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This article has been written by Hardik Gupta.

Introduction

Since the end of the last year, we have heard a word many times, either in the news channel, speeches of leaders or on social media, which is “LOVE JIHAD”. The term love jihad has its origin in 2009 and the practice is almost a century old. The idea according to activists is to target women of certain groups to marry them and change their religion into that of her husband’s. 

The topic gained highlight after the death of a 20-year-old college girl outside her college who was shot dead by her classmate, the matter according to some was of one-sided love and the family alleged the conspiracy of love jihad in that. Since, then many activist and groups demanded a law to stop this and thus the UP government promulgated an ordinance named the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, which prohibits the conversion just for the sake of marriage and vice versa, and makes offences under it cognizable and non-bailable, which invited criticism from many sects of society including former judges and bureaucrats of the country and had written to the government even to take back the black law. 

The same was followed by the state of Madhya Pradesh and 2 other BJP ruled states and the stand of the BJP governments of the law is clear by the statement of Narottam Mishra, Home Minister, Government of Madhya Pradesh, who says that we will oppose the love that leads to Jihad.

The law was brought to stop the religious conversions which take place in the country just for the sake of marriage in spite of the Special Marriage Act, 1954 which allows people of interfaith to marry each other without even harming or changing one’s religious interests, then why do these religious conversions in the name of marriage take place has come as an issue and which will be discussed in the chapters following. Also, the constitutional validity of the law, its background and the analysis of the provisions of the law will also be seen in this paper. 

Background of the laws

The love jihad laws which are recently a hot topic of debate is not a new issue as “Love Jihad” is not new in India. The term love jihad was first used by the BJP in 2009 for religious conversions taking place in the name of marriages where mostly the victim is Hindu and Sikh women. As per this concept of love jihad, a woman is induced to marry a Muslim man for whom she has to undergo conversion before or after the marriage is solemnized. In some cases of love jihad, a Hindu woman is targeted for conversion by different means.

Though the term Love Jihad is a decade old, the practice of conversion through marriages or deception is almost century-old where the various princely states mostly of Rajasthan like Udaipur, Kota, Raigarh, etc. had to make laws to protect the Hindu woman from British missionaries. Post independence too different states made different laws in this respect i.e., Orissa Freedom of Religion Act, 1967; Madhya Pradesh Freedom of Religion Act, 1968; Arunachal Pradesh Freedom of Religion Act, 1978; Gujarat Freedom of Religion Act, 2003; Himachal Pradesh Freedom of Religion Act, 2006; Uttarakhand Freedom of Religion Act, 2018.

In most cases of interfaith marriage where a Non-Muslim bridegroom marries a bride of different faith the marriages are solemnized in accordance with the Special Marriages Act, 1954 and a civil marriage takes place, but in cases of a Muslim bridegroom and Non-Muslim bride the Non-Muslim woman converts to marry the Muslim Man, thus, it raises serious questions about the intend of Muslim man because there are very fewer cases heard of Muslim man converting himself to marry a woman of a different religion. 

The reason for this lies in the Quran which prohibits the marriage of a Muslim woman to any non-Muslim but allows a Muslim man to even marry a non-Muslim who is mentioned in the people’s book they are Christian and Jews, and if the man has to marry a person out of this scope the other person shall first convert into Islam to make it a valid marriage or else such marriage will be termed void. Such marriages where the other person converts to Islam to marry a Muslim man can be thus termed a religious marriage.  

It is because of this provision that the uproar has been there against conversions in the name of marriage as such conversions are not taking place by heart but by compulsion or in condition where once love for the other person is more than the love for religion and even in such cases if the woman does not wish to convert to other religion, she does convert to marry the other person.

The right to marry a person of own choice is a fundamental choice under Article 21, but the Right to practice and profess one’s own religion is too a fundamental right under Article 25 of the Constitution of India which also needs to be protected these right various states are promulgating for Prohibition of Unlawful Religious Conversion, which is also termed as love jihad laws by the media.

