Is Constitutionality Intact with Love Jihad Laws???

 

What is ‘Love Jihad’?

The term ‘Love Jihad’ is coined by propagators of Hindutva. According to such propagator, Muslim men convert, or attempt to convert, religion of Hindu girl into Muslim by means of allurement, misrepresentation, force or fraud etc.

On the contrary, activists say that there is no such thing, termed as Love Jihad, exist in society. It is just a propaganda campaign run by miscreants for political gain. Moreover, they say that nomenclature of Love Jihad is wrong. In the term ‘Love Jihad’, ‘Jihad’ means war or fight against something. So, ‘Love’ and ‘Jihad’ together means war or fight against love and there can never be a war against Love, as it is a divine word.

Many states government such as Uttar Pradesh, Madhya Pradesh, Uttarakhand, Himachal Pradesh etc. have enacted law against love jihad. Few states such as Orissa (1967), Arunachal Pradesh (1978) etc. already have anti conversion laws. This practise of converting people of one religion to another by force, undue influence etc. is being witnessed in one form or the other form from the ancient time. Many kings like Tipu Sultan, Aurangzeb forcibly converted Non - Muslim to Muslim. Moreover, attempt of forceful religion conversion of Indians into Christian by Britishers was one of the main reasons for Revolt of 1857 which was first war of independence for India.

In this article, we will in-depth analyse Love Jihad Law of Uttar Pradesh, Madhya Pradesh, Uttarakhand, Himachal Pradesh. These state’s love jihad laws have been challenged in the Supreme Court of India on the grounds of their constitutional validity. According to these laws, “No person shall convert or attempt to convert, either directly or otherwise, any other person from one religion to another by use of misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage nor shall any person abet or conspire such conversion.”

Punishment for Conversion by means of force, fraudulent means, undue influence etc.
	Himachal Pradesh	Madhya Pradesh	Uttar Pradesh	Uttarakhand
General Person- Imprisonment/ Fine	1-5 years + fine	1-5 years + Rs. 25,000 or more	1-5 years + Rs. 50,000 or more	1-5 years + fine
Minor, Women, SC/ST- Imprisonment/ Fine	2-7 years + fine	2-10 years + Rs. 50,000 or more	2-10 years + Rs. 25,000 or more	2-7 years + fine
Mass conversion	NA	5-10 years + Rs. 1,00,000 or more	3-10 years + Rs. 50,000 or more	NA
Conceal Religion to Marry	NA	3-10 years + Rs. 50,000 or more	NA	NA
Second or Subsequent offence again	NA	5-10 years + fine	Liable for every such subsequent offence to punishment not exceeding double the punishment provided under said Ordinance	NA

 

These four laws also make offence of conversion as non bailable and cognizable offence

How we are going to analyse?

All state acts are almost similar. So, we will see each state’s law from following point:

• Who can complain?
•  Scope of terms such as fraud, allurement, undue influence etc.
• Procedure for Conversion
•  Constitutionality of Acts
• Burden of Proof
•  Reconversion

Let’s address each point one by one.

• Who can complain? – As per section sec 4 of UP Love Jihad Law, “any aggrieved person, his/her parents, brother, sister, or any other person who is related to him/her by blood, marriage or adoption may lodge FIR of such conversion which contravenes the provision of section 3.”  Many criticisms have been raised against this section. Why should anyone’s uncle or aunty have the right to lodge FIR? As, inter-religion marriage is still not accepted in our society. So, there will be many relative who will not be happy from such marriage and will try to stop it by lodging FIR. This right to lodge FIR should only be given to aggrieved person’s parents or real brother or sister and if in case such aggrieved person does not have parents or real brother or sister, then in that case legal guardian should have right to lodge FIR.

 

According section 4 of the Uttarakhand Love Jihad Law, any aggrieved person, his/her parents, brother, sister have the right to lodge FIR.

 

Provided that, where aggrieved person or his brother or sister are under the age of eighteen years, or are idiot or lunatic, or are from sickness or infirmity unable to make a complaint some other person or by any other person who is related to him by blood, marriage or adoption, a complaint may be made on his behalf with the leave of the Court.

 

Love Jihad laws of Madhya Pradesh and Himachal Pradesh do not have such provision.

 

• Scope of terms such as fraud, allurement, undue influence etc.- Scope of the terms such as allurement, fraud, undue influence, force, coercion, misrepresentation and inducement is very wide according to definition given under the four acts. For example:

 

1.      Allurement – This term is defined as “‘Allurement’ means and includes offer of any temptation in the form of any gift or gratification or material benefit, either in cash or kind or employment, free education in reputed school run by any religious body, easy money, better lifestyle, divine pleasure or otherwise”

 

Now, as per this definition,

Will giving bouquet as gift to another religion girl come under allurement?

