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Anti Love Jihad Law- (Review)

What Is Anti Love Jihad Law?

On Tuesday 24th November 2020, The Uttar Pradesh government passed an ordinance to deal with unlawful religious conversions. Most media reports have referred to it as an ordinance against love jihad but the UP government claims that it tackles forceful conversion and not just the alleged phenomenon of love jihad. An official note by the UP government, read as:
We have brought out an effective law to check conversion with some stringent punitive provisions against individuals and organisations if found to have indulged in conversion, through manifestation of using force deceit by way of luring into marriage or any other improper manner.

Marriage is one of the things mentioned here, it doesn't look like it is specifically directed at inter-faith marriages. This also does not apply to the Special Marriage Act. People of different faith who wish to marry each other can still follow due procedure under the Special Marriage Act.

Key features of the bill:

  • Marriage for the sheer purpose of converting a girl's religion will be declared null and void, with a punishment up to 10 years.
  • Forceful religious conversion, including through marriage, punishable with a jail term of 1-5 years with Rs 15,000 penalty. If the woman is a minor or belongs to Scheduled Caste or Scheduled Tribe, the jail term will be between 3-10 years and the penalty upto Rs 25,000.
  • Mass conversions punishable with jail term is of 3-10 years and fine of Rs. 50,000 on the organisations conducting it.
  • If someone wants to convert their religion after marriage, they will have to submit an application to the District Magistrate (DM) two months in advance.

Other Anti Conversion Laws In India

In 1967, Odisha was the first Indian state to pass a law against religious conversion the Freedom of Religion Act, which had similar provisions. Madhya Pradesh followed with its own anti-conversion law in 1968. While upholding the validity of the Freedom of Religion Acts of Madhya Pradesh and Odisha, the Supreme Court had held that the right to propagate a religion did not include the right to convert. However, those early laws did not bar conversions by marriage.

Arunachal Pradesh enacted a similar law in 1978.

In 2002, Tamil Nadu passed the Tamil Nadu Prohibition of Forcible Conversion Act, primarily directed at Christian missionaries.

Uttarakhand and Himachal Pradesh were the first states to introduce a clause regarding marriages. Uttarakhand's Freedom of Religion Act, 2018 prohibits conversion by misrepresentation, force, fraud, undue influence, coercion, allurement or marriage. Its punishment ranges from a jail term of one to five years and a fine, making it a non-bailable offence. Himachal Pradesh too has passed a similar law in 2019.

Both Uttarakhand and Himachal Pradesh added the word marriage to their acts Uttarakhand Freedom of Religion Act and Himachal Freedom of Religion Act and said that even if conversion is done for marriage, it has to be notified. Both the states it has sought to include alluring into marriage as an additional ground for declaring an instance of religious conversion as illegal, apart from the use of force, coercion, undue influence and deceit.

In Uttarakhand, the law empowered the parents and siblings of the individual being converted with the right to go and complain to the district magistrate if they feel a conversion is taking place without following the regular process.

Meanwhile, the BJP government in Madhya Pradesh is planning to introduce Dharma Swatantrya (Religious Freedom) Bill 2020 in the next session. The bill proposes rigorous imprisonment for the period of five years for luring a person through fraud and forcing marriage by religious conversion, making it non-bailable.

BJP in Assam, on the other hand, is planning to introduce the law after being re-elected to power in the 2021 Assam Assembly polls.

Legality Of Anti Love Jihad Law

This ordinance is based on the September 2020 judgement of Allahabad High Court, single judge bench case titled Priyanshi alias Km. Shamren and others Vs. State of U.P. and Another. In the petition, it was stated that the couple got married in July this year, but family members of the woman were interfering in their marital life. The couple had approached the court for police protection and requested the court to intervene and direct their families to stop interfering in their married life.

The court observed:
"The first petitioner has converted her religion on June 29, 2020 and just after one month, they have solemnised their marriage on July 31, 2020, which clearly reveals to this court that the said conversion has taken place only for the purpose of marriage."

The court referred to the case of Noor Jahan Begum in which the High Court in 2014 held that conversion just for the purpose of marriage was unacceptable.

The Court dismissed the writ petition of an interfaith marriage couple. While hearing the case, the single-judge bench of Justice Mahesh Chandra Tripathi observed that religious conversion just for the sake of marriage is illegal. The court made the remark while dismissing a plea by a newly married couple.

But however on November 11th 2020, Allahabad High Court has denounced the previous single-judge bench decision that religious conversions only for the sake of marriage are unacceptable, saying that decision was bad in law.

That judgment, the division bench of the Allahabad high court said, does not take into account the right to life and personal liberty of mature adults. The bench was referring to the 2014 decision in Noor Jahan Begum @ Anjali Mishra and Another vs. State of U.P. and Others, which was followed in Priyanshi @ Km. Shamren and others Vs. State of U.P. and Another in September 2020.

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, a bench of Justices Pankaj Naqvi and Vivek Agarwal said.

