Love Jihad Law: The Internal Politics and Its Constitutional Validity

About the law on love jihad

Love Jihad (also known as Romeo Jihad) is a conspiracy theory developed by Hindutva supporters to incite prejudice against Muslims. According to the conspiracy theory, Muslim men use seduction, feigning love, deception, kidnapping, and marriage to convert Hindu women to Islam as part of a larger “war” by Muslims against India and an organized international campaign a plot for dominance through demographic growth and replacement.

The conspiracy theory was created in 2009 as part of a propaganda campaign and was dispersed by Hindutva publications such as the Sananta Prabhat and Hindu Janajagruti Samiti, calling Hindus to protect their women from Muslim men who were depicted as charming individuals and lascivious rapists. Since then, organizations such as the Rashtriya Swayamsevak Sangh and the Vishva Hindu Parishad have been credited with their spread in India and abroad, respectively.

The infamously known as the ‘Love Jihad’ law, the “UP Vidhi Virudh Dharma Samparivartan Pratishedh Adyadesh 2020” (prohibition of unlawful religious conversion), states, among other things, that a marriage will be declared null and void if the “sole intention” of the same is to “change a girl’s religion.” The law approved by the Uttar Pradesh Cabinet categorizes punishment and fines into three categories. Three other BJP-ruled states – Madhya Pradesh, Haryana, and Karnataka – are currently considering legislation to prevent “forcible conversions” through marriage.

History of Love Jihad Allegations 

The concept gained national attention in India in 2009, with alleged conversions occurring first in Kerala and then in Karnataka. Following that, the claims spread throughout India and beyond, into Myanmar, Pakistan, and the United Kingdom. The origins of the modern Love Jihad conspiracy can be traced back to colonial India. A Muslim bureaucrat in Kanpur was charged in 1924 with “abducting and seducing” a Hindu girl and forcibly converting her. A Hindu organization demanded that the woman be “recovered” from the bureaucrat’s home. The kidnapping of Hindu women was even debated in colonial India’s Parliament.

The partition of India in 1947 resulted in the formation of India and Pakistan, each with a different majority religion. This resulted in widespread migration, with millions of people migrating between countries and widespread reports of sexual predation and forced conversions. Women on both sides of the conflict were affected, prompting both the Indian and Pakistani governments to launch “recovery operations.” This tense history resulted in repeated clashes between faiths in the decades that followed. During the resurgence of the controversy in 2014, protests turned violent amid growing concerns, despite the fact that the concept was considered “an absurd conspiracy theory by mainstream, moderate Indians” according to Reuters.

The marriage of a converted Hindu woman Akhila alias Hadia to a Muslim man Shafeen Jahan was annulled in May 2017 by the Kerala High Court on the grounds that the bride’s parents were not present and did not consent to the marriage. Shafeen Jahan challenged the court’s decision in the Supreme Court of India, which overturned the Kerala High Court’s annulment of Hadiya’s marriage. In September 2020, Uttar Pradesh Chief Minister Yogi Adityanath directed his administration to devise a strategy to prevent “religious conversions in the name of love” and even considered passing an ordinance if necessary.

Ordinance Passed By Uttar Pradesh Government 

As the Uttar Pradesh Cabinet approved a draught ordinance prohibiting forcible inter-faith conversions, also known as “love jihad,” amid similar moves by other states, there is a sense that the law will be implemented more “vigorously” in Uttar Pradesh than in any other state. In its report to the Chief Minister a year ago, the Uttar Pradesh State Law Commission proposed such a law in the state, citing rising incidents of forced religious conversions or conversions through fraudulent means. However, as other states consider enacting similar legislation, the Uttar Pradesh government is prepared to implement it.

The issue of “love jihad” has been on UP Chief Minister Yogi Adityanath’s agenda since before he became Chief Minister of Uttar Pradesh, and it is considered near and dear to his heart. While the Bharatiya Janata Party did not include the term “love-jihad” in its poll agenda in previous state assembly elections, Adityanath, even as Gorakhpur MP, was never shy about speaking out about it. His organization, “Hindu Yuva Vahini,” which is no longer active, had actively worked to stop alleged religious conversions in eastern Uttar Pradesh. As Chief Minister, he called it a “dangerous trend” at a rally in Kerala in 2017 and was the first to direct his officers to enact legislation to combat “love jihad” incidents in August of 2020.