The recent uproar on this matter began in September 2020 where a 20-year girl was killed outside her college by one of his classmates who tried to drag her in his car and when she resisted it she was shot dead by him in the broad daylight, The accused allegedly forced their daughter to reject her Hindu religion, according to the family. On Tuesday, residents and right-wing supporters protested the incident, demanding the death penalty for the accused. It was a case of ‘love jihad,’ according to them. This news spread like a fire in the nation and soon the matter was politicized and demand for anti-love jihad laws was raised which lead to mulling laws designed to prevent “forcible conversions” through fraud, misrepresentation, undue influence and marriage, commonly referred to as “love jihad” laws.

The law

The law made in the above-mentioned states is almost of similar nature and even many of the sections are similar, thus we will have a look at them collectively with emphasis on The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, which was the first ordinance last year to be promulgated against love jihad followed by MP.

The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020:

  1. The ordinance contains 14 sections which include definitions, crime, punishment and some procedures. 
  2. The law prohibits religious conversion not only on the basis of marriage but also the conversion which is done by fraud, misrepresentation or undue influence. The most opposition has been of the inclusion as marriages but the act clearly implies that any marriage which is done for the sole purpose of conversion is a void marriage and conversion for marrying makes such marriage void because this is included to save a woman who either in love or by forcefully has to undergo conversion without any love or attraction towards that religion for only the reason of marrying someone of other religion. 
  3. Any person related by blood to such a person can launch an FIR against the converter and the burden of proof to prove such conversion as legal would like on the accused, which gives an overhand to the police and prosecution and the chances of the accused to be found guilty increases. This certain section is prone to be misused by the police as they will get a chance to harass the common man either by bribery or for a personal grudge. In other words “guilty till proven innocent”, argues a plea filed in the Supreme Court against these laws.

Tikaram, a Sharif Nagar, Bareilly resident, filed a complaint against Uwais Ahmed, a 21-year-old neighbour, for allegedly forcibly converting his daughter’s religion. Ahmed was arrested four days later as a result of Tikaram’s complaint. Rafiq and Munni, the accused’ s father and mother, said the girl had run away on her own accord in 2019 and that the police had already filed a closure report after she was identified. In the previous case, the girl stated in writing that she had no relationship with Ahmed, but under the new rule, the wrong case was filed. Simultaneously, the girl’s family remains silent on the subject. 

  1. The law equally applies to all religions and has no biases towards any religion specifically. 
  2. The law puts a bar on any type of marriage which is for the “sole purpose” of religious conversion.

The law is seen to gain public popularity as the cases have started to be filed under this act even before the act got notified people approached the police station for filing the complaint as if they were just waiting for this ordinance to get promulgated. 

On November 27, a woman in Izatnagar filed a complaint against a man named Tahir Hussain (21), whom she described as her husband. Hussain married her solely to convert her to Islam, as alleged by the woman. The woman decided to file a lawsuit under the current ordinance in her report to the police. Tahir Hussain was later arrested, but the ordinance was not implemented because the law was notified the day after she lodged the complaint.

  1. All the crimes stated under this ordinance are cognizable and non-bailable and attract a penalty of a minimum of 1year imprisonment which may extend to 5 years for committing a crime stated under this Act along with a minimum fine of 15000 rupees if the victim is a minor or a member of SC/ST community the punishment range increases to minimum 2 years to max 10 years along with a fine of 25000 rupees and if the crime involves mass conversion than the mass converter is liable to a minimum imprisonment of 3years which may extend up to 10 years along with a minimum fine of 50,000 rupees. 
  2. For the victim of such crime, the court may under section 5(2) of the ordinance grant compensation extending to 5lakh rupees along with the penalty received.
  3. Individuals wishing to convert and religious converters undertaking such conversions are required by the Ordinance to request an advance declaration of the intended religious conversion to the District Magistrate (DM).

The declarations must be given by a notice of:

  1. Individuals 60 days before the task.
  2. By the convertor one month prior to conversion. 

On receiving both the declarations, the District Magistrate has to conduct a police inquiry into the intention, purpose and cause of the proposed conversion.

Aftermath

After the promulgation of the Act, many people called it an encroachment to the fundamental right to marry any person of choice and the right to freedom of religion of one’s own choice. While the petitions are pending against this law there are some cases by which we can decide whether this law is constitutionally valid or not. 