 Or

Will going in car with a girl of another religion for long drive come under allurement?

 

Since, scope of the terms is wide. So, it can be used to cause trouble to innocents. There have been many instances reported in the news where people by means of such laws caused trouble to innocents couple.

 

• Procedure for Conversion – All the four acts have almost similar procedure for conversion. Only time of submission of declaration application varies like for submitting declaration application by individual or priest etc. Let see step by step whole procedure for conversion.

 

Step 1: Person who desires to convert shall submit declaration to DM, or any other officer specially appointed for the same, in the prescribed form stating desire to convert voluntarily and with free consent.

 

Step 2: Religious Priest who intend to convert any person shall give notice, in such form as may be prescribe, for the same to DM of district where such conversion is proposed to be organised.

 

Step 3: District Magistrate shall conduct enquiry through police with regard to real intention, purpose and cause of the proposed religious conversion.

 

Contravention of Step 1 and Step 2 will render conversion null and void except in case of Madhya Pradesh love jihad law.

 

Uttar Pradesh Government goes one step further and provide provision for the Declaration post conversion of religion, under sec 9 of respective act. According to which, after converting, converted person has to send copy of declaration within 60 days, from date of conversion, to the District Magistrate of the district where he resides. After which District Magistrate will exhibit declaration, containing details such as Birth date, permanent address etc. on the notice board till date of confirmation of identity. Before the confirmation of identity every person is free to raise objection

Penalties for violating the Procedure for conversion
	Himachal Pradesh	Madhya Pradesh	Uttar Pradesh	Uttarakhand
Individual - Imprisonment / Fine	3 months – 1 year + fine	Nil + Nil	6 months – 3 years + Rs. 10,000 or more	3 months – 1 year + fine
Convertor - Imprisonment / Fine	6 months – 2 years + fine	3 – 5 years + Rs. 50,000 or more	1-5 years + Rs. 25,000 or more	6 months – 2 years + fine

 

• Constitutionality of Acts: Various social activists, lawyers and politicians have said that Love Jihad Laws of aforementioned states violates fundamental rights such as Art. 14, Art. 15 (1), Art. 21 and Art. 25 (1) of the Constitution of India, 1950.

 

Article 14 states that state will not treat any person unequally and will also provide equal protection of law. The law would apply to people of all religions equally and would ban any kind of religious conversions for marriage. Merely because a law applies to persons of all religions, would not make the law fulfil the guarantee on equality. In Loving v. Virginia (1967), too, merely because the law banned interracial marriages by persons of all races, the law was not held to be equal. The Uttar Pradesh ordinance violates the constitutional guarantee of equality because making religious conversions the sole ground for terming the marriage as void or for imposing the onerous requirements that parties in an inter-faith marriage have to comply with, such as giving prior notice of conversion and a post-conversion notice of declaration, is discrimination on the ground of religion. Our equality guarantees in the Constitution demand that all persons have equal protection of the law under Article 14. This goes together with the guarantee of non-discrimination under Art 15 which mandates that the state shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth or any of them. Imposing such restrictions on marriage only on the ground of religion amounts to discrimination and a violation of the right to equality.

 

Article 21 states that no person shall be deprive of life and personal liberty. Under the sub heading of ‘Procedure of Conversion’, I have already explained how person who desires to convert into another religion has to submit declaration to DM and enquiry will be conducted by police. Moreover, under Uttar Pradesh’s love jihad law under sec 9 (2), it is mandatory for the DM to exhibit such declaration on the office notice board which is accessible by everyone. As per sec 9 (3) of the UP’s Love Jihad Law, such declaration contains details such as date of birth, permanent address, and the present place of residence, father’s/husband’s name, the religion to which the convert originally belonged and the religion to which he has converted, date and place of conversion and nature of process gone through for conversion. All these clearly infringe right to life, person liberty and right to privacy enshrined under art. 21.

 

In the case of KS Puttaswamy vs Union of India (2017), Supreme court held that Right to privacy is the fundamental right under art. 21 and it also said that it is the integral part of the personal liberty. Further held that “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.”

 

In case of R. Rajagopal v. State of Tamil Nadu (1994), the court while explaining Right to Privacy held that it is a right to be let alone and a citizen has the right to safeguard the privacy of his own, his family, marriage, procreation, motherhood, childbearing and education among other matters.  And also, further held that no one can publish anything concerning the above matters without his consent whether truthful or otherwise and whether laudatory or critical.

