-Year-Old Woman, The Wire, available at https://thewire.in/rights/uttar-pradesh-moradabad-love-jihad, last seen on 20/01/2021.
The Journal of Indian Law and Society 