Features of Love Jihad Law

Following are some features of love jihad law or Uttar Pradesh Prohibition of Unlawful Religious Conversion Law, 2020 –

1. Marriage solely for the purpose of converting a girl’s religion will be declared null and void, with a prison sentence of up to ten years.
2. Forced religious conversion will be punished with a 1-5-year prison sentence and a Rs. 15,000 fine.
3. If the woman is a minor or belongs to a Scheduled Caste or Scheduled Tribe, the sentence will be between 3 and 10 years in prison, with a fine of up to Rs. 25,000.
4. Mass conversions will be punishable by 3-10 years in prison and a Rs 50,000 fine for the organisations that carry them out.
5. Regardless of what is stated in the Code of Criminal Procedure, 1973, all offences under this law are cognizable, non-bailable, and triable by the Court of Sessions.
6. It would be the responsibility of the person undergoing religious conversion to demonstrate that it is not being done forcibly or fraudulently. If a violation of this provision is discovered, the offender faces a jail term of 6 months to 3 years and a fine of at least Rs 10,000.
7. If a person wishes to change their religion after marriage, an application will have to be submitted to the District Magistrate two months in advance. The conversion can take place if permission is granted. If the proposed conversion violates the provisions of this law, it is illegal and null and void.

Constitutional Validity of Love Jihad Law 

It is widely assumed that such conversions involve coercion or deception, and thus Hindu women should be protected from conversions. As a result, the Ordinance declares that it intends to address “unlawful conversions” and related issues. While a law aimed at preventing forcible or fraudulent religious conversions cannot be faulted, this Ordinance obstructs even voluntary conversions and puts a large number of people in jail for long periods of time.

In India’s Constitution, freedom of conscience and the right to freely profess, practise, and propagate religion are expressly recognized as fundamental rights. The Supreme Court has interpreted this right to include the right to convert to a different religion. The Ordinance severely restricts the right to convert.

Section 8 states that “anyone planning to convert must notify the District Magistrate at least 60 days in advance”. The Magistrate is required to have the police conduct an investigation to determine the “intention” and “purpose” of the conversion. Following that, the convert is required to send a proclamation of conversion to the Magistrate, who must then display the declaration in his office to inform the general public. The public may even object to the conversion by notifying the Magistrate. Converting without going through this time-consuming process is punishable by imprisonment for up to three years. It is a well-established principle of constitutional law that limitations on fundamental rights must be reasonable in nature and proportional to the harm sought to be avoided.

This Ordinance places unreasonable restrictions on the right to practice one’s preferred religion. By imposing an onerous procedure that allows the government to intrude into citizens’ private lives, a chilling effect has been created. The Supreme Court ruled in K.S. Puttaswamy v. Union of India that the right to privacy includes the right to be alone and protects personal choices from the state’s suspicious gaze. Marriage and faith are explicitly recognized as “intimate matters” protected by the right to privacy in the same case. A mandatory police investigation into every conversion to determine the reason for the conversion, as well as publication of the declaration of conversion to let the public know about and object to the conversion, undermines the constitutional principle of religious faith being a private matter.

Instead of emphasizing the right of victims of forcible or fraudulent conversions to seek legal redress, this law treats all religious conversions with suspicion. It infantilizes citizens by assuming that anyone who wishes to convert is being coerced or misled and thus requires state protection. Article 21 of the Constitution guarantees the right to marry the person of one’s choice. Marriage intimacies exist within an inviolable core zone of privacy, and the choice of a life partner, whether by marriage or otherwise, is part of an individual’s “personhood and identity.”

