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Love Jihad laws and Constitutional validity

love jihad legal lock

INTRODUCTION 

Love jihad- It has been created by the media or certain people or who are its supporters.

Love jihad has no meaning in law because no phrase is defined by the constitution of India or any other law in India as a phrase is not defined.

As per the media, it is basically when a Muslim man marries a woman who is from another religion (a Hindu woman gets married to a Muslim man) after that woman is married to this person unlawfully makes that women change her religion and convert to Islam.

 Here are conflicts: few people believe this is love jihad and other fractions believe that this is a case of fraud and nothing else has anything to do with the particular religion for that.

 A Muslim bureaucrat in Kanpur in 1924 was accused of abducting and seducing a Hindu woman and then forcefully converting her but this phrase love jihad came to national attention in the year 2009 because of some developments in Karnataka and Kerala.

Here there are two definitions 

  1. A Muslim man comes and he hides/ conceals his identity and come across in contact with a Hindu girl and they marry together and force this Hindu girl to convert in to Islam.

  Love jihad is basically is a part of a conspiracy by the Muslim men because they hide their identity, they trap the Hindu girls seduce them into marriage force them to convert and produce Muslim children and through this conspiracy the person is trying to convert the Hindu majority India into Muslim majority India 

  1. According to others, the love jihad is imaginary.

The origin of the term love jihad is basically in the mid-2000s there was a campaign that started in postal Karnataka and some parts of Northern Kerala. 

In 2009 an investigation was carried out in Karnataka by the Karnataka criminal investigation department and ultimately Karnataka CID said there is no such love jihad. All these allegations are false.  

Love jihad is a lossless monster. (not exist) 

National commission of women the chairperson said that there is an increase in rising cases of love jihad.

This ordinance is called Uttar Pradesh unlawful religious conversion prohibition ordinance, 2020 this is not the first time the law has been made for any Indian state for that matter.

For unlawful conversion, a law was made in Madhya Pradesh in 1968 and Himachal Pradesh in -2006 and Uttarakhand – 2018. In this particular matter, there have been certain announcements in various courts in India.

CONSTITUTIONALITY 

 If Art-21 talks about the right to life and personal liberty it also talks about the right to live with dignity and the right to privacy.

Art-25- provides every single individual in India not just citizens every single resident in India two-fold fundamental rights.

  1. Freedom of conscience: it is absolute inner most freedom 
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The freedom to choose a religion, the freedom from religion as well.  Once it is outward it becomes free to profess and propagate its own religion.

There are reasonable restrictions:

  • Public order – if you have fundamental right to practice your religion but do not violate public order
  • Forced conversions are violating public order 
  • Orissa and Madhya Pradesh had passed entire conversion laws 

Rev v. Stanislaus v/s state of Madhya Pradesh & Ors

In this case, the father said I have a fundamental right under Art-25 and I have a fundamental right to propagate my religion. I have the fundamental right to convert others into my religion. 

The Supreme court held you have fundamental right to propagate your religion but that doesn’t give you the fundamental right to convert others into your religion

Conversion can be valid only if it is without threat, coercion.

Lily Thomas v/s union of India 2000

A Hindu man married to a Hindu wife divorces his wife and then he changes his religion so that he wants to marry another woman there is no change in his belief but to get married, he is changing his religion. The Supreme Court said this is not valid.

Hadiya case 2017

This girl Hadiya her previous name was Akhila she was a Hindu and then she converted to Islam after that she married this boy shafin Jahan and the father of this girl filed a case and saying there should be an investigation because this is a case of love jihad my daughter has been trapped by a Muslim man and they want to take my daughter to join Islam then Kerala High Court entered in to picture and annulled the marriage and said marriage is illegal. 

If a girl and boy are adults the state has no power to control them to impose their own views on adult couple their life and their responsibility no matter how they want to live their lives even their parents cannot force them to marry that person of their choice It doesn’t matter what religion you are, who you are you can marry whoever you want under the Indian constitution under the laws that we have because the constitution guarantees the person.

This love jihad is gaining currency by Uttar Pradesh and four other states they are trying to bring in a law to curve love jihad and the reason for that was 

Pronouncements by the Allahabad High Court

The Allahabad high court in September 2020 passed a judgment:

The court held that the conversion only for marriage is invalid in the eyes of law. The UP Government relied on this judgment to promulgate this ordinance.

