The murder of a college student in Faridabad district of Haryana on October 26 by a member of the minority community has given an opportunity to governments led by the Bharatiya Janata Party (BJP) tomull over the need for a law to curb the phenomenon of “love jehad”, a term that owes its origins to the Hindu Right itself. “Love jehad”, according to the more strident strands of the Hindu Right, refers to a situation, an imagined one in particular, where Muslim men, by strategic design, entrap unsuspecting Hindu women, marry them and convert them to Islam. The larger objective of such interfaith link-ups is, according to such sections, to alter the demography of India by a process of conversion, thereby reducing Hindus to a purported minority. Several BJP-ruled States such as Haryana, Uttar Pradesh, Madhya Pradesh and Karnataka have declared their intent to bring forth a law to curb love jehad.
As it transpired, the Haryana incident was more a case of unrequited love and rejection gone horribly wrong which was given a communal twist. Rejection-inspired attacks as in this case have not been uncommon. There have been scores of incidents where young, misguided men of all denominations have resorted to violent acts against women, ranging from throwing acid to disfigure women to outright murder, following rejection of their one-sided expressions of affection.
Right-wing groups and a section of the media gave a deliberate communal tinge to the Faridabad incident even as the family members of the accused rejected the theory of love jehad. The police, which promptly arrested the accused and his accomplice, preferred not to describe the incident as a case of love jehad even though the BJP government, including Home Minister Anil Vij, was quick to jump to such a conclusion. He said that based on media reports and the statement of the girl’s kin alleging love jehad, a Special Investigation Team had been set up to probe the incident.
Law against conversion
Speaking in the Assembly in the first week of November, Anil Vij stated that he had asked the Home Department to get data from the date of the formation of Haryana on all instances of religious conversion following marriage. He also said he had requisitioned information from Himachal Pradesh, also a BJP-ruled State, which had apparently enacted a law on love jehad. However, the Minister was wrong in that the said law was not on love jehad but on conversions by force. The Freedom of Religion Bill, 2019, the Himachal Pradesh Assembly has passed amends a piece of legislation enacted in 2006 and includes stringent provisions against such conversions. The term “love jehad” does not feature anywhere in that. The Indian Penal Code too does not recognise love jehad as an offence.
According to Section 3 of the Himachal Pradesh law, “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, inducement or by any fraudulent means or by marriage; nor shall any person abet or conspire such conversion.” It also lays down that any marriage done for the sole purpose of religious conversion may be declared null and void by a court on a petition by either party. If the person is reconverted to the parent religion, it will not be considered as conversion. Those found contravening the section will face imprisonment for one year, extendable to five years with a fine. Where violation of Section 3 involved the conversion of minors, women or a person from Scheduled Caste or Scheduled Tribe groups, the punishment ranges from a minimum of two years’ imprisonment extendable up to seven years. Section 5 of the Act deems that marriages conducted for the sole purpose of conversion will be declared null and void.
This is not all. Section 7 of the Act, with the intriguing title of “Declaration before conversion of religion and pre-report about purification Sanskar”, lays down that anyone who desires to be converted to another religion has to give a declaration one month in advance in a prescribed proforma to the District Magistrate or an Executive Magistrate authorised by the District Magistrate of his intention to convert his religion on his own volition or free consent or without any force, coercion, undue influence, inducement or fraudulent means. No notice is required for the purpose of reconversion to the parent religion. The priest conducting the conversion ceremony will also be required to give one month’s advance notice to the district administration. The District Magistrate will conduct an inquiry to ascertain the intention, purpose and cause of the conversion. If no prior notice is given to the authorities, the conversion will be considered null and void. All offences are cognisable and non-bailable. The burden of proof is on the person who gets converted and on the facilitator of the conversion.
“Erroneous” order
Interestingly, it was a September 23 order of the Allahabad High Court that spurred the demand for a law on love jehad. An interfaith couple sought the court’s intervention to restrain the police and the girl’s father from interfering in their marriage. The court declined to entertain the petition, saying that the petitioner (a Muslim girl) had converted her religion and married within a month’s period which showed that she had converted solely for the purpose of marriage. It ruled that conversion for the sake of marriage was invalid.
