UP’s Anti-Love Jihad law: Is it Constitutional? Ordinance contravenes freedom of liberty, autonomy, privacy and choice
05, Dec 2020 | Adeeti Singh
The new Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020, that received the Governor’s assent late November, has already led to two people being booked under it.
After Uttar Pradesh, States like Madhya Pradesh, Haryana, Karnataka, Assam are planning to come up with similar ‘anti-Love Jihad’ laws to criminalise religious conversions by marriage. An interesting aspect of the ordinance is that it still does not define ‘Love Jihad’ but attempts to criminalise it.
Deccan Herald had reported that the Uttar Pradesh Chief Minister Yogi Adityanath in a rally ahead of the assembly by polls had said those who “play with the honour and dignity of sisters and daughters by hiding their real names and identities…If they do not mend their ways, their ‘Ram Naam Satya’ journey will start.”
Although the purpose of such law was to counter alleged attempts to convert Hindu women to Islam in the guise of marriage, the ordinance does not mention any specific faith. So, does this law extend to non-Hindu-Muslim relationships? There is very little clarity on this.
The underlying tone of the ordinance delegitimises every conversion unless it gets the State’s blessing. Section 3 of the ordinance deems all conversions by marriage unlawful. Violation of this provision attracts a maximum of 5 years imprisonment and a fine of minimum rupees fifteen thousand.
Section 4 enables any person related to the converted person by blood or marriage to lodge an FIR against the conversion. Section 6 empowers Courts to declare any marriage done for the sole purpose of unlawful conversion or vice versa void.
Liberty and autonomy
All these provisions give power to the State to police personal relationships and throttle a citizen’s freedom of choice. In Shafin Jahan v Asokan KM (2018) 16 SCC 368, the Supreme Court had said, “Interference by the State in such matters has a seriously chilling effect on the exercise of freedoms.”
Others are dissuaded to exercise their liberties for fear of the reprisals which may result upon the free exercise of choice. Intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the state. Courts as upholders of constitutional freedoms must safeguard these freedoms.
Section 8 and 9 lay down the procedure that needs to be followed pre and post conversion. It mandates an advance notice of 60 days to the District Magistrate before the intended conversion, which is to be followed by a police enquiry into the circumstances of conversion. The religious priest/converter doing the conversion is also required to give such prior notification to the District Magistrate. After the conversion, the person has to appear before the District Magistrate for confirmation. The authority will notify the conversion and will invite public objections, before confirming the conversion.
All this rigmarole for an unforced marriage damages a person’s liberty, autonomy and also gives State support to the threat and societal pressures most interfaith couples face. The courts have acknowledged the hostility couples have to face as such marriages are seen from the prism of a conspiracy theory rather than an intimate choice.
In Lata Singh v State of Uttar Pradesh (2007) 1 GLH 41, the Supreme Court had observed that, “Parents of the boy or girl cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter- religious marriage.” Even with such precedents in place, constant lynching and harassing continues that forces young people to flee their villages, hometowns and live in fear.
The provisions also go against the principle of equality under Article 14 of the Constitution. When interfaith couples can marry in other parts of the country without State intervention, but UP based couples have to go through a complex process to have their marriages registered, a blatant sense of discrimination and arbitrariness emerges.
Consenting adults
The Ordinance also disregards the decision made by two consenting adults. The courts have time and again stressed on the fact that if two people have attained the age of majority, they can marry and reside with whosoever they like to.
In Sony Gerry vs Douglas Gerry (2018) 2 KLT 783, the Apex Court said, “It needs no special emphasis to state that attaining the age of majority in an individual’s life has its own significance. She/He is entitled to make her/his choice. The courts cannot, as long as the choice remains, assume the role of parents’ patriae. The daughter is entitled to enjoy her freedom as the law permits and the court should not assume the role of a super guardian being moved by any kind of sentiment of the mother or the egotism of the father.”
The former Chief Justice of India Dipak Misra, in Shakti Vahini vs Union of India 2018 AIR SC 1601, had remarked, “When two adults marry out of their volition, they choose their path; they consummate their relationship; they feel that it is their goal and they have the right to do so. And it can unequivocally be stated that they have the right and any infringement of the said right is a constitutional violation.”
