Recently, several states including Uttar Pradesh, Madhya Pradesh, and Haryana
have announced enacting a law prohibiting what it has been commonly referred- "Love
While a number of state governments are discussing to curb "love jihad", Madhya
Pradesh is tabling the first bill making offences cognizable, non-bailable and
punishable with "five years" imprisonment. Additionally, the District collector
would require to be notified a month before an interfaith marriage is
Lawyer and Managing Partner of OP Khaitan & Co Gautam Khaitan has called
appropriation of law to regulate interfaith marriages unconstitutional. "It is
the matter of two consenting adults and it is guaranteed by the Constitution of
India. Hence, any act done by the state to offend the constitutional guarantee
of individuality and basic freedom is unconstitutional," he said.
The concept of Love Jihad
first rose to public attention in 2008-09 when Hindu
Right groups claimed Muslim men allegedly converting Hindu women to Islam
feigning love. While there is no legal basis for the concept of Love Jihad
several states have decided to legislate interfaith to regulate inter-faith
"A few years back, the Supreme Court decriminalized Section 377 IPC in Navtej
Singh v. Union of India. Paradoxically, some of our states are now planning to
control woman's freedom through anti-love jihad laws. And this when the Union
Ministry of Home Affairs had on February 4, 2020 told the Lok Sabha that "there
was nothing defined as "love jihad" under current laws in the country. However,
the term is frequently used " he added.
Recently, a jewellery brand Tanishq pulled an advertisement featuring a baby
shower for an inter-faith couple after it was vociferously criticized by
Hindutva supporters on social media for allegedly promoting "love jihad". The
company said it had made the decision "keeping in mind... the well-being of our
employees, partners and store staff".
Earlier this year, in a written response, the minister quoted "Article 25 of the
Constitution provides for the freedom to profess, practice and propagate
religion subject to public order, morality, and health. Various courts have
upheld this view including Kerala High Court."
Mr Khaitan finds flaws in the concept as Firstly, there is no legal
sanction to political terms such as love jihad, Secondly, there can be no
legislation based on an extra-legal concept and thirdly, legislative
intervention, if any, in marriages involving consenting adults will be clearly
unconstitutional and to the detriment of adult citizens fundamental rights to
freedom of conscience and religion (Article 25 of the Constitution) as well as
their fundamental rights to privacy and liberty (Article 21).
In any case, till now domain of matrimony is occupied by separate laws governing
weddings that take place under religious traditions, and the Special Marriage
Act that enables a secular marriage and under the Special Marriage Act, secular
marriage includes inter-faith marriages
The reason behind such a proposal to enact a law prohibiting Love Jihad seems
- Many state Ministers spoke about marriages as if they were not a matter
of personal choice
- Investigation into marriages that purportedly raised such a suspicion
also failed to find any substance in the allegations.
- The immediate context for these leaders to curb inter-faith marriages is
a recent Allahabad High Court judgment, which frowned upon religious
conversion solely for the purpose of marriage. It declined to intervene on a
writ petition seeking police protection for a couple, noting that the bride
had converted from Islam to Hinduism solely for the purpose of marriage.
- It had found such an expedient conversion unacceptable, citing a similar
2014 verdict, which questioned the bonafides of conversions without change
of heart or any conviction in the tenets of the new religion.
Gautam Khaitan said that the court's ruling mean the conversion should not
become a device. It is useful as a principle that inter-faith couples retain
their religious beliefs separately and opt for marriage under the Special
Marriage Act. But, this principle cannot be used to derogate from personal
choice. Also, it should not be used to interfere in the individual freedom to
forge matrimonial alliances
The Allahabad High Court passed a two-page order dismissing the petition,
apparently on the basis that the conversion by the woman had taken place only
for the purpose of marriage. The Learned Single Judge of Allahabad High court
has relied on an earlier judgment of the same Court, titled Smt. Noor Jahan
Begum @ Anjali Mishra v. State of U.P. & Ors
dated 16th December 2014 and
while embarking on a wide-ranging discussion on the validity of the conversions,
and the subsequent marriages, under Islam, and concluded that the conversions by
the women in each case could not be termed "bona fide"
Although, the legality of her conversion was not the issue before the court.
While these observations by the Allahabad High Court have helped those who want
to stop Hindus converting for marriage, other high courts have gone even further
by actually suggesting that laws be enacted to deal with such conversions.
Gautam Khaitan said that although many states have declared their intention to
enact laws against "love jihad" but when the fear of physical harm has failed to
deter young women from marrying out of choice, it appears unlikely that the fear
of laws will do so. In any case, any action regulating marriages based on
baseless allegations will be violative of Article 14, Article 21, and Article 25
of Constitution of India. "If such an idea becomes a law it will be medieval in
nature, which might blur the image of a secular and free India.
Criminalizing interfaith marriages goes against the principle of letting
consenting adults make their own choices in life, marriage, faith, divorce,
livelihoods, etc. If such bills become law, that would hinder the basic freedom
of an individual and we will be heading down a slippery slope of a state looking
to restrict more and more of our democratic freedoms. Mr Khaitan, wonders how
can something which goes against the fundamental tenets of the country's
Constitution become a law?