This article is written by Pratap Alexander Muthalaly, a student of the Government Law College, Trivandrum. This case analyses the recently concluded Salamat Ansari judgment and what implications it could have for the Uttar Pradesh government’s ongoing war against what is commonly termed ‘Love Jihad’.

Introduction

Recently on November 11, 2020, in a notable judgement, the Allahabad High Court declared that a religious conversion, even when made solely for the reason of marriage, was for all purposes a valid exercise of personal liberties. The court further held that the freedom to live with a person of one’s choice is central to the fundamental right to life and personal liberty. This judgement is quite significant in the ongoing tussle between the UP government and those it regards as propagators of love jihad.

Backdrop

On September 29 2020, a bench led by Justice Mahesh Tripathi had dismissed a writ petition filed by a married couple seeking police protection, on the basis that the woman was a Hindu and had converted to Islam purely in order to get married. The judge cited a 2014 order passed by the same court, wherein a batch of writ petitions was dismissed in a similar case.

In the said case (Noor Jahan Begum case of 2014) the Allahabad High Court had dismissed a batch of writ petitions filed by a couple to seek protection as they had tied the knot after the woman converted from Hinduism to Islam and then performed the nikah or marriage ceremony. The court raised the question as to whether conversion of religion, without any requisite knowledge of the faith one is converting to (Islam in this case) or for that matter belief in the said religion could be considered valid. Especially if it was merely for the purpose of marriage [nikah].

At the time, the aforementioned judgement held a great deal of significance and even now has significant weight in the eyes of the UP government. The Uttar Pradesh Chief Minister Adityanath stated that the judgment which was delivered on November 1, was the basis for a new law that would effectively criminalise the practice commonly known as “love jihad.” In the aftermath of this ruling, other Bharatiya Janata Party-ruled states like Haryana, Madhya Pradesh, Karnataka and Assam announced that they were contending as to whether they too should implement similar laws.

Facts of the case

The petitioners, Salamat Ansari and Priyanka Kharwar had approached the High Court seeking to quash a First Information Report (FIR) that was filed against them. The FIR alleged that a number of offences had been committed, one notably under Section 366 of the Indian Penal Code, (the abduction of a woman with an intent to compel her to marry against her will). In response to this, the petitioners held that they were both adults completely competent by law to contract a marriage, and had, in fact, married in August 2019, as per Muslim rites and ceremonies, after Ms Kharwar had converted to Islam. They further added that they had been living together for more than a year and that their peace and happiness was being threatened by the prospects of prosecution.

In response to this, the state argued that Mr Ansari and Ms Kharwar’s partnership had no sanctity in the law because a conversion with a singular aim of getting married was illegitimate. The government utilized a set of two judgments that had been delivered by the Allahabad High Court, in particular, it took a great deal of inspiration from the views put across in Noor Jahan v. The State of U.P. (2014) to give their cause greater legitimacy. In the said case, the High Court had held that conversion by an individual to Islam was valid only when it was a result of a  “change of heart” and was purely on the basis of what they termed “honest conviction” that was built on the principles and religious dogma centred around the newly adopted faith(in this case Islam). Furthermore, the High Court had ruled that the burden to prove the validity of conversion was on the party professing the act. The state used this logic to similarly argue that in this case (Salamat Ansari), it was the responsibility of the woman to clearly show that her conversion was a direct result of her conscience and out of a strong and pious belief in her new faith.

Decision

The Division Bench rejected the theories and logic advanced by the state. It stated that the judgment in Noor Jahan was incorrect. According to the High Court, marriage is a matter of choice, and every adult woman has a fundamental right to choose her own partner. Furthermore, the court added that the Constitution was violated every time the state interfered in intimate and personal issues. In what could be considered a show of strength, the court stated that it did not see Priyanka Kharwar and Salamat Ansari as Hindu and Muslim, but instead as two grown-up individuals who out of their own free will and choice were living together peacefully and happily over a year. This was on the logic that, the courts and the constitutional courts, in particular, are enjoined to uphold the life and liberty of an individual guaranteed under Article 21 of the Constitution of India. The court further held that an individual’s right to live with a person of their choice irrespective of religion professed by them or their partner is for all purposes central to the right to life and personal liberty. 

That is, unnecessary interference in a personal relationship would constitute serious interference and encroachment into the right to freedom of choice of the two individuals. The judges also stated that they failed to understand that if the law permitted two persons even of the same sex to live together peacefully then by that same logic neither any individual nor a family nor even State can have any objection to the relationship of two major individuals who out of their own free will are living together. A decision reached by an individual who is a major, regarding the choice to live with an individual of their choice is for all purposes an individual right, furthermore, when this right is weakened or interfered with, it constitutes a breach of the fundamental right to life and personal liberty of the parties as it is inclusive of the right to freedom of choice, to choose a partner and right to live with dignity, all stated in Article 21 of the Indian Constitution.

