This article is written by Chandni, student at Army Institute of Law, Mohali

In November 2019 the Uttar Pradesh State Law Commission (UPSLC) had submitted a 268 pages report along with draft legislation, Uttar Pradesh Freedom of Religion Bill, 2019, to the state government recommending a new law to regulate forcible religious conversions in the state and control conversions at the behest of fraud, inducement, allurement, coercion and those done for the sole purpose of marriage. And in November 2020 the state of Uttar Pradesh—home to India’s largest Muslim population came up with an ordinance against forceful religious conversions, the Uttar Pradesh Prohibition of Unlawful Conversions of Religion Ordinance, 2020 commonly known as the “Anti Love-Jihad Ordinance”. The ordinance was promulgated after Uttar Pradesh Chief Minister vowed to end “love-jihad”, a term used by religious conservatives to describe interfaith relationships and marriages. Recently on 24 February 2021 the Uttar Pradesh Legislative Assembly passed by voice vote the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Bill, 2021 in order to replace the above-said ordinance which is yet to receive the Governor’s assent.

POPULARITY UNDER YOGI RULE

Starting in coastal Karnataka and northern Kerala in the mid-2000s, Sangh vigilantes claimed that Hindu-Muslim romances were a well-thought-out conspiracy to seduce Hindu women in order to convert them to Islam and produce Muslim children. It was among these vigilantes that the term ‘love jihad’ was bandied about. But the term gained currency and scope for destruction in the north under the gaze of Uttar Pradesh Chief Minister Yogi Adityanath. The issue of ‘love jihad’ has always been close to his heart. It has been his agenda even before he became the Chief Minister of U.P. As C.M., he termed it a “dangerous trend” during a rally in Kerala in 2017. While the B.J.P. did not mention the word in its poll agenda in previous state assembly elections, Yogi, even as Gorakhpur M.P., never shied away from being vocal about it. 

THE SCOPE FOR MISUSE

The said law makes religious conversion cognisable and non-bailable offence imposing a jail term of up to 10 years if such a conversion is undertaken through misrepresentation, undue influence, force, coercion, allurement, or other allegedly fraudulent means or solely for marriage and requires that religious conversion for marriage be approved by a district magistrate by giving a 60-day notice. The open-ended use of terms without any established criterion to assess the same makes the law prone to misuse and abuse. For instance, the definition of the term “allurement” has a very broad scope which may include any kind of gifts or gratification. In fact, the first case lodged under the law a day after it was promulgated was registered by a person who accused a man of trying to convert his daughter through “allurement”. Also, cases reported in U.P’s Moradabad and Bijnor are evidence of the potential misuse of such a law.

As pointed out by several experts and analysts, the law is framed in vague language and appears to be intended for the harassment of interfaith couples, rather than serious worries about ‘forced conversion’. Justice Ajit Prakash Shah, former Chief Justice of Delhi High Court has also said that the ordinance was “capable of great public mischief”.

Additionally, the burden of proof that ordinarily, in any given case is on the prosecution, is in the U.P. law on the person who has “caused” the conversion.

VIOLATIVE OF CONSTITUTIONAL VALUES

Any such law cannot hold ground because it is violative of the basic values of the constitution not just on one count but on multiple counts. It is felt that it would interfere with the right to marry according to one’s own choice, which is a constitutional right that everyone enjoys. Recently in the case of Salamat Ansari and Others v. State of U.P. and Others, the Allahabad High Court held that “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. Interference in a personal relationship, would constitute a serious encroachment into the right to freedom of choice of the two individuals, neither any individual nor a family nor even State can have an objection to a relationship of two major individuals who out of their own free will are living together.” Further the court observed that “the decision of an individual who is of the age of majority, to live with an individual of his/her choice is strictly a right of an individual and when this right is infringed it would constitute a breach of his/her fundamental right to life and personal liberty as it includes right to freedom of choice, to choose a partner and right to live with dignity as enshrined in Article 21 of the Constitution of India”. 

Former judge of the Kerala High Court, Justice M Sasidharan Nambiar, has said that in his view, “the ordinance will not survive the test of constitutional validity as it violates Article 21 of the Constitution which guarantees personal liberty of every citizen of this nation irrespective of religion, caste and gender.”

Earlier also in the case of Shafin Jahan v. Asokan K.M., or the so-called Hadiya case the Supreme Court observed that “What is seminal is to remember that the song of liberty is sung with sincerity and the choice of an individual is appositely respected and conferred its esteemed status as the constitution guarantees. It is so as the expression of choice is a fundamental right under Articles 19 and 21 of the Constitution.” The court further laid emphasis on the fact that “Expression of choice in accordance with law is acceptance of individual identity. The individualistic faith and expression of choice are fundamental for the fructification of the right. Non-acceptance of the victim’s choice would simply mean creating discomfort to the constitutional right by a constitutional court which is meant to be the protector of fundamental rights.”

Justice Deepak Gupta, former Supreme Court judge, too called the law “absolutely unconstitutional,” while adding that it takes away the right of choice of every human being. Similarly, former Supreme Court judge, Justice Madan B Lokur, said that “it will require a miracle to uphold its constitutional validity,” while calling it “one of the strangest legislations” he had ever seen.

Such an anti-conversion law in a secular country like India is of doubtful constitutional validity as it interferes with the core of the right to freedom of religion. It will make inter-faith marriages which are fairly uncommon (around just 2%) in India more difficult for it imposes several impediments in their way.

OPINION OF PROMINENT LEADERS

If we look into the olden times’ intermarriages, be it inter-caste or inter-faith have been advocated as an effective tool for repairing societal divisions and ensuring an all-inclusive society.

Recognising this, during the drafting of our Constitution, some members of the Sub-Committee on Fundamental Rights, especially the women members Rajkumari Amrit Kaur and Hansa Jivraj Mehta, advocated for the inclusion of interfaith marriage as a fundamental right. In the Annihilation of Caste, B.R.Ambedkar wrote that “ inter-dining has not succeeded in killing the spirit of caste and the consciousness of caste. I am convinced that the real remedy is intermarriage.”  

Further Chaudhary Charan Singh, in 1954 as a minister in the Uttar Pradesh Government sent a proposal to Prime Minister Nehru to pass a law that would ensure only those youth who married outside or were prepared to marry outside, their caste is recruited in gazetted government services. He believed the intractable issue of caste required drastic measures to start the process of its disintegration. Nehru disagreed with his proposal on account of the freedom of choice of individuals to choose their life partner. 

All this is an indicator of the distance travelled by us from the time where intermarriages we encouraged to the time where we have in place such laws which criminalise inter-faith marriages. How far we have come from that position today in 2021. In such a situation, where both the executive and legislature have failed to preserve the constitutional values it is for the judiciary to strike down such a law and prevent any other such law from being implemented.