Undoubtedly, the law carries within itself a certain amount of ambiguity. Communication and interpretation of laws lie in the competent hands of Indian judiciary, but it is equally clear that ordinances pertaining to ‘Love-Jihad’ remain unequivocally biased towards punishing Muslim youth.
Md Sabeeh Ahmad, TwoCircles.net
Aligarh: In August 2020, mother of one Shalini Yadav, complained that her daughter had been pressured to convert to Islam to marry a Muslim man. Although Shalini had earlier clarified through a video that she wasn’t forced, her mother’s complaint led the UP government to order an SIT investigation into her case and also similar cases of conversion of Hindu women across Kanpur. At that point, no one could have expected the complaints of Muslim youth attempting to ‘trap’ Hindu girls would give rise to the notorious anti ‘love Jihad’ ordinance. The ‘Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020’ states that a marriage will be termed ‘null and void’ if the sole purpose was the conversion of the girl’s religion. The ordinance remains centered around the conversion of the girl’s religion alone and the onus of proving the freedom of choice lies with her. A notice stating the girl’s wishes is to be submitted to the District Magistrate in advance before any such action can take place.
The ordinance is not new to criticism, however. Last month Allahabad High Court ruled in favour of a couple where the father of the wife alleged forced conversion. UP police were quick to take action even though no evidence of coercion were in sight except for the father’s plea. “She has a choice to live life on her terms and is free to move as per her choice without any restriction… has expressed that she wants to live with her husband… is free to move as per her own choice without any restriction or hindrance being created by (a) third party,” Allahabad Court pointed out.
A domino effect was witnessed when Madhya Pradesh and Uttarakhand started to roll out their own version of anti ‘Love-Jihad’ ordinances, even though the Centre does not recognize this term. It is a curious case of the federal states enacting laws to prevent a process which is not recognized by the central government. The MP ordinance even dictates that culprits receive imprisonment up to 10 years and are required to pay a minimum fine of 50,000 rupees compared to UP’s jail term of up to five years and a minimum fine of 15,000 rupees. The only silver lining here is Madhya Pradesh’s added requirement of obtaining permission to file a complaint under the new ordinance from the court, unlike UP where any blood relative can do so without any restriction.
The various ordinances suffer from the common ailment which plagues a majority of new laws being formulated in recent years: the problem of ambiguity. As the ordinance legally restricts its own bounds as being applicable to ‘forced conversion’ and ‘marriages carried out with the sole intent of religious conversion,’ it is easily exploitable and provides a wide avenue of misandrist practices. This does not take away from the seriousness of sexual harassment and religious conversions faced by women but surely posits itself as a loophole which can be exploited, and thus demands to be fixed. The ordinances take a reactive approach towards forced conversion as there is little detailing about the victim’s compensation but a detailed penalty for the accused is at hand. The bill attempts to justify their implementation under the garb of freedom and protection, but fails to define, assess, and solve the problems which are faced by the victims, to begin with. An ordinance which has been turned into a ploy for selectively targeting a particular community fails to come as a surprise at this point in Yogi government’s timeline.
Section 8 of the ordinance in question requires those who wish to convert must give a 60-day notice period to a district magistrate, declaring they are converting of their own accord. The person performing the conversion must also give a month’s notice to the magistrate. This advance notice period can be utilized as a tool to endanger, threaten as well as coerce the individuals involved through their parents or groups with vested interests. The National Investigation Agency (NIA) back in 2018 found that no “Love Jihad” was in play when it investigated cases of possible forced conversions for marriage in Kerala. The investigating agency closed the cases citing no evidence of “coercion” in the conversion of individuals.
This, however, would not be the first instance of such a law. The Himachal Pradesh High Court way back in 2012 struck down a similar law namely Himachal Pradesh Freedom of Religion Act, 2006. The act, in the irony of what the name suggests, restricted religious conversions. It required that a magistrate must be notified of all religious conversions and that they be publicly recorded 30 days in advance. The law, obviously, made exceptions to those reverting to their original faith, mostly Hinduism. Justice Deepak Gupta (later, Judge of the Supreme Court) struck down the Act as being ultra vires of the Constitution.
Another aspect of the law has to be the camouflage of “protecting” women. The Apex Court has held previously in both Anuj Garg and Joseph Shine that measures “perpetuating damaging sexual stereotypes that regard women as inferior cannot be saved in the name of being ostensibly “beneficial” to women under Article 15 (3) of the Constitution. Article 15 (3), which allows for “special provisions” to be made for women and children, cannot save laws whose entire rationale is discriminatory.”
In addition to this, the fundamental right of an individual to choose one’s life partner has been upheld by the Supreme Court in several landmark cases which include but are not limited to Shafin Jahan and Shakti Vahini. With the implementation of this law, an individual would not be free to exercise their right to choose, a crystal-clear case of the inability in exercising fundamental rights as guaranteed under the Constitution.
On 12 January, the Allahabad High Court held that the 30-day public notice period and objections procedure under the Special Marriage Act 1954 (SMA) cannot be mandatory. The notice period also unnecessarily harassed interfaith couples. The Allahabad HC is yet to hear petitions filed against the ‘Love Jihad’ ordinance (the Supreme Court recently refused the UP governments plea to move the petitions to the SC), but this judgement against the SMA could be indirectly decisive for interfaith couples. The judgement could now allow interfaith couples to opt the SMA route since the notice period has been adjudged non-mandatory. Hence, not requiring any conversion for the sake of marriage, since conversion is the fundamental element to the ‘Love Jihad’ Ordinance. Secondly, the arguments based against the Ordinance could also use this as a judicial precedent against any notice period and subsequently refer to this particular judgement to prove that the ‘Love Jihad’ ordinance is indeed ultra vires of the Constitution.
Undoubtedly, the law carries within itself a certain amount of ambiguity. Communication and interpretation of laws lie in the competent hands of Indian judiciary, but it is equally clear that ordinances pertaining to ‘Love-Jihad’ remain unequivocally biased towards punishing Muslim youth. The intention of protecting women is a clever euphemism for the perceived incompetence of women when it comes to handling themselves in social situations. The fact that this notion of incompetence is encouraged by the said ordinances while also providing an opportunity to target a selected community is a matter of concern for the judiciary. The Ordinance, therefore, is an intrusion into multiple fundamental rights, all at once.