Significance of ‘Love Jihad Law’- is it really what it is called?

By Bhavika Makhija, Student, Institute of Law, Nirma University


Introduction.

The Uttar Pradesh Prohibition of Unlawful Conversion of Religious Ordinance, 2020 which is colloquially being called the ‘Love Jihad law’ is actually meant to prohibit the conversion from one religion to another done by force, fraud, undue influence, coercion, misrepresentation, allurement or marriage, but it is being said to be against love jihad. This law came into being after a considerable number of cases of conversion were reported in different parts of the State.

Checking its validity in the context of  Part III of the Constitution and Related Judicial Pronouncements.

Love jihad is an Islamophobic conspiracy theory which says that Muslim men are converting non-Muslim, especially Hindu and Christian, women into Islam by either pretending to be of some other religion and feigning love or by force and threats or by any other illegal means, though this can’t be proved by the investigations conducted. The Anti-conversion Act of UP is being said the love jihad act even though there isn’t even any mention of this term or concept in the Act itself, because of the pretext and the circumstances in which it was proposed and approved. It is not unknown to the masses that BJP is a Hindu Nationalist party and that they believe that India essentially is a Hindu nation. Just about a month before the ordinance was passed, UP CM Yogi Adityanath in a gathering said that his government will bring a law to curb love jihad, and then this ordinance was passed, so it would not be surprising to think on these controversial lines. However in practicality, to counter this, focus can be shifted to the letter of the law. There is nothing in the ordinance which shows that it intends to specifically prohibit this unlawful conversion of Hindu girls to Islam, but in general every forceful conversion. This law does not violate Article 25 of the constitution of India, as alleged by critics, it in fact is in consonance with that article as it ensures freedom of conscience which means professing a religion with own consciousness but the right to propagate does not include the ‘right’ to convert someone forcefully. Propagation means and includes transmitting, communicating or spreading one’s religion, not conversion by force or allurement, etc. [1] The ordinance does not completely forbid religious conversion, all it does is to create a procedure of notifying the district magistrate 60 days in advance of such conversion to ensure that the conversion is due to own volition of the person converting and not otherwise. It is also in line with the established notion that right to marry a person of one’s choice is integral to Article 21 i.e. right to life and liberty, in the sense that it checks and ensures that no one is deceitfully or forcefully made to marry someone and then change their religion. If after investigation it is proved that one willfully wants to marry and convert religion the law will not hamper it. [2] But the onus is upon the person so converting to prove that there is no force or undue influence or deceit in converting. Marrying someone solely for the purpose of converting their religion is illegal and will be declared null and void (shuniya) under this ordinance. Similarly converting into Islam solely for the purpose of marrying second time or avoiding earlier marriage and taking the advantages of Islamic laws, without any real change in belief, will be void [3], conversion to some religion has to have faith in that religion, conversion solely for creating a ground for some claim of right was like committing a fraud in law and will not be recognized by courts [4], also converting for the sole purpose of marriage, without having any faith and belief or even knowledge about Islam is not valid[5]. However this stand of Allahabad High Court is rectified recently by itself in Salamat Ansari & Ors. vs. State of U.P &Ors (Crl. Mis. Writ Petition No- 11367 of 2020) wherein it held that even if conversion is done solely for marriage but if it is by the free will and volition of an adult of sound mind then it will be valid, because one has a right to choose one’s life partner as a part of the right to Liberty u/ art. 21. The conversion that is invalid is the one done forcefully or without the knowledge of the one converting. All in all it means that the conversion must be bonafide. i.e. the person converting religion must have a change of heart, faith and believe, must have conviction in the tenets of new religion and must not be converted only for some material or immediate benefit as this will amount to religious bigotry and not a bonafide conversion.

Comparison with other similar Laws.

This ordinance is not the first of its kind; laws to protect religious freedom and prohibit unlawful conversion existed even before independence in India like, Indian Conversion (Regulation and Registration) Bill, 1954 as well as were enacted in the late 20th century like, Orissa Freedom of Religion Act, 1967. After this as many as 10 states have enacted Anti-conversion laws, in fact states like Himachal Pradesh and Uttarakhand have enacted such laws as late as in 2019 and in 2018. All these state laws have almost similar provisions as that of ‘love jihad law’, with only a few additions like, giving the family, of the person being converted, a right to file complain against the other person intending to convert, and all these state laws were made to comply with the orders of High Courts and Supreme Court.

The need for this Law Vs. Possible Misuse.

The allegations that the investigations will be subjective and that there is possibility of abuse of this ordinance cannot be a solid, reasonable ground to strike it down, for it will in-fact help and benefit those women who are forcibly converted, there is data to show that unlawful conversion is a reality, like in Kerala between 2006-2012, 2667 women were converted to Islam. Also, the fact that just within few hours of passing of this ordinance in UP, the first complain was registered is proof enough.

Provisions for punishment under this Law.

This ordinance makes religious conversions for marriage a cognizable and non-bailable offence punishable with jail term of minimum 3 years and maximum 10 years with a fine of Rs. 25000 if a minor girl or a woman of SC, ST. In case of mass conversion jail being the same and fine of Rs. 50000 will be imposed. In any other case, jail term will be minimum 1 year and maximum 5 years with Rs. 15000 fine.

Conclusion.

The Law is a good effort to ensure Freedom of Religion but some provisions like the one, giving the right to complain to Family of the girl can be misused by families with orthodox mindset, who are stuck in the perception of superiority of one religion over other and the prevalent corruption in the country which may lead the investigating officer to give false report of the reason for conversion may prove fatal to the right to liberty of these girls. However, the law can work if misleading propaganda is stopped and provisions of it are not used for ulterior motives but only for promotion of a pluralist society where everyone’s choices are respected. If this is not ensured then it is bound to fail.

These conditions for success are not specific to this law but in general for all the laws that are enacted.

Disclaimer : All Rights Reserved to Lexstructor Legal Publication (Lexstructor Legal News & Journal)

References

[1] Rev Stanislaus vs State of Madhya Pradesh and Ors., 1977 (1) SCC 677 [20]

[2] Shafin Jahan vs. Asokan K.M 2018 SC 343

[3] Lilly Thomas v. Union of India, 2000 (6) SCC 224

[4] Rakeya Bibi v. Anil Kumar Mukherjee, ILR 1948 (2) Cal 119

[5] Noor Jahan Begum & Anr. Vs. State of UP & Ors., 2015 (1) ADJ 755

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