Updated: Feb 2, 2021
As, we are familiar with an incident which was happened in Uttar Pradesh some days before, where the police arrived and allegedly beaten up a Muslim man and stopped his marriage because the police got some false and unauthentic information that a Muslim man and a Hindu girl was marrying to each other after the conversion of religion of a Dalit girl from Hindu to Muslim. This is not only the single incident like this which occurred; as there as many incidents which occurs in this country where Muslim men have been continuously beaten up by the police on having false information, rumours and now there is a thinking in everyone’s mind that marrying of a Hindu girl with a Muslim man should be avoidable. Hence, there occurs exploitation of a particular religious community in India and even political parties have been subjecting various Inter- Faith issues and even political leaders are taking benefits in the situation of proclamation of Love Jihad.
So, this paper aims to explain without any favour, without any bias we will come to the point whether it should be passed or not as no final verdict have been passed by the Supreme Court and what is the way forward? We will discuss about the provisions of the UP and MP ordinances on Love jihad and arguments against and in favour of Love jihad so that each individual can think at his own whether it should be good to be amended or not?
Meaning of Love jihad:
There arises a question in everyone’s mind that what is this term Love Jihad mean?
So, basically there are two viewpoints about Love Jihad:
Love Jihad is a conspiracy conducted by a Muslim man to convert a Hindu woman under the pretext of love and marriage.
Those who are in favour of this view about Love Jihad; they believe that conversion for marriage or marriage for conversion both should be declared illegal and outlawed. It means that if conversion is done before marriage and after marriage, it should be banned and illegal. And we also know that some states like Uttar Pradesh, Madhya Pradesh have done this conversion illegal by promulgating ordinances on Love Jihad.
There is no Love and Jihad because love is pure and it is free of all bias, of all judgement of all those bad things in life as this is the second viewpoint and those who are in favour of this view says that there is no love and jihad.
We will discuss and understand these two viewpoints but before that we have to know that from where this phrase Love Jihad is originated?
Origin of this phrase Love jihad:
In the year 1924, an incident took place in Kanpur where a Muslim Bureaucrat was accused of abducting and seducing a woman of Hindu religion and then he forcefully converting her from Hindu to Muslim religion. Because of some developments in Karnataka and Kerala, this phrase comes forward in the attention of public in the year 2009.
For example: There was a case which comes forward before the Karnataka High Court that a 18 year old Hindu girl married to a 24 year old Muslim boy in Bengaluru. The father of the girl filed a case against the Muslim boy that he forces her to marriage in pretext of love. To investigate this whole matter, Karnataka High Court ordered the Karnataka Police C.I.D. to investigate the allegations which the father of that girl was alleging as he was saying that this is an example of Love Jihad where a Muslim boy converts his daughter under the pretext of love. When Karnataka police department had conducted the whole investigation and the police comes to the point that this is an adult consensual relationship between two of them & there is no such thing as Love Jihad. Ultimately, the court rests the decision on the girl and asked the girl you are free to choose your own life. The girl decided and choose to go with her husband. And this is how the case solved. There is no such thing like Love Jihad as the inter religious marriage was consensual.
But when the Karnataka police conducted investigation, they found and looked at more than 100 inter religious marriages that were happened in Karnataka. To find out is there any such thing like Love Jihad. The Karnataka Police submitted CID report to the Karnataka High Court on 31st December, 2009 and stated that “there is no such organised attempt by any group of individuals to entice girls/women belonging to Hindu or Christian religions to marry Muslim boys with the aim of converting them to Islam”.
So, there is no such thing like Love Jihad but those who believe that and in favour of the viewpoint that Love Jihad is there and is a conspiracy conducted by a Muslim man to convert a Hindu woman under the pretext of love and marriage and if you believe that there is no such thing like Love Jihad, they have to turn their eyes on the newspapers in which there is a daily story labelled in it where the in-laws and even the husband pressurizing the women to marry, to convert her into their own Islamic religion. It is true that Love Jihad is in reality and to believe that it is, see newspapers, hear radios, news and you will see daily new story of Love Jihad in which a girl or women was forced under the pretext of love, marriage to convert her religion. And who are against it, they say that love jihad does not exist as there is no evidence of Love Jihad although nobody has seen it but yet people believe that Love Jihad exist.