It relied on a 2014 judgment (Noor Jahan Begum @ Anjali Mishra &Anr vs State of U.P. and Ors.) of the same court which had dismissed a clutch of petitions seeking protection from the court after conversion to another religion. The petitions involved conversion of Hindu girls to Islam after marriage. The court had to decide whether the conversion of a Hindu girl to Islam after marriage to a Muslim boy without having any knowledge, belief or faith in Islam would be considered valid. The court ruled that such conversions were invalid.
The High Court judge also referred to a Supreme Court order (Lily Thomas vs Union of India) which held that the conversion of a person to Islam could only be bona fide if he/she was a major and of sound mind and embraced Islam out of free will and because her/his faith in the Prophet Muhammad and the oneness of God (Allah). If a conversion is not inspired by religious feeling and undergone for its own sake, but is resorted to merely with the objective of creating a ground for some claim of right or as a device adopted for the purpose to avoid marriage…, the conversion shall not be bona fide, the court said. It ruled that there should be a “change of heart and honest conviction in the tenets of the new religion in lieu of the tenets of the original religion”.
Taking a cue from the High Court order, and while addressing a rally in the run-up to the byelections, Uttar Pradesh Chief Minister Yogi Adityanath declared that he would bring a law to ban “love jehad”. He warned people to mend their ways and literally issued a threat at the rally to eliminate them (Ram Naam Satya hai kiya jayega, meaning their last rites would be conducted) if they failed to do so.
Meanwhile, the High Court order came in for criticism from organisations such as the All India Democratic Women’s Association (AIDWA). The High Court’s refusal to grant protection to the young couple was totally erroneous, it said. Rather than “provide protection against violence and all kinds of criminal charges which could follow”, the court “tangentially went into the validity of their marriage”, AIDWA office-bearers Malini Bhattacharya and Mariam Dhawale and legal adviser Kirti Singh said in a statement. They said there were previous judgments where couples had been granted protection and courts in Uttar Pradesh themselves had advised couples to register their marriages under civil law. “This court, however, refused to protect this couple though it must have known the widespread prevalence of crimes and killings in the name of honour,” the statement said.
In fact, the Supreme Court, in Lata Singh vs State of U.P. (2009), taking note of the harassment of, threat to, and violence against young women who married outside their caste or faith, had directed State administrations and the police to ensure that such couples were not harassed and ordered them to initiate criminal proceedings against those who either issued threats or committed or even instigated violence.
According to AIDWA, Yogi Adityanath took advantage of the judgment to once again declare a war against the so-called “love jehad” and threaten any Muslim boy who married a Hindu girl after conversion with possible death.
Even the National Investigation Agency had found little evidence of the prevalence of love jehad. “The BJP is against marriage by choice, specially inter-caste and inter-religious marriages. The acute misery and suffering to young couples this has caused and continues to cause must be addressed,” stated AIDWA, adding that it was high time that the Special Marriage Act was amended without any delay to allow young adults to marry. It also reiterated a long-standing demand for a separate law to validate relationships and marriages by choice and punishment for those who employed cruel and inhuman methods to stop these relationships.
The Hadiya Case
Kerala is among those States where time and again random allegations of love jehad have been made by sections of the Hindu Right. In 2018 the Supreme Court laid down the law in no uncertain terms in the famous Hadiya vs State of Kerala case. In 2016, the father of a young woman called Akhila Asokan filed a habeas corpus petition in the Kerala High Court alleging that his daughter had gone missing. She appeared in the court and declared that she had embraced Islam of her own free will. The father also alleged that she had been forcibly converted and radicalised, a charge that was echoed by the Hindu Right as well. The same year in December, Akhila, now Hadiya, informed the court of her marriage. The Kerala High Court did not view this favourably and, concluding that the “marriage was a sham and of no consequence”, annulled the same. The annulment was later challenged in the Supreme Court which gave a favourable verdict, that it was a marriage of two consenting adults and the state had little business to enter into private law. In her own affidavit, she had stated that she had embraced Islam and married Shafin Jahan on her own free will.
