'Love Jihad' and the Indian Judiciary’s Alarming Slide Into Political Rhetoric

Uttar Pradesh court’s recent invocation of the Hindutva conspiracy of “love jihad” led to the life imprisonment of a Muslim man.

Illustration: Arnica Kala/The Quint

In my recent article, I flagged the executive-judiciary bonhomie in the wake of PM Modi’s visit to CJI Chandrachud’s residence for Ganapati puja, highlighting the crisis of reputation facing the Indian judiciary. The purpose of the article was also to draw attention to the judiciary’s aggrandising relationship with a political ideology. This palpable romanticisation of political ideology has, however, now literally entered the courtroom, spilling over to written judgments.

Uttar Pradesh court’s recent invocation of the Hindutva conspiracy called "love jihad", leading to the life imprisonment of a Muslim man, demonstrates the romanticisation in question. The judgment ignored the accused’s plea of foul play, is oblivious to due process, and ignorant of criminal jurisprudence.

Notwithstanding the pretentious political neutrality of the "love jihad" laws, euphemistically referred to as anti-conversion laws, Judge Ravi Kumar Diwakar had no qualms in masquerading islamophobia as legal reasoning.

In support of his "rational" reasoning, he writes, "In love jihad, Muslim men systematically target Hindu women for conversion to Islam through marriage and Muslim men marry Hindu women by pretending to love them to convert them." It is another matter that the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021, however, does not make any reference to "love jihad".

Not one to mince words, Judge Diwakar paints the picture of Muslims as trying to "establish dominance over India under demographic war and international conspiracy." Starved of empirical evidence, the order abounds with communal overtones.

Authors Sreenivasan Jain, Mariyam Alavi and Supriya Sharma in their recent book Love Jihad And Other Fictions: Simple Facts To Counter Viral Falsehoods have extensively investigated the truth behind the fiction of "love jihad".

Debunking the myth with facts and evidence, the book argues that the "love jihad" tag had been unsparingly "applied to a wide spectrum of gender-based crimes, across twenty-five categories: fraud, blackmail, abandonment, intimidation, dowry demands, rape, murder, and so on."

In fact, in February 2020, the Union Ministry of Home Affairs told Parliament, "The term 'love jihad' is not defined under the extant laws. No such case of 'love jihad' has been reported by any of the central agencies."

Continuing the vein of judicial islamophobia, a Karnataka High Court judge, Justice Vedavyasachar Srishananda, recently referred to a Muslim-majority area in Bengaluru as “Pakistan” during a hearing in a landlord-tenant dispute. The Supreme Court did well in taking suo moto cognizance of the matter and the judge later apologised for his comments. (Although the CJI added, rather strangely, "You can't call any part of the territory of India as 'Pakistan'. It is fundamentally contrary to the territorial integrity of the nation.")

Yet, these instances are no longer an aberration and what we are often advised to quickly dismiss as "fringe" thoughts are a testament to the unchecked overriding of personal biases and political ascriptions.

Such instances paint a grim picture of judicial behaviour vis-a-vis Muslims in India where the echelons of an unbiased institution appear to play to the galleries of Hindutva myth-making machines. The tragedy is that the normalisation of the politics of hate has not been cordoned off by the judiciary. One would have expected the Supreme Court to set the ball rolling and put an end to the culture of hate politics against Muslims. That has just not been the case.

On the contrary, the Supreme Court appears to have adopted a rather lackadaisical approach. The court has either dodged the questions of hate and violence against Muslims or ended up being tokenistic. The recent intervention in the “bulldozer justice” case is just an addition of a coin in the purse of such tokens amassed by the court. The promise of "pan-India guidelines" in the interim order on 17 September 2024 is as futile and irrelevant as they have been for lynchings and hate speech.  

In a one-off exception, in the aftermath of demolitions in Haryana's Nuh last year, a bench of the Punjab and Haryana High Court dared to ask if the demolitions targeting buildings mostly owned by Muslims was an “exercise in ethnic cleansing.”

Taking strong exception to statements made by the state's home minister that “bulldozers are part of ilaaj (treatment) since the government is probing communal violence”, the bench observed:  “Apparently, without any demolition orders and notices, the law and order problem is being used as a ruse to bring down buildings without following the procedure established by law. The issue also arises whether the buildings belonging to a particular community are being brought down under the guise of a law and order problem...”

The case was later assigned to a different bench for unknown reasons.

Most instances, however, indicate a troubling pattern of the judiciary's inaction. Worse still, in some cases, it shows the judiciary pandering to right-wing conspiracy theories against Muslims.

At a time when courts are required the most to resist the politics of polarisation and protect those living on the margins, they have chosen to be at their weakest. The courts have descended into constitutional oblivion, abdicating the responsibility to speak truth to power, and (to borrow the twentieth-century legal philosopher Ronald Dworkin) interpret the law. 

(Burhan Majid teaches legal and constitutional theory at the School of Law, Jamia Hamdard, New Delhi. He tweets at @burhanmajid. Views are personal.)