U.P. ordinance on “love jehad” criminalises conversion

The U.P. ordinance on “love jehad” not only places tremendous hurdles in the way of inter-religious marriages but also criminalises conversion even if it is of a person’s own free will.

The Supreme Court of India upheld, in the Rev. Stainislaus case of 1977, the laws criminalising conversion by force, fraud and allurement. Although this targets forcible conversion, the laws can be misused.

The issue of love jehad has once again raised its ugly head close on the heels of a judgment of the Allahabad High Court in the Priyanshi case. In this case, a young couple, who had married after the girl, a Muslim, converted to Hinduism, approached the court for help and protection from harassment and intimidation from the girl’s parents. The court held that since the conversion was only for the purpose of marriage, there was no reason to interfere on behalf of the couple. In other words, the court refused to protect the couple and did not even consider whether two adults living together of their own free will had the right to be protected from possible criminal action by their parents. This obviously erroneous judgment was subsequently overturned by a landmark judgment of a larger bench of the Allahabad High Court in Salamat Ansari and Others vs State of U.P .

However, Uttar Pradesh Chief Minister Yogi Adityanath, taking advantage of the Priyanshi judgment, once again raised the bogey of love jehad and threatened to bring in a law to stop conversions for the sake of marriage. Recently, the U.P. Cabinet approved the Unlawful Religious Conversion (Prohibition) Ordinance, 2020, which has also been assented to by the Governor. The main features of this draconian and ill-drafted law, as reported, are:

(i) It prohibits religious conversions not only through false representation, coercive measures, (undue) influence, oppressive measures, incentives, or through fraudulent tactics but also through marriage.

(ii) All the conversions have been made into non-bailable, cognisable offences, and the penalty for this is imprisonment up to five years with a minimum fine of Rs.15,000.

(iii) A particularly draconian provision shifts the onus of proving that the conversion was not coercive, and so on, on the convertee and the converter.

(iv) The punishment for converting minor girls and Scheduled Caste and Scheduled Tribes persons is a minimum of three years’ rigorous imprisonment to a maximum of 10 years’ rigorous imprisonment along with a minimum fine of Rs.25,000.

(v) A similar imprisonment is provided for mass conversion with a fine of a minimum amount of Rs.50,000.

(vi) It is further stated that if the conversion of a woman is solely for the purpose of marriage, the marriage will be declared null and void.

(vii) Apart from the above, it has been made mandatory to give the magistrate two months’ notice prior to the date of conversion by the person who wants to be converted. Any violation of this will attract punishment of a minimum of six months up to three years’ imprisonment with a minimum fine of Rs.10,000.

Communal ordinance

This ordinance is communal and, like the triple talaq law, is meant as an attack on Muslims. However, for the first time, it seeks to punish both the person who is converting and the person who helps in the conversion. Senior Communist Party of India (Marxist) leader and Politburo member Brinda Karat pointed out that it closely resembles the Nuremberg laws which criminalised marriage and sexual relations between Germans and Jews. She also pointed out that it was mostly girls in our patriarchal society who got converted in order to get married. The ordinance not only seeks to punish Muslim men but for the first time, also seeks to punish women for conversion, including for the purpose of marriage. In that sense, too, it is anti-women.

The ordinance is clearly unconstitutional, for it introduces a new clause which states that if a person converts for the sake of marriage, s/he will be imprisoned. It does not make a distinction between a forced conversion and conversion by a person of his or her own free will. The onus of proving that the person has not converted for the sake of marriage has also been shifted on the person who has converted, although criminal law normally stipulates that the onus of proving a case lies on the state. The proposed law is clearly against the fundamental right to adopt any religion as enshrined in our Constitution. Who is the state to decide whether the reasons anyone might have to convert are good, bad or ugly? Further, notice of the conversion must be given to a magistrate two months prior to a conversion, or else a convertee can be punished with imprisonment and a minimum fine.

What is particularly brutal is the punishment that the convertee will have to undergo. Earlier, some factions of the Hindu right had alleged that young Muslim men who were in a consensual relationship with Hindu women were a part of a conspiracy to convert Hindu girls to Islam. In the words of advocate Ram Puniyani: “The ‘love jehad’ propaganda is a double-edged weapon. By stating that Muslim youth are being trained to lure Hindu girls, on the one hand they demonise Muslims and on the other, they tighten their control of the lives of girls and women. In this propaganda, Hindu women are projected as gullible, easy to be lured and incapable of deciding for themselves. In a way, the communal agenda’s twin goals are achieved here. Communal politics wants to marginalise the religious minorities at the surface level and at the deeper societal level it aims to restrict the rights and freedom of women”. Hindu women, who had earlier been portrayed as vulnerable and liable to be entrapped by Muslim men, are now directly attacked by the ordinance. This shows that the extreme Hindu right is happy to attack women when it suits them and if they cross the laxmanrekha .

This will have disastrous consequences for women. Not only will the woman’s marriage get declared null and void, depriving her of the rights that accrue out of a legally binding marriage, but she will also be left without the support of any person after this declaration and consequent imprisonment. This is the harshest and strictest punishment that can be levelled against her for no fault of hers and for daring to fall in love.

