LOVE JIHAD: A CRITICAL ANALYSIS OF THE UP LAW

The ordinance impinges on the right of the citizens u/Art. 25 as it does not criminalises “reconversion” to a person’s previous religion and considers it legal, even if it is vitiated by fraud, force, allurement, or misrepresentation. 

Recently, 104 IAS officers have written a letter to the Chief Minister of Uttar Pradesh requesting him to withdraw the Prohibition of Unlawful Conversion of Religion Ordinance, 2020. The ordinance criminalises inter-faith marriages that take place solely for the purposes of religious conversion.

DO INTERFAITH MARRIAGES LEAD TO INCREASED HARMONY IN SOCIETY?

Before going into the analysis of the ordinance, it is important to understand the significance of interfaith marriages as a separate social institution. In his book “Annihilation of Caste”, former Law Minister of the nation, Dr. B.R. Ambedkar, while talking about the reformation of the caste system emphasised inter-dinning and interfaith marriages to make Hindusim egalitarian. 

Further, the importance of inter-faith marriages has been established internationally. Article 16 of the Universal Declaration of Human Rights has laid down that “men and women of consenting age, without any limitation due to race, nationality or religion, have the right to marry and to found a family…”. If religions become endogamous, it will not only foster assimilation and accommodation, which are the objectives in a democratic society but also ensure peace and harmony.

WHY WAS THE ORDINANCE BROUGHT?

The next question that should be addressed is regarding the intent of the state while passing this ordinance. A certain section of the society believes that the state has gone forward with this ordinance considering the “urgency” or the immediate need to address the issue of religious conversion. However, the statistics available reveal otherwise. India does not collect information on interfaith marriages. According to a survey conducted by the Institute of Population Sciences, which is a nationally representative and multi-topic survey of 41,554 households in 1503 villages and 971 urban neighbourhoods across India, only 2.21% of people have engaged in interfaith marriages, the highest rate being in Punjab (7.8%). Considering these statistics, the argument of “urgency” does not hold water, putting a question mark on the intention of the state.

CONCERNS OVER THE DRAFTING OF THE ORDINANCE

The ordinance was drafted after the Hathras rape/murder case, in which a girl from the Valmiki sect was raped by men belonging to an upper caste. This resulted in a mass scale conversion of the people of the Valmiki sect to Buddhism. The incident led to backlash faced by the state government, and this ordinance was passed as a result of the same. It is a hastily and poorly drafted document that leaves a lot of room for exploitation and violation of rights. It has also been plagued with vague definitions of important terms. For example, the ordinance criminalises forced conversions in return for some “allurement”. This means that if a person gifts a religious text to their friend and the friend decides to convert after this, they will be penalised. One of the most important conditions in criminal law is that the text of the law should be unambiguous. Further, the term “allurement” is coupled with other terms like “or otherwise”. It implies that if a person, A merely insists that his religion is more environment friendly and hence people should adopt it, and the other person, B converts relying upon this statement, A might end up being penalised under this law. Moreover, the ordinance misses an essential contention. It criminalises conversion just before or after marriages. However, the forced conversion may take place well before or after the marriage and escape the penalties, thus defeating the purpose of this law. 

CHALLENGING ITS CONSTITUTIONALITY

love jihad

“Lack of Faith in Interfaith Marriages”, created by Soumia G. for Critiqued


There has been a lot of discussion surrounding the constitutionality of this ordinance. Article 25 of the Constitution guarantees freedom of conscience and free profession, practice, and propagation of religion. The ordinance impinges on this right of the citizens as it does not criminalise “reconversion” to a person’s previous religion and considers it legal, even if it is vitiated by fraud, force, allurement, or misrepresentation. For example, A, a Muslim boy marries C, a Hindu girl, and C converts to Islam out of her own will. However, if after such conversion the relatives of the girl do not approve of the same, they might get her converted to Hinduism without her consent. This act of the relatives is not criminalised by the ordinance and widens the scope for exploitation and impinges on the freedom of conscience. 