The Right to Privacy
The new ordinance also has a tone-deaf position on people’s fundamental right to privacy. The landmark judgment of KS Puttaswamy v Union of India 2019 10 SCC 1, that upheld the right to privacy as a fundamental right, had laid down privacy as an important facet of dignity. Choosing a life partner is a matter of privacy. The top court had said,
“Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. “The constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world.”
The unreasonable intrusion of State to discredit wedlock’s violates this very right to privacy and disempowers individuals. If the State needs to be satiated about people’s right intentions to practice their freedom of choice, it leaves their right to privacy handicapped. In the Puttaswamy judgment, the court had also observed,
“The freedoms under Article 19 can be fulfilled where the individual is entitled to decide upon his or her preferences. Read in conjunction with Article 21, liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matter on which autonomy and self-determination require a choice to be made within the privacy of the mind.”
Proportionality
Some may argue that conversion for the sole purpose of marriage or marriage for the sole purpose of conversion may be morally and ethically wrong. But is criminalising it a proportional outcome?
In Joseph Shine v Union of India 2018 SCC OnLine SC 1676, Justice Indu Malhotra had opined, “The element of public censure, visiting the delinquent with penal consequences, and overriding individual rights, would be justified only when the society is directly impacted by such conduct. In fact, a much stronger justification is required where an offence is punishable with imprisonment. The State must follow the minimalist approach in the criminalization of offences, keeping in view the respect for the autonomy of the individual to make his/her personal choices.”
The ordinance fails to address the necessity and reason to hold such marriages void, and force couples to give rigorous undertakings to go through something as personal as marriage. It also shifts the burden of proof (section 12) to the accused to prove that the wedlock entered into by the two people is not forced as opposed to the general principle followed in criminal law that places the burden on the prosecution and treats the accused as innocent until proven guilty.
This makes it easier for disapproving parents and family members to slap frivolous charges against the couple who defy their parent’s diktat on marriage. Such a law will also lead to disproportionate results of acting like a deterrent for interfaith couples.
Section 7 makes the offence of illegal/forced conversion a cognisable and non bailable offence. This means that a police officer has the power to arrest an alleged accused without a warrant and detain him for a number of days, at the court’s discretion.
Right to Conscience
Article 25 of the Constitution stipulates the freedom of conscience and free profession, practice and propagation of religion. The right to conscience has also been framed independent of the right to religion. This means one can be non-religious and exercise the right to conscience, which according to the dictionary meaning involves “a knowledge or sense of right or wrong, moral judgement that opposes the violation of previously recognised ethical principles and that leads to feelings of guilt if one violates such principles”.
Thus, an individual’s exercise of conscience cannot be restricted simply because it does not conform to the ethics and morals set by a religion. If an individual feels a religious principle is violative of his or her ethical beliefs, and if the individual’s ethical beliefs are not in violation of laws or are in the manner of restricting the exercise of another person’s rights, the right to conscience cannot be circumscribed.
So, the important question to ask here is how can a State impose restrictions on a person’s right to conscience which could entail religious conversion? In the landmark judgment of Rev Stanislaus vs Madhya Pradesh 1977 SCR (2) 611, the top court looked at the constitutional validity of two anti-conversion legislations in Orissa and Madhya Pradesh. The Supreme Court in 1975 backed the Madhya Pradesh High Court interpretation of the anti-conversion law.
The Madhya Pradesh court accepted the argument that the anti-conversion law is essentially a law protecting public order and so is covered by the reasonable restriction on right to religion and conscience prescribed in Article 25 (1) of the Constitution, upholding the state legislation. The Supreme court looked at religious conversion from the prism of public order.
The top court said, “The Acts therefore dearly provide for the maintenance of public order for, if forcible conversion had not been prohibited, that would have created public disorder in the States…. public order is an expression of wide connotation and signifies a state of tranquillity which prevails among the members of a political society as a result of internal regulations enforced by the Government which they have established.”
To frame a matter of personal autonomy as that of public order, would be to hollow out the right to liberty and privacy. If communal elements create a public order problem because two individuals chose to marry, the duty of the state is to clamp down on intimidation and infringement of rights, not go into a digging expedition to determine the validity of someone’s belief.