The government of India was asked by the Parliament to tell us how many incidents of Love Jihad have took place. The government said that there is no such thing like love jihad exists. The national commission for women, the chairman meets the governor of Maharashtra discussed about the cases of Love Jihad and then an RTI application was file and the chairman was asked about how many instances of Love Jihad have occurred and they replied to an RTI application that they will not deal with such data. So, there is no such evidence that Love Jihad exists.
So, there arises a question either it exists or not?
To understand we have to look upon the Fundamental Rights under the Constitution of India and the views of judiciary on these inter religious marriages.
In our Constitution of India, we have Article 21 “Right to Life & Personal Liberty”. You have the right to life and personal liberty, within Article 21 we also have the right to live with dignity, and right to privacy. And subject to public order, morality and health and to the other provisions of this part, under Article 25 all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion without violating public order. Forced conversions, were violating public order and that’s why two states Orissa and Madhya Pradesh passed Anti-conversion laws. These laws were challenged in the Supreme Court in the year 1977 when Supreme Court gave its verdict in this
Rev. Stainislaus vs State of Madhya Pradesh & Ors- January 1977
The father said before the Supreme Court that he has a fundamental right under Article 25 of Indian Constitution to propagate his religion and that also means that it gives right to convert others into his religion. Then why am I propagating my religion? I am propagating because I want this religion to reach to everybody so that everybody converts and embraces this religion. So, if I have a right to propagate my religion then also give me the right to convert others into my religion. Sc said no this is not your fundamental right to convert other ones into your own religion. Conversion can be valid only if it without any threat, allurement, coercion. This is not come under the ambit of Article 25. This judgement is very important and form as a base of Love Jihad laws of UP and MP.
Another case law: Lily Thomas case (2000)
In this case, there was a Hindu man. He marries to a Hindu wife. Ultimately, he divorces his wife and then he converts his religion so he will able to marry another woman as it indicates that there is no change in his conscience, belief but just for getting marriage he is converting his religion. Supreme Court said this is wrong and not valid. This judgement forms a base for this law too.
Hadiya case (2017)
In this case there was a Hindu girl who converts herself into the Islamic religion and then she married a Muslim boy. The father of the Hindu girl filed a case in the Kerala High Court and said this is a classic example of Love Jihad. My daughter has been seduced, allured into converting Islam. So there exists a conspiracy, where there are elements who trying to convert Indians so that they can go and fight for Islamic states. The Kerala High Court said that the marriage between the two is invalid. Matter went to the supreme court and Supreme Court said that if you have Article 21, it includes the fundamental right to marry. Hadiya was allowed to go back to her husband as right to marry is a fundamental right under constitution.
But recently few months ago in 2020 a Single Judge Bench of Allahabad High Court said that the “Conversion just for the purpose of marriage is unacceptable” and this form the basis for Love Jihad law passed by Uttar Pradesh Governor. When the government was asked why there is need to bring this ordinance. Look at the order of Allahabad High Court and that’s why there is a need to bring it. But few months later a division bench of same Allahabad High Court said that we don’t see two people belong to two different religions and if they want to embrace a common life we don’t consider them belonging to different religions. We see them as Indians as they have the Fundamental 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. but now based on this Allahabad order an ordinance was promulgated by UP and MP Governor and this leads to controversy.
Principle features of this Ordinance promulgated by UP and MP Governor:
Under UP and MP Ordinance, if a person wants to convert, he has to give a 60 days-notice to the District Magistrate and DM will institute a police inquiry just to see whether this conversion is not due to fraud, forced, threat and not for marriage. The burden of proof is on somebody who is performing this conversion, he has to prove that this conversion is not forced, fraud. It’s a consensual one and the burden lies on the person who is accused of forceful conversion. Because in the ordinance, the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, which means marriages done for the sole purpose of religious conversion are liable to be declared void and all these offences under the U.P. Law are non-bailable.
Arguments in favour of these Laws:
Male chauvinism and patriarchy.