Issues highlighted

Sanctity of Article 21 protected

This case once again brought Article 21 (no person shall be deprived of his life or personal liberty except according to a procedure established by law) to the fore. It firmly held that the right to choose a life partner is a key part of what constituted a right to life and liberty. The court also posed the question that, if the law permitted people to live together, including those of the same sex, why should there, then be an issue regarding two major individuals who were living together and had gotten married out of their own free will. By following the framework set in the Puttaswamy verdict, the High Court held that an individual’s ability to decide on crucial life choices like marriages for all purposes fell under the ambit of the right to privacy. This promise includes the preservation of the right to make personal decisions, on matters like a choice of partner, the sanctity of family life, marriage, procreation, the home, and sexual orientation.

Freedom of conscience (Article 25)

In Article 25, there are clear protections with regard to the choices that individuals make. This is in addition to the right to freely profess, practise and propagate one’s religion, it also makes it a point to offer guarantees to every person the freedom of conscience. Freedom of conscience is essentially the right to follow one’s own beliefs in matters pertaining to religion and morality. Conscience we can say is most definitely not something that the State can examine as a function of its sovereign authority. The ultimate purpose of this provision is of course to allow individuals the freedom to lead their lives as they please.

Love Jihad

This case has managed to make a dent or rather offer a small shred of resistance against the UP government’s ongoing campaign against ‘Love Jihad’. ‘Love Jihad’ according to Hindu fundamentalists is essentially a blanket term referring to forms of forced conversion by Muslim men of unsuspecting Hindu women. In recent years, this terminology has gained increased traction especially with regard to interfaith marriage. In fact, it is increasingly becoming difficult for women to convert to the religion of their male partners. This has been solidified by the recent ordinance cleared by the UP government. The law proposed and later cleared by the Uttar Pradesh government lists three different types of punishment. That is, those who are found guilty of conversion done via misrepresentation, force, undue influence, coercion, allurement or any other fraudulent means in opposition of the law are set to face a jail term that could range from 1-5 years, and a minimum fine of Rs 15,000.

On the other hand, if such conversion is found on a wider range, then those guilty would stand to face a jail term from 3 to 10 years, with a minimum fine of Rs 50,000. What will cause quite a bit of alarm to interfaith couples looking to get married or even continue their relationship smoothly, is that the recently suggested law termed as “Uttar Pradesh Vidhi Virudh Dharma Samparivartan Pratishedh Adhyadesh 2020” (prohibition of unlawful religious conversion), puts forward among a host of other things,that a marriage will be declared “shunya” or void if the only objective behind the same is to convert the girl to another religion. This essentially stands to override or at least strongly clash with the judgment that the Allahabad High Court passed.

Impact

In spite of the largely positive judgement of the court, the government of Uttar Pradesh has continued to push forward with its aforementioned ordinance which makes religious conversions have forcefully obtained an offence but that too declares any conversion found to be made solely for marriage void. In fact, the UP government has successfully managed to turn this into law without much hindrance It is believed that the State will most likely rely on a 1977 Supreme Court judgment in Rev. Stanislaus v. State of Madhya Pradesh to give legitimacy to the law in case any objections are raised against it.

In the said case, Reverend Stanislaus of Raipur challenged the Madhya Pradesh Dharma Swatantrya Act by refusing to register conversions. The Madhya Pradesh High Court upheld the Act by stating that freedom of religion must be guaranteed to all, even those who are converted by force, fraud, allurement or any other undue means. When the Orissa Freedom of Religion Act was challenged in the High Court, the decision swung in the opposite direction on the basis that the definition of “inducement” was too broad and that only the parliament had the power to enact such legislation and the state legislature did not have the power to make changes with regard to this matter. As a result, this was followed by a Supreme Court ruling in favour of both the Acts.

In spite of the progressive move by the Allahabad High Court, there seems to be a strong push back on the part of the government, who seem determined to pull through with the bill which the government sees as a priority (‘Uttar Pradesh Vidhi Virudh Dharma Samparivartan Pratishedh Adhyadesh’).

Conclusion

While the case of Salamat Ansari offers a ray of hope to interfaith couples who fear persecution, this triumph will matter for little if it is not backed up with future judgments in a similar vein. That is there is a need to build up sufficient legal precedent if there is any hope in displaying a concrete resistance against the Uttar Pradesh government’s curtailing of interfaith marriages and their continued occurrence. From the perspective of the UP government and others looking to follow suit, this is little more than a minor roadblock that can be cleared away if enough majority consensus is whipped up.

In fact, there has been little to no genuine resistance within the state when the ordinance was converted to a legitimate law. This is in spite of it (as mentioned earlier) violating various fundamental rights enshrined in the constitution. This is why it is crucial for dissidents of the anti-love jihad law that there be a positive inkling form the Supreme Court. That is, it is of utmost importance that the top court weighs in the favour of protestors. Otherwise, there is little they can do to stand in the way of the galvanised government in Uttar Pradesh and its new legislation.

References

• https://www.livelaw.in/pdf_upload/pdf_upload-384996.pdf
• https://www.nationalheraldindia.com/india/we-do-not-see-priyanka-salamat-as-hindu-muslim-allahabad-hc
• https://www.iasparliament.com/blogs/pdf/personal-choices-the-constitutions-endurance-salamat-ansari

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