Anti-conversion law

Apart from U.P., the State governments of Haryana, Madhya Pradesh and Karnataka have announced their intention to bring in a law to curb what they call “love jehad”. The Madhya Pradesh Chief Minister has said that non-bailable charges will be applicable in cases of “love jehad” in Madhya Pradesh. This is in spite of the fact that repeated investigations by the police in Kerala and the National Investigating Agency (NIA) in the Hadiya case of 2018 found that the allegations of love jehad were false. In Hadiya’s case, the NIA closed the investigation after it found no evidence of intimidation. The NIA also stated that conversion was not a crime in Kerala and helping men and women to convert was also within the ambit of the Constitution. Perhaps that is why the very act of conversion has been criminalised. In Rev Stanislaus vs State of M.P. and Others, 1977, the Supreme Court upheld the laws criminalising conversion by force, fraud and allurement. Although this targets forcible conversion, the laws can be misused. However, none of these laws targeted conversion per se .

Sarla Mudgal case

The Sarla Mudgal case of 1995 is also often cited as supporting these anti-conversion laws and cases. However, the issue in Sarla Mudgal was completely different. The case concerned the right of the Hindu husband to convert in order to marry again. The court held that while the husband had the right to convert, he had no right to marry again until he divorced his first wife under the Hindu Marriage Act, 1955, and would be subject to the law against bigamy under the Indian Penal Code. The Supreme Court reviewed the Sarla Mudgal judgment in the Lily Thomas case in 2000 and upheld it.

In Noor Jehan Begum@Anjali Mishra and Another vs State of U.P and Others (2014), where the petitioners had converted to Islam before marriage and sought protection from the Allahabad High Court, the court declined to entertain the writs on the ground that the petitioners had converted for the purpose of marriage and moreover, one of the petitioners did not know the basics of Islam.

Some recent positive judgments pronounced by the Allahabad High Court point us in the right direction. One was in Sultana Mirza and Another vsState of U.P. wherein a same sex couple had approached the court seeking protection as they had been in a live-in relationship for a couple of years and faced harassment and threats to their life from family members and others. The court, after quoting the Supreme Court in Navtej Singh Johar and relying on the principle of constitutional morality, said that courts were under a duty to protect the couple and directed the Superintendent of Police to extend suitable protection to them.

Right to freedom of choice

Thereafter in the recent Salamat Ansari case, the Allahabad High Court overturned the single-judge decision in the Priyanshi case. The court quashed criminal proceedings against the man, stating that the couple who had approached them were adults and were living together voluntarily and no case under Sections 252 and 506 of IPC had been made out. The court stated that the right to live with a person of one’s own choice was intrinsic to a person’s liberty. It further opined that interference in a personal relationship would constitute a serious encroachment into the right to freedom of choice of the two individuals. It stated that neither any individual nor a family nor the state can have any opinion on the relationship of two major individuals who of their free will are living together. The Allahabad High Court relied upon the Supreme Court’s decision in Shafin Jahan vs Ashokan K.M. , in which the court held that “no fetters could be placed on her choice on where to reside or about the person with whom she could stay”. The judges of the Supreme Court quoted an earlier judgment in Lata Singh vs State of U.P. , where the court had held that even if the parents of the boy and girl did not approve of an inter-caste or inter-religious marriage, they could not issue threats or instigate acts of violence, or harass a person in such an inter-caste or inter-religious marriage. The court had directed administrative and police authorities throughout the country to ensure the couple were not subjected to any harassment and that criminal proceedings be taken against such action.

The Allahabad High Court also quoted the Supreme Court judgment in the Shakti Vahini case that the choice of an individual is an inextricable part of human dignity and the choice of two adults to marry on their own volition has to be thus considered a fundamental right and any infringement of the said right is a constitutional violation. The Allahabad High Court also quoted the Supreme Court judgment in Nandakumar vs State of Kerala, 2018, in which the court held that the High Court’s approach of looking into the validity of the marriage was wrong, as the petitioner, who was a major, had the right to marry whoever she wanted and move wherever she wanted.

The court also held that the right to choose a partner is a fundamental right as had been decided by the Supreme Court in the Puttaswamy case in 2017. In the Puttaswamy case, the Supreme Court observed that “privacy enables the individual to retain the autonomy of his body and mind and entitles an individual to mental and physical integrity and to freedom of thought and self-determination”. It further stated: “The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated over matters which can be kept private.”

The Allahabad High Court pointed out that the judgments in the Priyanshi and Noor Jahan cases, in which the court refused to protect the young couples who were being hounded by their family because the women had converted, did not deal with the issue of life and liberty of two adults in choosing a partner or their right to freedom of choice as to whom they would like to live with, and overturned the two judgments.

Over the past few years, several cases of killings and crimes in the name of honour have taken place, and no government, including the present one, has taken steps to address this. On the contrary, the present anti-conversion laws in Bharatiya Janata Party-ruled States obviously intend to place even greater hurdles in the way of inter-religious marriage and take revenge on couples who convert by criminalising their act. The only secular law of marriage, the Special Marriage Act, also places several obstacles in the way of couples who want to register their marriage. It mandates that the couple give a month’s notice before their intended marriage. This notice is then displayed in the marriage office and objections invited. Couples have complained that notices have also been uploaded and sometimes sent to the parents. Young couples who have eloped have faced disastrous consequences as a result of this. Despite several recommendations, both from women’s groups and the Law Commission in two of its reports, the section mandating a month’s notice has not been deleted.

Kirti Singh is an advocate, former part-time memberof the Law Commission of India and a women’s rights activist.