Will UP Government’s Ordinance on Love Jihad succeed in Courts?

Love Jihad has been in the news of late. States like Uttar Pradesh and Madhya Pradesh have time and again warned against the problem of so-called Love Jihad and have claimed that this leads to forceful conversions of Hindu girls and women under the pretext of marriage.

Simply put, Love Jihad refers to conversion of a Non-Muslim women to Islam by feigning love and marriage. The right-wing groups in India have repeatedly claimed that this is an organized conspiracy against Hindu women. On the other hand, liberals have long decried these claims as baseless and have accused right wing groups of Islamophobia.

Undoubtedly, we have seen various cases and instances where Inter-religious marriages have gone awfully wrong and its often women who are at receiving end of severe abuse, torture – both mental and physical, and immense pressure to convert to Islam post marriage. Therefore, simply ignoring these cases as Islamophobia, or stray cases would be wrong. There have been way too many instances where women, mostly Hindu have been at the receiving end of such forceful conversions, pressure, abuse, torture and in many cases even death. The Liberals have often described these incidents as one-off incidents and argued that such incidents do not reflect an organized, nation-wide trend. However, on the other hand, Hindu Nationalists and Right-Wing associations have insisted that such conversions are part of a larger nationwide Islamic Conspiracy. Off late, Kamalrukh Khan, wife of Wajid Khan, the late music director has penned down the story of her marriage to the Musician under Special Marriage Act and highlighted how she was subjected to severe direct mental pressure to convert to Islam from husband’s family members which affected her marriage.

Truth perhaps lies somewhere in the middle. However, whether there is a real need for a law against religious conversion is the crux of this discussion. UP Government has recently introduced an Ordinance against Love Jihad, called – “Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020 (Uttar Pradesh Vidhi Viruddh Dharm Samparivartan Pratishedh Adhyadesh 2020)”.  Other Governments, including Madhya Pradesh Government has stated that they might introduce a bill against Love Jihad soon.

The stated objective of this Ordinance is – “To provide for prohibition of unlawful conversion from one religion to another by misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage and for the matters connected therewith or incidental thereto.”

A cursory glance at the above section says that this bill targets not just love-jihd but also mass conversions by social and charitable organisations, that Hindu Nationalists have long complained against. The Ordinance further states – “if any conversion is made due to any Allurement, Gift, Gratification, Easy Money, Material Benefit, Employment, Free education in reputed school or better lifestyle, divine displeasure or due to Coercion, Fraudulent means, then such a conversion shall be punishable under Section 5.”

Therefore it is clear from the above reading that the law targets not just conversion by marriage, but also mass conversions done by social organizations, through allurement, gratification and promise of a better lifestyle or fear of inviting divine displeasure. Right wing Hindu organizations have for a long time alleged and opposed mass conversions by Catholic groups, especially conversions of Adivasis and Tribals, by promising them gifts, or by promising them a better lifestyle. This Ordinance supposedly wants to bring that to an end as well.

Further, the ordinance states that any aggrieved person as well as family member of such a person may file a complaint against forceful religious conversion and the ordinance says – “Any aggrieved person, his parents, brother, sister, or any other person who is related to him by blood, marriage or adoption may lodge a complaint of such conversion which contravenes the provisions of section 3.”

The ordinance has special provisions of conversion for sole purpose of marriage or marriage for sole purpose of indulging in unlawful conversion. It states that “If any marriage is done for the sole purpose of unlawful conversion or vice versa by the man of one religion with the woman of another religion either by converting the woman before or after marriage may be declared void by the family court on a petition filed by either party thereto against the other party of the marriage.”

Thus, if a conversion is done with the sole purpose of marriage, such a marriage could be declared null and void by the Family court or any other competent court.

The Ordinance on the other hand requires a declaration from persons who desire to convert to another religion voluntarily. It states – “One who desires to convert his religion voluntarily, he/she shall give a declaration in the form prescribed in Schedule I at least 60 days in advance, to the District Magistrate”. The declaration has to clearly state that the person wishes to convert to another religion voluntarily and is not doing the same under any force, undue influence, coercion or any allurement.

Violation of all the above provisions may lead to varying degrees of fines and imprisonment, making offence under this ordinance a criminal offence.

Now the question arises whether the above ordinance is a good in law, or whether it infringes on rights and liberties of individuals in any way. Liberals and activists have decried this ordinance on various grounds, the chief one being that this ordinance infringes personal autonomy of citizens and blatantly disregards the provisions of liberty as enshrined in the Constitution.

Experts and prominent legal luminaries have decried this Ordinance on the grounds that it infringes on various aspects of personal rights of citizens of India and legitimises State’s intrusion in matter of personal rights and liberties. This is true to an extent – the very idea that two consenting adults have to justify their decision of marriage and/or religious conversion to the State is abhorrent. This effects their right to marry the person of their choice without any intrusion from the State. Further, the ordinance treats every conversion as lawless, unless certified as lawful by the State, which is deeply problematic in itself.

The provisions of the ordinance gives State sweeping powers to interfere in citizen’s life, including his or her choice of a life partner or religion and infringes upon fundamental rights of privacy, dignity and autonomy as well as Personal Liberty as guaranteed by Article 21 of Indian Constitution.

It is notable to note that Allahabad High Court, in a recent judgement has stated that “We fail to understand that if the law permits two persons even of the same sex to live together peacefully then neither any individual nor a family nor even the state can have an objection to the relationship of two major individuals who out of their own free will are living together.”

Therefore, despite UP Government’s best intentions in formulating this ordinance, it is plausible that the courts, if they follow their own previous judgements, might strike down this ordinance as bad in law.

In the meantime, it is undeniable that while forceful conversions do happen, and often women are at receiving end of the same, in a conversion through marriage and the most vulnerable sections of the society ate subjected to mass conversions, better awareness and other redressal mechanisms to address these issues are the need of the other. Whether a blanket ordinance that bans religious conversion altogether is the right solution or whether the courts would declare it bad in law remains to be seen.

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