“The right to change of faith is part of the fundamental right of choice,” ruled a three-judge bench of the Supreme Court on March 8, 2018, comprising the then Chief Justice Dipak Misra and Justices A.M. Khanwilkar and D.Y. Chandrachud. In the historic order, the court ruled that “social values and morals have their space but they are not above the constitutionally guaranteed freedom. The said freedom is both a constitutional and a human right. Deprivation of that freedom which is ingrained in choice on the plea of faith is impermissible.… The realisation of a right is more important than the conferment of that right. Such actualisation indeed ostracises any societal notoriety and keeps at bay patriarchal supremacy.”
Justice Chandrachud, in a separate but concurring opinion, held that “how Hadiya chooses to lead her life is entirely a matter of her choice”. The right to marry a person of one’s choice was integral to Article 21 of the Constitution, he said. Each individual had a protected entitlement in making the choice of partner inside and outside marriage, he said.
In February 2020, G. Kishan Reddy, Union Minister of State for Home, reported to the Lok Sabha that there were no love jehad cases in Kerala. He also referred to Article 25 of the Constitution that gave the freedom to profess, practise and propagate religion subject to public order, morality and health.
Undoubtedly there is a rise in inter-caste and interfaith marriages which self-styled custodians of culture and society loath. The rise in honour-related crimes has been one terrible consequence of such marriages and relationships. There is no law to combat honour killings, and there is no political or social campaign to encourage inter-community and interfaith marriages. There is also no census data compiled on interfaith marriages.
According to data extrapolated from the India Human Development Survey (2005) by researchers of the Indian Institute of Population Sciences, it was concluded that 2.21 per cent of women in the 15-49 age group had married outside their religion. Inter-religious marriages tended to be highest in the 15-19 age group than in other age groups. Urban areas showed a relatively higher prevalence than rural areas.
According to a news agency report quoting marriage data from revenue records in Delhi, between 2016 and 2018, on an average, 355 marriages were registered under the Special Marriage Act. In 2019 alone, 598 of the total 19,250 marriages registered between January and September were under the Special Marriage Act, indicating an increase in interfaith marriages. In September 2019, the Supreme Court issued a curious order where it said that there was nothing wrong in interfaith marriages and inter-caste marriages and that they were “good for society”, but the marriage should be bona fide and the girl’s interest should be protected and that the man should be loyal to her.
All marriages in India can be registered under the personal laws of each religion or under the Special Marriage Act, 1954, which specifically allows two persons from different religions to marry. The law does not have any condition that the persons have to be acquainted with their own religion or that of their partners before registering under the Act. The only condition is that both parties must be citizens of India and of marriageable age. The freedom to practise any religion is also enshrined in the Constitution. Yet there are at least 10 States that have anti-conversion laws. But, of late, the outcry over love jehad has tended to become shriller.
Jewellery brand trolled
In November, things took an ugly turn when Tanishq, a leading jewellery brand from the stable of one of the oldest industrial families in India, took down its advertisement called “Ekatvam” where a Muslim woman was shown organising a baby shower for her Hindu daughter-in-law. This promoted love jehad, said protesters on social media, posting virulent messages calling for a boycott of the products. It promoted love jehad, railed trolls on social media, as it was a Hindu daughter-in-law in a Muslim family and not the other way around. They called for a boycott of the jewellery brand with some sections labelling it as “creative terrorism” and “selective secularism”. Significantly, Ekatvam, the tagline of the advertisement, is a Sanskrit term meaning “unity or oneness with the Divine”.
According to a carefully drafted statement by the brand, “The idea behind the Ekatvam campaign is to celebrate the coming together of people from different walks of life, local communities and families during these challenging times and celebrate the beauty of oneness. This film has stimulated divergent and severe reactions, contrary to its very objective. We are deeply saddened by the inadvertent stirring of emotions and withdraw this film keeping in mind the hurt sentiments and well-being of our employers, partners and store staff.”
Interestingly no senior functionary of the government, including the Information and Broadcasting Minister or the Union Home Minister, assured the brand that action would be taken against the trolls or deal with the perceived threat to the employees, partners and stores of the jewellery brand.