Like there is an inter-religious marriage, which leads to conversion and we will see that in majority of the case who converts? It’s a women/ girl who converts and embraces the religion of her husband. There exists a question:
Why the women converting and embracing the religion of her husband?
Because has to now align herself, with their religion and culture of the husband. Husband tells her women since you are coming to my house; please embrace my religion and culture and this is male chauvinism and patriarchy and that’s why Law is doing good. It is banning these unlawful conversions because why should a woman converts her religion for marriage. That’s why feminists of this country support this law.
Husband asks his wife to convert into his religion. Why? Because the husband is uncomfortable in living with a person of another religion. This is bigotry and must be condemned and law is doing good because it attacks bigotry.
Community-level supremacist attitude.
These laws should be praised because they attack patriarchy, bigotry and community level supremacist attitude. If this conversion is for other reason, or a consequence of marriage, it should be outlawed.
These were the above reasons because of which some are in favour of these laws.
Arguments against these Laws:
Some people who believe that there is no such thing like Love-Jihad they believe that women have no individuality, no freedom, they are the one who are cheated by the men so men will decide to whom should a woman marry, how should a woman convert? That’s why this Law should be opposed.
Violates vital principle of free will.
Because of these laws you have to tell the District Magistrate authorities that I am converting, that means you are revealing you belief which goes against the vital principle of free will.
Likely to be misused.
The law presumes that the woman is a chattel of the family, community and relatives who now have greater agency than her and can invite police and bureaucrats to interfere in an adult’s personal choice.
Violates core principles of criminal justice system.
What are core principles of criminal justice system?
You are innocent until proven otherwise. This law turns this concept upside down. It says that you are guilty and you have to prove that you are innocent because the burden of poof lies on the accused.
Criminal justice system says the punishment or the crime should be precise. Here because of these laws, one grounds on the basis of which you can be arrested is “allurement”. If you are alluring another person to convert, this is a crime. Another key principle of criminal justice system is violated and the crime is not defined. This law is not clear and is liable to be misused and that is why those who oppose this law they oppose on this ground.
“Reconversion” to a person’s previous religion is not illegal. That’s why people oppose these laws as well on this ground.
Woman is treated as a separated category. If you are accused of unlawful conversion the punishment is 1-5 years. But if you are converting a minor, SC, Tribal or a Woman the punishment doubles. It becomes 2-10 years which means that law is patriarchal. This is also a ground who oppose these laws.
Whether this law should be passed?
According to my views on this, I think there is no need of any law and the way forward is we need an honest law to deal with inter-religious marriages without the need for a man or woman to convert which means inter-religious marriages without any conversion. Basically, what we have need we need to strengthen the Special Marriage Act, 1954. As this is one principal law which allows inter-caste, inter- religious marriages without any need for conversion. But there is a problem with this Act, notice period of 30 days unlike other personal laws where you get marry in a jiffy here if you marry under special marriage act, you have to give a notice under 30 days so, after 30 days you can come and they register your marriage but your marriage application will be prominently displayed at our office as this violates the right of privacy of that individuals who are getting married and became open for those who are opposing this marriage and since the exact location, date, name is known ; physical violence can be used to stop this marriage. This act also stipulates that an application for marriage can be made only in a place where at least one of the parties resides. If the problem is conversion for marriage why don’t we simplify this special marriage act. Another problem is there if either of the parties is not permanent resident of the place, the Act says that the marriage officer has to inform the court in the district within whose limits that party is a permanent resident. The court must then display a copy of the announcement of the intended marriage at a conspicuous place in its premises. Physical violence can be used to stop this marriage. We need an honest law to strengthen a law which allows inter-religious marriages without any need for conversion. For that we need to strengthen and remove the loopholes in the Special Marriage Act, 1954 and if that happens then there is no need for anybody to fear.
About the author:
Vidushi singh, a young law student with law skills and a singer, who also have a keen interest in learning different languages and exploring; have a keen and deep interest in criminal field and many other legal aspects, has authorized this article. She is a 2nd year legal intern at Prodigy Legal and is currently doing great in other legal topics with our professionals.