The act specifically doesn’t mention any specific religion or community and is applicable to all irrespective of their religion thus the question of  equality does not arise in this case: 

  • Where the question of freedom of religion arises, the Supreme Court in the Hadiya case held that a person’s right to choose a religion and marry is an intrinsic part of her meaningful existence. Neither the State nor “patriarchal supremacy” can interfere in her decision.
  • The Allahabad high court has said that the right to live with a person of one’s own choice is intrinsic to the right to life and personal liberty irrespective of religion. Interference in a personal relationship would constitute a serious encroachment into the right to freedom of choice of the two individuals.
  • The freedom to choose a spouse, regardless of race, creed, or religion, is enshrined in Article 21 of the Indian Constitution, which is an intrinsic part of the Fundamental Right to Life and Personal Liberty (Salamat Ansari v State of UP).
  • Even Justice A.P. Shah, former Chairman of law commission of India criticised the law to be one infringing fundamental rights and that the police is given immense power under the law as the offence is cognizable, non-bailable and even the burden of proof lies on the accused, which defeats the principles of the criminal justice system in India. he even added that the law gives no punishment for reconverting and If a person is forced to reconvert, then there is no culpable offence,” he pointed out.

Salamat Ansari and Ors vs. State of Uttar Pradesh, 2020

The Allahabad High Court had overruled its own earlier judgment of a single-judge which said that conversion was valid only when predicated on a change of heart or honest conviction and now held that Religious conversions, particularly though made purely for the sake of marriage, were a legitimate exercising of a person’s liberty, and interfering in a personal partnership would be a significant infringement on two people’s right to freedom of preference.

The court, according to the ruling, does not see the couple as Hindu and Muslim, but rather as two mature people who have been living together and happily for a year out of their own free will and decision.

The High Court stated that marriage is a personal decision, and that every adult woman has the constitutional right to choose her own husband.

Special Marriage Act, 1954

The Special Marriage Act, 1954 now only seems to be a ray of hope for interfaith couples for marriage, which was before a problem for them but now as there is a stricter law in place they have no other option for them. Previously the interfaith couples who eloped from their families to marry had two options either to marry as per the SMA, 1954 or to convert the other partner or himself and marry as per personal law. 

The couples saw the latter one as easier and safer than the former because the former has such provisions which would risk the chances of their marriage. Section 6(2) guides a mandatory publication of notice of marriage by the marriage officer for inviting objections to marriage within 30 days of the notice published, which increased the risk of information reaching the family who would object and make every such possible effort to stop the marriage. Sometimes such a type of publication also leads to harassment from local goons and society. 

Thus, many PILs have been filed to strike down this section from the law and in a recent judgment, the CJI remarked that the section is important so that “the parents know where their children are” and in a similar petition in Delhi H.C. the centre in reply to the petition said that “the intention behind the Act is to keep adequate safeguards to the interest of various parties involved,” and that if a 30-day notice as required under Section 7 is not given, it may not be possible to verify the credibility of the persons seeking to solemnize a marriage, but the High Court had a modernized view in this matter and made the section 6 and 7 of the act as directory and not compulsory and should depend on the decision of the couple. Thus, the court’s judgment made the marriages for interfaith couples easier which will also help indirectly the religious conversions which are done for marriage. The judgment was seen by many as a progressive judgment.

Conclusion

The laws made for the prohibition of unlawful conversions are not new in India, there are many times in the past where such laws were made to prevent conversion by coercion and now even marriage has been added to the list. The law came to protect the woman who has to convert to other religion for marrying their loved one but the act is seen by many as wrongful conversion as converting one’s religion just for the sake of marriage is not apt, thus a law was brought for this effect but the law encroaches the fundamental right to privacy and choice of the couples by such provisions for nullifying such a marriage, as marriage is a personal and civil matter but the provisions of the law make it criminal and is made even harsher by making the offence cognizable and treating the accused guilty until proven guilty, which creates enough scope for its misuse by local authorities, family and local activists. 

