Known for its ethnic diversity, India includes a population of 96.62 crores Hindus and 17.22 crore Muslims. When India became independent in 1947, it chose to be defined as a ‘Sovereign Socialist Secular Democratic Republic’ that guaranteed its citizens the right to live with dignity without discrimination and freedom of religion and belief.
The current major discourse on ‘Love Jihad’ first gained prominence after a marriage between two educated and consenting adults, Hadiya, who had embraced Islam in 2013 of her own free will, married a Muslim man, Shafin Jahan in 2016. After being kept under house arrest by her family, the Kerala High Court arbitrarily annulled the marriage of the couple and later the matter went before the Supreme Court of India. It dragged on needlessly, infringing the woman’s right to religious freedom and the right to choose one’s partner and dignity. Their marriage was recognised as valid in 2018.
Yet, this is not the first time when the Government has intervened in the lives of Muslims. Not only does the history around ‘love jihad’ stretch back to the early 20th century, but many of the other recent invasive attempts violating the rights of religious minorities also have a foundation in older anxieties and sentiments. This phase, particularly with the rise of political Hindutva began with an intervention into the kitchen, trying to regulate what not to eat or eat. Now, they have entered the sanctity of bedrooms by policing whom to marry. Certainly, Yogi Adityanath, Chief Minister of UP government kept his promise to make this country a Hindutva state and this is evident from an ordinance titled ‘The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance’ 2020’. This was passed on the 24th of November 2020 which subsequently came into force with the approval of the Governor on the same day.
The law penalises the accused with imprisonment from one to five years in general, three to five years for conversions involving women and SC/ST members, and adds a possible three to ten-year jail term for ‘mass conversion.’ As per the ordinance of Uttar Pradesh, a couple that intends to convert and marry has to give a 60-day notice to the district authorities.
Interestingly, the law is similar to other legislations like ‘The Uttarakhand Freedom of Religion Act’, 2018 and the ‘Himachal Pradesh Freedom of Religion Bill’, 2019 and ‘Madhya Pradesh Freedom of Religion Ordinance’, 2020. All of these abrogate the right of individuals to marry outside their respective religion and further declare inter-religious marriage to be void if such a marriage is solely for conversion. The Government of Gujarat is also mulling over such similar laws. This seems to be a conspiracy theory of the BJP ruling states and assumes that all conversions are illegally forced upon individuals.
Today, India is heading towards growing intolerance, radical nationalism, and jingoism. There have been several instances in India when goons allegedly on the payroll of some government intervene to stop the marriages of couples that include a Hindu wife and assault the Muslim or Christian grooms, further getting them arrested under the garb of forced conversions. Ever since the UP Prohibition of Unlawful Conversion of Religion Ordinance, 2020, came into effect last November, over 86 people have been booked, and 79 of them are Muslims. All these 79 are accused of similar offences — allegedly enticing a woman and forcing her to convert to Islam. Records show that the UP Police has registered 14 cases and made 51 arrests, of whom 49 are in jail. Out of these 14 cases, 13 involve Hindu women who were allegedly pressured to convert to Islam. Further investigation revealed that in only two cases is the complainant the concerned woman herself — in the remaining 12, the complainants were her relatives. In all these cases, the burden to prove innocence is fallen upon the person who has caused the conversion, wherein as a matter of fact in the criminal law, the burden of proof is on the prosecution to prove the guilt whereas the accused is treated innocent until proven guilty. Yet the Government of Uttar Pradesh continues to champion such discriminatory anti-conversion laws by arguing that the will of the majority is more important than the will of an individual.
Thus, this has inevitably become a mockery of the liberty given to us by the framers of the Constitution. Day by day, the state is acting like a sword hanging on the head, even though the state cannot abrogate a citizen’s right under Article 25 of the Constitution to marry somebody of his or her choice. Time and again, the freedom to marry has been safeguarded by the Hon’ble Supreme Court vide its various judgements, where the Court categorically held that if two adult individuals are living together, nobody is entitled to interfere in their peaceful life. The reliance is placed upon various precedents of apex court such as Lata Singh versus State of U.P. & Another, and in Asha Ranjan vs. State of Bihar (2017) 4 SCC 397, the Hon’ble Supreme Court said, “Para 61. “. ..the choice of a woman in choosing her partner in life is a legitimate constitutional right. It is founded on individual choice that is recognized in the Constitution under Article 19, and such a right is not expected to succumb to the concept of “class honour” or “group thinking.” Therefore, indeed, such acts are not only detrimental to the principle of religious freedom but take away the decisive agency from the woman who wishes to marry a man of her choice.
Recently, in Safiya Sultana Thru Husband Abhishek Kumar Pandey & Anr v State of U.P. Thru Secy. Home, Lko & Ors, the Allahabad High Court added a ray of hope in these dark times, by pointing out that such an act of government is against Articles 19 and 21 of the Constitution of India and violates the principle of the right to privacy examined in Puttaswamy judgement.
It is pertinent to mention that the above-stated laws are not only in violation of the fundamental rights guaranteed in the Indian Constitution but also against various rights guaranteed by the International Human Rights laws, such as Article 18 of the International Covenant on Economic, Social, and Culture and Article 18 of the United Nation Declaration on the Right to Freedom of Religion or Belief. Various international human rights commissions have vehemently criticized anti-conversion laws such as the ones being implemented in India. The US Commission on International Religious Freedom (USCIRF), pointed out that anti-conversion laws in India are being used to infringe the right of individuals to convert and also considers a favourable instrument of Hinduism over minority religions, presenting a significant challenge to Indian secularism.
Furthermore, this law exposes the failures of the administration and government. When the state fails to control the local goons and religious fanatics in interfering with the private lives of an individual, it opts to criminalise the act of the law-abiding citizens. This law cannot stand even for a day if the present International legal standard is complied with. For instance, The U.S Supreme Court in 388 U.S. 1 (1967) the case of Loving vs Virginia, with a unanimous 9-0 Judgment struck down the laws that banned inter-racial marriage. This selective enforcement of law by the Indian government to satisfy Hindutva majoritarian sentiment is only going to lead us all to a fool’s paradise. The minority communities will have no other option, but to fight tooth and nail the nefarious majoritarian agenda to protect themselves and their kin, to claim the right to practise their religion, right to marry, and right to live with dignity.