 

Sec 6 of Acts of MP, UP, Uttarakhand and sec 5 of act of HP states that “Any marriage which was done for the sole purpose of conversion by the man of one religion with the woman of another religion either by converting himself before or after marriage or by converting the woman before or after marriage may be declared null and void by the Family court”.

 

Now, as per art. 25 (1) all person shall have freedom of conscience which means everyone is free to choose any religion or faith as well as not to choose any religion or faith. If any person chose any faith or religion, then he is free to profess, practice and propagate it. Art. 25(1) encompasses all atheist, theist, agnostic. However, such freedom is subjected to public order, morality and health.

 

Suppose there is A (Hindu male) and B (Muslim female). Both A and B want to marry each other. But A’s parents want their son to marry only to Hindu woman. Now, as B believes in all religion or B is secular. B says that her religion is Indian and her holy book is Constitution of India. For her, it does not matter whether she remains Muslim or converts to Hindu. Same are the views of B’s parent. Then, if B converts to Hindu religion with free consent.

 

What is harm in this? As, Art. 25(1) confers her freedom of conscience.

 

Uttar Pradesh Government claims that they enacted such law on the basis of Allahabad High Court judgement in Noor Jahan case [Smt Noor Jahan Begum @ Anjali Mishra and Another vs. State of U.P. and others (2014)] and Priyanshi case [Priyanshi @ Km. Shamren and Others V. State of U.P. and Another (2020)]. In Noor Jahan case and Priyanshi case, Allahabad High Court held that “Religious conversion Just for the purpose is Unacceptable”. But later in the case of Salamat Ansari & another Vs. State of U.P. & another (2020), Allahabad High Court held that “We hold the judgements in Noor Jahan and Priyanshi as not laying good law”

 

Government should also amend sec 6 and 7 of the Special Marriage Act, 1955 (SMA). According to sec 6 (2) and 6(3) of SMA, it is mandatory to exhibit notice on conspicuous board at DM office in the district of both parties for 30 days. Within such 30 days any person can raise objection as per section 7 of SMA. Such provisions make things worse for the couple of different religion to get married under SMA. There have been many cases reported in news where people take information of couple who belong to different religion from notice board and then harass them. So, they find it easier to first convert to one religion and then get married according to such religion’s custom and tradition.

 

• Burden of Proof – As per sec 12 of acts of UP, HP, MP and sec 13 of act of Uttarakhand, burden of proof lies on accused. The problem in this is how anyone can proof that he wishes to convert his religion voluntarily and with free consent and without any force, coercion, undue influence or allurement. No criteria are given for proving that conversion is voluntarily and with free consent. As per opinion of activists, lawyer etc. burden of proof should be on complainant.

 

• Reconversion – In all the four acts reconversion is exempted from the provisions of this sections. So, if anyone by means of force, coercion, undue influence or allurement reconverts one person to his parental religion, then it will be not considered as offence.

 

Author views:

Up till now no strong evidence have been found which corroborate theory of Love Jihad. In investigation conducted by National Investigation Agency (NIA) during Hadiya case found no evidence of love jihad. But as per few news channels there are documentaries in which victim tells how she became victim to Love Jihad. Also, in our country history there are number of instances where conversion is done forcibly. So, there is a need of law which penalise such forceful conversion. But it has to be kept in mind while legislating that no fundamental rights are violated, as they are being violated in current love jihad laws.

According to me, government should make following amendments without which such laws are draconian laws:

• Firstly, all religion should abolish rule according to which if two couple belong same religion then only, they can get married according to rituals and customs of religion.

For example: A (Girl) and B (Boy) want to marry each other. A is Muslim and B is Hindu. Now, if they want to marry according to Hindu custom, then they cannot do so. Because according to rules of Hindu religion, only if both A and B belong to Hindu, then only they can get married as per Hindu rituals and customs.

Similar rule exists in all religion. Hence, this rule should be abolished  

• No declaration should be required and no details should be exhibited on the notice board. Also, no enquiry shall be conducted unless complaint is made.

• Right to lodge complaint should be given to the person who wishes to convert or has already converted.  Right to Privacy is the fundamental right and no one else should be allowed to interfere with it.

• Burden of Proof should be decided by court after the enquiry on whom burden of proof will lie.

• Government should amend sec 6 & sec 7 of Special Marriage act, 1954. As, it is doing no good but facilitating miscreant to harass couples.

• Government should also promote inter-religion marriage. It will help to reduce differences between different religion and will promote cordial relations. As result of which, discrimination on grounds of religion will reduce.

 

Author – Satwik Sharma