It has also come to notice that one of the other reason for conversion for marriages is Section 6 of the Special Marriages Act which mandates publication of notice of such marriage by the marriage officer to invite objection to the marriages if any within 30 days and thus the couple undergoes conversion to avoid any situation arising out of such publication. Thus, to protect the couple’s fundamental rights and avoiding conversion arising out of marriages, the following suggestions can be considered:

  1. Amending section of Special Marriages Act, 1954 and striking down the mandatory publication of marriage notice before the marriage and considering providing a provisional marriage certificate after fulfilling the need of a valid marriage, Section 11 and 12 of the Act.
  2. Following that, the marriage officer can continue in accordance with Sections 5 to 14 of the SMA by publishing notices, hearing objections, and making decisions.
  3. If no objections are received, the marriage certificate will be provided 30 days after the notice is published and can be picked up by the pair on any working day.
  4.  Any objection should be dealt with by the Registrar in accordance with the SMA’s provisions. Any lawyer may be allowed to represent the couple and witnesses. And where it is absolutely appropriate and justified should the couple and witnesses be required to appear in person.
  5. If the objection is justified then the provisional certificate and the marriage can be nullified with immediate effect. 
  6. Making crime under the new as non-cognizable to avoid harassment of couples and the burden of proof shall lie on the prosecution, to allow a level playing field for both the parties.  

After making changes to the Special marriages act and making it appropriate for the modern time, will by itself decrease the cases of conversion taking place for marriages and will even maintain the religious interests of both partners in a marriage.

References

  1. Constitution of India, 1950
  2. Special Marriages Act, 1954
  3. UP Prohibition of Unlawful Conversion of Religion Ordinance, 2020
  4. Madhya Pradesh Freedom of Religion Bill, 2020
  5. Abhishek Mishra, Families of accused claim misuse of UP’s anti-love jihad law India Today (2020), https://www.indiatoday.in/cities/lucknow/story/up-anti-love-jihad-law-misuse-1747269-2020-12-07 (last visited Mar 12, 2021).
  6. Amit Jaiswal, Special Marriage Act and anti-conversion Ordinance: Cause and effect relationship, judgment by Allahabad High Court, and a few suggestions Bar and Bench – Indian Legal news (2021), https://www.barandbench.com/columns/special-marriage-act-and-anti-conversion-ordinance-cause-and-effect-relationship.
  7. Aneesha Mathur, Tools for misuse: Pleas filed in Supreme Court against UP govt’s ‘love jihad’ law India Today (2020), https://www.indiatoday.in/india/story/tools-for-misuse-pleas-filed-in-supreme-court-against-up-govt-s-love-jihad-law-1746405-2020-12-03 (last visited Mar 12, 2021).
  8. Girl shot dead outside college in Faridabad, ‘love jihad’ alleged, The New Indian Express (2020), https://www.newindianexpress.com/nation/2020/oct/28/girl-shot-dead-outside-college-in-faridabad-love-jihad-alleged-2216001.html (last visited Mar 12, 2021).
  9. Interfaith marriage,En.wikipedia.org,https://en.wikipedia.org/wiki/Interfaith_marriage#Islam.
  10. Noor Jahan v. State of U.P. Writ C. NO. 57068 of 2014
  11. Safiya Sultana v. State of Uttar Pradesh 2021 SCC OnLine All 19
  12. Salamat Ansari and Ors vs State of Uttar Pradesh W.P No. 11367 of 2020
  13. Scroll Staff, MP home minister says ‘will oppose love that leads to jihad’ as Assembly passes anti-conversion Bill Scroll.in (2020), https://scroll.in/latest/988983/mp-home-minister-says-will-oppose-love-that-leads-to-jihad-as-assembly-passes-anti-conversion-bill (last visited Mar 12, 2021).
  14. Shafin Jahan v. Ashokan K.M. SLP (Crl.) 5777/2017
  15. Sreenivasan Jain, UP Anti-Conversion Law Must Be Struck Down Immediately: Ex-Judge AP Shah NDTV.com (2020), https://www.ndtv.com/india-news/up-love-jihad-law-must-be-struck-down-immediately-justice-ap-shah-2340505.
  16. Sunday Read, Jihad in the time of love Mumbai Mirror (2014), https://mumbaimirror.indiatimes.com/others/sunday-read/Jihad-in-the-time-of-love/articleshow/41290908.cms.

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