Often, these outcries over “love jehad” coincide with the onset of elections. It came up in 2013 in Muzzafarnagar, western Uttar Pradesh, which culminated in large-scale violence against the minority community and created an unprecedented communal rift. With byelections in as many as 56 Assembly constituencies across 11 States and elections to the 243 seats in the Bihar Assembly, there was much at stake for the BJP. Issues like love jehad just about come in handy to have a polarising effect.
Yet it is a settled issue, as Justice Chandrachud pointed out in his concurring order in the Hadiya case, that “the choice of a partner within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy which is inviolable. Neither the state nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters. They form the essence of personal liberty under the Constitution.” A marriage, he said, can be dissolved at the behest of the parties to it, by a competent court of law.
Therefore, the battle cry of love jehad raised by BJP-ruled States time and again appears totally incongruous and outlandish with several significant and settled apex court observations on the issue of the right to choice as elucidated in the Constitution.
(T.K. Rajalakshmi is Senior Deputy Editor with Frontline. Article courtesy: Frontline.)
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Editorial addition: Another important article in the Wire, related to this issue, headlines: HC Overturns ‘Conversion Only for Marriage’ Judgment Yogi Had Cited to Justify ‘Love Jihad’ Law. Below is an extract:
In an important judgment with negative political implications for the Adityanath government’s desire to criminalise inter-faith marriages involving conversions, the Allahabad high court has denounced a previous single-judge bench decision that religious conversions only for the sake of marriage are unacceptable, saying that decision was “bad in law”.
That judgment, the division bench of the Allahabad high court said on November 11, does not take into account the right to life and personal liberty of mature adults. The bench was referring to the 2014 decision in Noor Jahan Begum @ Anjali Mishra and Another vs. State of U.P. and Others, which was followed in Priyanshi @ Km. Shamren and others Vs. State of U.P. and Another in September 2020.
Adityanath had referred to the September 2020 judgment at an election rally in Jaunpur recently, and said, “This is why our government has decided that we will act to stop love jihad in a firm way.”
Apart from the fact that the UP Police has found no evidence of what Adityanath calls ‘love jihad’ in the state, the legal crutch the chief minister was leaning on has now been taken away by the high court.
“To disregard the choice of a person who is of the age of majority would not only be antithetic to the freedom of choice of a grown-up individual but would also be a threat to the concept of unity in diversity,” a bench of Justices Pankaj Naqvi and Vivek Agarwal said.
“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,” the judges also said.
The bench was ruling on a petition filed by Salamat Ansari, who married Priyanka Kharwar/Alia. Priyanka’s father had filed an FIR against Salamat, saying that his daughter had been kidnapped and had abandoned Hinduism to marry Salamat.
The bench said that it did not see Salamat and Priyanka as a Muslim and a Hindu, but as two adults who had chosen to spend their lives together of their own free will, and said they were happy together. The FIR filed by Priyanka’s father must be quashed, the court said, as it appears to have been filed “prompted by malice and mischief only with a view to bring an end to marital ties”, LiveLaw reported. The bench said:
“We do not see Priyanka Kharwar and Salamat as Hindu and Muslim, rather as two grown-up individuals who out of their own free will and choice are living together peacefully and happily over a year. The Courts and the Constitutional Courts, in particular, are enjoined to uphold life and liberty of an individual guaranteed under Article 21 of the Constitution of India.
…Right to live with a person of his/her choice irrespective of religion professed by them is intrinsic to right to life and personal liberty. Interference in a personal relationship, would constitute a serious encroachment into the right to freedom of choice of the two individuals.”
The bench also noted that Priyanka’s age was not under dispute, and she was an adult who could legally make her own decisions, including choosing to convert to Islam.
The state had argued in favour of the woman’s father, saying that precedent held conversion only for the sake of marriage was not acceptable. The ASG relied on the two judgments mentioned above to make this case. The court, however, said that these two judgments were “bad in law” – and that the Supreme Court had made it clear that the personal liberty of all adults must be respected.
The Allahabad high court cited the Supreme Court’s judgment in Shafin Jahan v. Asokan K.M (2018) (on the conversion and subsequent marriage of Hadiya). “The apex court has consistently respected the liberty of an individual who has attained the age of majority,” the high court said.
(Courtesy: The Wire.)