We fail to understand that if the law permits two persons even of the same sex to live together peacefully then neither any individual nor a family nor even the state can have an objection to the relationship of two major individuals who out of their own free will are living together, the judges also said.

The bench said:
We do not see Priyanka Kharwar and Salamat as Hindu and Muslim, rather as two grown-up individuals who out of their own free will and choice are living together peacefully and happily over a year. The Courts and the Constitutional Courts, in particular, are enjoined to uphold life and liberty of an individual guaranteed under Article 21 of the Constitution of India.

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.

The bench also noted that Priyanka's age was not under dispute, and she was an adult who could legally make her own decisions, including choosing to convert to Islam.
The Allahabad high court cited the Supreme Court's judgment in Shafin Jahan v. Asokan K.M (2018) (on the conversion and subsequent marriage of Hadiya), where it rejected the allegation that Hadiya had been forcefully converted to another religion for the purpose of marriage.

It held:
How Hadiya chooses to lead her life is entirely a matter of her choice. The court emphasised the principles of individual autonomy and dignity with the expectation that such an injustice shall not again be visited either on Hadiya or any other citizen.

A nine-judge bench of the Supreme Court upholding fundamental right to privacy had clearly said in 2017 that it is upon an individual on how she wants to exercise her freedom to make those personal choices. Whether one's partner would be of the same faith or not is a private decision. The way of life an individual wants to pursue after marriage is again a right of personal choice.

The Allahabad high court's decision is particularly significant because Uttar Pradesh chief minister Yogi Adityanath had used the court's earlier ruling to justify his proposed anti-'love jihad law

Flaws In Anti Love Jihad Law

Marriage is an extremely personal affair. The right to marry a person of one's choice or to choose one's partner is an aspect of constitutional liberty as well as privacy. The fundamental right to privacy protects an individual's ability to make choices and decisions that are intimate.

Troubling Key Details Of The Ordinance

Let's examine a few troubling key details of this ordinance:

  • The ONUS of proving that the conversion was NOT forcible, was not done by deceit, not done solely for marriage, will rest on the person who converted.
    What does this mean? Imagine an inter-faith couple Muslim boy and Hindu girl or Hindu boy and Muslim girl or any such couple. Now, thanks to the ordinance, anyone from family to anti-love-jihad vigilantes to the local administration itself can make a completely frivolous charge of forcible conversion and an over-enthusiastic police, trying to please its political bosses, can file a case and arrest the couple claiming forcible conversion and then sit back as the couple tried to prove that it wasn't forcible.
  • Anyone wanting to convert for the sake of marriage, would have to give a two-month advance notice to the local district magistrate or face a fine at least three years in jail.
    It just makes an inter-faith couple highly vulnerable for those two months, during which time anyone from family to panchayats to anti love-jihad goons could pressure, intimidate, even physically attack this inter-faith couple or traumatise them into giving in and ending their relationship.

Contrary to the expectation of the Supreme Court, the UP ordinance and the ambiguities in it can be used to violate an individual's ability to exercise her or his choice. Furthermore, the constitutional framework does not allow social approval as a basis for recognising personal decisions. Given the conservative nature of Indian society, inter-community marriages are discouraged, often even leading to honour killings. In such circumstances, when it is against family or societal approval, it becomes difficult for interfaith couples to marry even under the Special Marriage Act, 1954 a law for interfaith marriages.

By criminalising marriage for or after what is deemed to be 'unlawful' conversion in broad terms, the proposed UP law, in effect, would take away a choice from interfaith couples. It also would have a chilling effect on the exercise of freedom to love and marry outside one's community. The Supreme Court has struck down laws restricting individual freedoms on the ground that such a law is manifestly not only overboard and vague but also has a chilling effect on an individual's freedom of choice.

The proposed law is problematic on one more count. It deprives a woman of her agency and, in effect, controls female sexuality. The concept of love jihad is based on the premise that Hindu women are incapable of deciding for themselves and would easily become prey to forced conversions. Such a narrative reflects the caste system. B.R. Ambedkar had stated that patriarchal control over female sexuality was an essential component for the purpose of reinforcement of the caste system.

Laws restricting a woman's agency over her sexuality have again been invalidated by the Supreme Court, while holding: Choices in matters of sexuality are reflective of the human desire for expression In allowing individuals to make those choices in a consensual sphere, the Constitution acknowledges [an individual's] ability to make essential decisions.

At the same time, there are already various laws that invalidate marriage done under coercion. The proposed laws would only lead to harassment of inter-faith couples, which cannot be allowed in our constitutional democracy.

Moreover, if a couple wants to get married irrespective of their faith, it is the duty of the State to enable and facilitate them to exercise their freedom, and not restrict it. Instead of bringing an anti-love jihad law, the State must relax the vague procedure under the Special Marriage Act to facilitate and promote interfaith marriages.

Written By: Damini Singh Chauhan - The Law School, University of Jammu (10th Semester)
Email: [email protected]

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