Further, its implementation is violative of Article 21 of the Constitution, which guarantees the right to life and personal liberty. This ordinance has been in effect for over a month now and the records show that the UP Police has registered 14 cases and made 51 arrests, of which as many as 49 are in police custody. Of these 14 cases, 13 involve Hindu women allegedly forced to convert to Islam. In only two cases, the complainant is the woman herself, in the remaining 12, the complainant is registered by her relatives. In two of them, Hindu right-wing activists interfered with the formalities by holding protests at the police station. In eight cases, the couple is said to have been either friends or in a ‘relationship’; while only one couple claims to be married. This puts a question mark on the validity and honesty of the cases registered. If these cases are registered with a mala fide intention, it is a violation of the right to life and personal liberty. 

Moreover, the ordinance follows the footsteps of the draconian UAPA with regards to the burden of proof. Generally, the burden of proof in criminal cases is on the prosecution, and the presumption is that a person accused of committing an offence is innocent until proven guilty. The ordinance presumes every religious conversion as illegal and follows the principle of “guilty until proven innocent”. This arbitrarily burdens the already weak position of the accused. 

Lastly, Article 15 of the Constitution provides that “equals should be treated equally and unequals unequally”. This ordinance arbitrarily doubles the punishment to 2-10 years if the victim is a woman without considering any other variables. She may be a highly educated working woman but if somebody converts her against her will, the punishment can go up to 10 years in prison. However, if an offence under this ordinance is committed against a male, the culprit will get a term of 5 years at most. The ordinance unfairly clubs all women together— assuming that all women, and not merely women from historically marginalised or economically weak groups, are gullible, vulnerable, and especially susceptible to illegal conversion. This results in exploitation and people have already started suffering. Recently, a Muslim boy ended up being jailed while returning from a birthday party in Bijnor, Uttar Pradesh with a Dalit girl. The girl has reportedly claimed that no inducement to conversion took place. However, the boy is now guilty until proven innocent and can be jailed to even ten years.

Additionally, provisions of the SC/ST Act would be attracted. Section 3 of the act punishes the acts where the person who is in a dominating position corrupts the will of the woman belonging to an SC/ST community and uses that position to exploit her sexually. This act attracts a punishment of a minimum of six months, and five years at most. This additional charge will also be attracted if a couple is believed to have had a mixed marriage wherein the girl is from the SC/ST community.

ITS SOCIETAL IMPACT

This ordinance has practically made it more difficult for people from two different religions to get married than it was before the passing of this ordinance. While the Special Marriage Act, 1956 is in place, it does little to solve the problems of the couples. Firstly, the requirement of a prior 30-day public notice is arbitrary. When parties are from different faiths, public notice can be a great source of danger and harm from the family members and other relatives. This requirement has been rightly challenged in multiple petitions. Despite this, a similar or rather more severe requirement of an application to the district magistrate with a 60-day public notice and a police inquiry before conversion for marriage is mandated under this UP ordinance. Secondly, the Special Marriage Act mandates the presence of an extra witness – three, instead of two in the case of solemnisation of marriages under personal laws. Since it is an interfaith marriage, the couple might have difficulty in getting witnesses in the first place. Further, the witnesses can be called to testify in case any objections are raised during the 30-day notice period. This extra responsibility might make the concerned person think twice before agreeing to be a witness, adding an extra layer of complexity in the overall process. Thirdly, the couples in this act are referred to as “children” which implies that they are under parental control or guidance. This extreme emphasis on parental control in this act had already made the situation for the couples very difficult. The UP ordinance nullifies marriages even where consensual conversion has taken place without giving prior notice to the State government. Hence, this ordinance has made a bad situation even worse. 

We must keep finding answers to important questions that concern our freedom of choice. Thus, the state should reconsider this ordinance and the provisions laid down therein in light of some horrendous acts that were experienced recently.

Cover Image Credits: Gayathri N.

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