However, while the 1975 judgement upheld the validity of anti-conversion laws, it did not say that a person should not convert for the sake of marriage.
Conversion for marriage
In Smt Noor Jahan Begum @ Anjali Mishra and Anr vs. State of U.P. and ors. (W.P [C] No. 57068 of 2014), Noor Jahan along with her alleged husband approached the Allahabad High Court for claiming protection as it was alleged that she had embraced Islam after renouncing her Hindu identity to contract a Nikah with her Muslim husband. Under these circumstances, the court had held their union to be illegal as it was performed after a conversion which could not be justified in law.
The Bench had observed, “If a conversion is not inspired by religion feeling and under gone for its own sake, but is resorted merely with object of creating a ground for some claim of right or as a device adopted for the purpose to avoid marriage or to achieve an object without faith and belief in the unity of God (Allah) and Mohamed to be his prophet, the conversion shall not be bonafide. In case of a religion conversion there should be a change of heart and honest conviction in the tenets of new religion in lieu of tenets of the original religion.”
This case also referred to a 2000 Supreme Court judgment of Lily Thomas, Etc. Etc. vs Union of India & Ors (2000) 6 SCC 224. The Lily Thomas case essentially involved a Hindu man converting to Islam for the sake of marrying a second wife. This practice, the court held, was abhorrent. The judgement also provided a legal remedy. It categorically said that even if the man converts, if the marriage with the first wife was legally alive as per the Hindu Marriages Act, he would be liable for prosecution for bigamy. The conversion or apostasy only creates a legal ground for divorce but does not automatically change the position of the first marriage.
In Priyanshi @ Km. Shamren and ors v. State of U.P and Anr (Writ C No. 14288 of 2020), the Allahabad High Court followed the precedent laid down in Noor Jahan Begum and noted that the girl was a Muslim by birth and she had converted to Hinduism, just a month before the marriage was solemnised. The court declined to interfere in the matter of providing police protection to the couple.
But the 2014 Allahabad High Court judgment of Noor Jahan Begum and Priyanshi was overturned by the same court in 2020. The Division Bench of the Allahabad High Court noted on November 11 in Salamat Ansari and Ors vs State of Uttar Pradesh and Ors (Cri. Misc. W.P No. 11367 of 2020), “None of these judgments dealt with the issue of life and liberty of two matured individuals in choosing a partner or their right to freedom of choice as to with whom they would like to live. We hold the judgments in Noor Jahan and Priyanshi as not laying good law.”
It is clear that the proposals for a legislation to stop “love jihad” is motivated not by some sympathy for women, but with the sole purpose of stopping conversion and inter-religious unions. It also is a ploy to increase the role of the state, and in consequence vigilantes attached to the ruling dispensation’s ideology, in the personal lives of the citizens.
Recent HC orders
The ordinance that was produced by the UP Cabinet in the same month of the important and legally sound Allahabad High Court ruling on the matter speaks volume of the brazen insensitivity of the cabinet.
In Salamat Ansari and Ors vs State of Uttar Pradesh and Ors (Cri. Misc. W.P No. 11367 of 2020), a Division Bench held, “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. We do not see Priyanka Kharwar and Salamat as Hindu and Muslim, rather as two grown up individuals who out of their own free will and choice are living together peacefully and happily over a year.”
They added, “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.”
As Karnataka is considering to implement a similar law, Justices S Sujatha and Sachin Shankar Magadumthe of the Karnataka High Court have held, “It is well settled that a right of any major individual to marry the person of his/her choice is a fundamental right enshrined in the Constitution of India and the said liberty relating to the personal relationships of two individuals cannot be encroached by anybody irrespective of caste or religion.”
If challenged to test the constitutional waters of this law, it might fail miserably. It is also high time that the country stops looking at women as mere objects that need valorous men to be rescued and let religious dogmas dominate personal choices of men and women.
Related:
UP Governor gives assent to anti-Love Jihad ordinance
UP: ‘Love Jihad’ law catches pace, 2 cases registered in Bareilly
Right to choose a partner is intrinsic to Right to life & personal liberty: Allahabad HC