You cannot convert to some other religion only because marriage is not allowed in fact the yogi Adityanath Government while promulgating this ordinance they relied on this judgment.

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After some days of this judgment in November 2020, there was another judgment by Allahabad high court Salman Ansari v. State of UP, Court held that the right to live with a partner of your choice is an intrinsic feature of the right to life irrespective of your religion.

Society and Special Marriage Act

One section of the society says if a Hindu woman marries a Muslim boy what is the need for conversion of Hindu women to Islam why she can’t practise her own religion if they both are really in love with each other why don’t you allow this girl to practice her own religion if you are allowing her to practice her own religion there won’t be any concept such as love jihad.

Another section of the society which says this is some sort of patriarchy denies women and whether or not one practices the religion it’s an individual choice. There is a law that allows for inter-caste and inter-religious marriages without any need for conversion as well that law is the special marriage Act, 1954.

This act was meant to facilitate inter-religious and inter-caste marriages but this law creates huge hurdles that are if a couple is belonging to two different religions, they would prefer that let’s convert rather than doing under special marriages Act that is this act which creates hurdles 

For instance, if a couple A and Z wants to marry under Muslim personal law or Christian personal law or Parsi personal law there is no notice period, the person can go to a mosque or church and get married to each other 

But if the parties want to marry under the special marriage Act then the parties have to provide one month’s notice. 

For instance, the boy is from Andhra Pradesh and the girl is from Uttarakhand special marriage Act stipulates that this marriage can be registered either at Andhra Pradesh or Uttarakhand but the boy’s family are against this marriage so the party cannot apply for marriage in Andhra Pradesh girl’s family is also against this marriage so she cannot apply for marriage in Uttarakhand then the parties run away and if they reach Uttar Pradesh and file in Uttar Pradesh court the UP court will send notice to Andhra Pradesh and Uttarakhand and one of the permanent residences is going to marry in Uttar Pradesh.

Features of ordinance:

 Any kind of unlawful conversion that is not allowed in India or any conversion by the way of fraud. coercion, misrepresentation or marriage is prohibited.

The person who is making that person basically convert to some other religion will be prosecuted and punished under this particular ordinance. And the FIR can be filed by anyone related to the aggrieved by: Blood, adoption, marriage 

There is certain punishment prescribed in the ordinance that is as follows:

  • Normal violation: 1-5 years imprisonment minimum fine of Rs 15000
  • Conversion of Sc/ST/ minor/ women: 2–10-year imprisonment fine of Rs- 25000
  • Mass conversion (2 or more people): 3-10 years imprisonment minimum fine of Rs- 50000
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Certain people will be convicted under this because of the unlawful conversion of some people to other religions. There may be repeated offenders also (Double punishment for repeated offenders) 

There can be certain institutions also who may aid directly convert certain people unlawfully to certain other religions. Now those people whose particular organizations license will be cancelled and if that organization used to get any state grant or any state aid those grants will be annulled.

Under the Indian constitution, we are guaranteed certain fundamental rights and these fundamental rights include the right to freedom of religion as well as the right to live with dignity. So, no law or no court in India can actually prohibit a person from converting to some other religion.

There are certain obstacles that has been created by this Act:

PRE-CONVERSION DECLARATIONS 

The act provides that when a person wants to convert to some other religion, he/ she has to file a declaration with the District magistrate or the Additional district Magistrate at least 2 months before their conversion. it is the responsibility of the District Magistrate or Additional district magistrate to confirm with the police and to investigate whether this particular conversion is happening lawfully or unlawfully and there will be certain people who will be converting but obviously when you convert to some other religion some sort of religious ceremonies take place.

The priest who conducts their religious ceremonies or who basically performs such religious ceremonies will also have to file a declaration with the District Magistrate or the Additional district magistrate at least one month before such a ceremony happens.

Post conversion declarations

The person who is converted/will have to file a post-conversion declaration with the District Magistrate or the Additional District Magistrate 60 days after their conversion.

 Within 21 days you have to physically appear to identify or to prove his/ her identity before the Magistrate or the Additional District Magistrate.

CONCLUSION 

This ordinance is extra-legal because love jihad does not find any mention in the legal text. This is creating some sort of hindrance. We need a proper law to strengthen a law that allows for religious marriages without any need for conversion. We need to strengthen and remove these loopholes in the special marriage Act. 

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