Internal Politics of Love Jihad Law 

By 2014, the conspiracy theory had become a significant belief in the state of Uttar Pradesh, contributing to the success of the Bharatiya Janata Party campaign in the state. Legislation against the alleged conspiracy has been introduced in a number of states ruled by the party, and it has been implemented in the state of Uttar Pradesh by the Yogi Adityanath government, where it has been used as a tool of state repression of Muslims and a crackdown on interfaith marriages. In the past, vigilante groups have used the ruse of “love jihad” to disrupt mixed weddings and harass and intimidate interfaith couples, despite the fact that investigations by state agencies have found no evidence to support such theories. The Allahabad High Court ruled that the Love Jihad law was passed that the “right to live with a person of his/her choice, irrespective of religion professed by them, is intrinsic to the right to life and personal liberty,” overturning an earlier ruling in a case filed against a Muslim man by the parents of his Hindu wife.

Though anti-conversion laws have existed in India since 1967, Uttarakhand and Himachal Pradesh were the first to include a clause regarding marriages. The Freedom of Religion Act of Uttarakhand, 2018, prohibits conversion through misrepresentation, force, fraud, undue influence, coercion, allurement, or marriage. It is a non-bailable offence with penalties ranging from one to five years in prison and a fine. In 2019, Himachal Pradesh passed a similar law.

Recent Case of Gujarat 

The Gujarat Assembly passed the Freedom of Religion Act, 2003 Amendment Bill, which seeks to penalize forcible or fraudulent religious conversion through marriage or “love jihad” introducing stringent provisions against forcible conversion through marriage or allurement. If the accused is found guilty, the Bill provides for 3-10 years in prison and a fine of up to 5 lakhs. According to its “statement of object” the Bill amends a 2003 Act and seeks to curb the “emerging trend in which women are lured to marriage for the purpose of religious conversion“. The Gujarat Freedom of Religion Act of 2003 addresses religious conversion by allurement, force, misrepresentation, or any other fraudulent means.” According to the Gujarat amendment Bill, it is necessary to prohibit “forcible conversion by marriage or by getting a person married or by assisting a person to get married,” and thus the amendment is being implemented in the law. In addition, the amendment defines “allurement” as promising a “better lifestyle, divine blessings, or otherwise.”

According to Bill’s provisions, “forcible conversion by marriage or by getting a person married” will result in a 3-5-year prison sentence and a fine of up to 2 lakh rupees. If the victim is a minor, a woman, a Dalit or a tribal, the offenders may face a prison sentence of 4-7 years and a fine of not less than 3 lakh rupees.

Conclusion 

The ordinance is mostly a piece of rhetoric. This is a mechanism used by the ruling party and politicians to create factions in society and pander to vote banks. As a result, we should proceed with caution and skepticism. More than whom it targets, the ordinance and accompanying rhetoric are emblematic of how the executive’s sheer brute force is aggressively and fundamentally changing the social fabric. Many Indians, understandably, have criticized this morally and constitutionally repugnant law. While I agree with the criticism, I am not convinced by the analysis of anti-interfaith marriage and anti-conversion sentiments. Most people believe that religious bigotry and hatred are at the root of the problem.

However, bigotry has always existed in Indian society. The current angst, in my opinion, is driven by social and economic change, and long-standing bigotry manifests itself through such laws. Indians should look up to the UP ordinance on social control. But it’s also important to take a breath and recognize that the upheaval is part of a larger, positive social and economic shift. It’s not just about hatred. 

REFERENCES

1. https://www.business-standard.com/about/what-is-love-jihad-law#collapse
2. https://indianexpress.com/article/explained/explained-uttar-pradeshs-love-jihad-law-and-why-it-could-be-implemented-vigorously-7066156/
3. https://www.livemint.com/opinion/online-views/love-jihad-laws-are-a-backlash-to-india-s-own-progress-11608564795399.html
4. https://www.theindiaforum.in/letters/unconstitutionality-anti-love-jihad-laws
5. https://thediplomat.com/2020/12/love-jihad-and-the-crafting-of-a-bigoted-law-in-india/

This article is authored by Riddhi Patni, student at Maharashtra National Law University, Aurangabad.