‘Love Jihad’ Laws Have No Legal Basis, UP Ordinance Included

Video Editor: Sandeep Suman

(This story was first published on 21 November 2020, and is being republished from The Quint's archives to mark one year since the anti-conversion law in Uttar Pradesh came into effect.)

Every few months, just when it looks like there might just miraculously be a lull in the communal polarisation in this country, the ugly spectre of ‘Love Jihad’ rears its head.

2020 has seen a vicious, dog-whistle-filled Delhi election campaign, the deadliest riots in the capital in 36 years, the communalisation of the COVID pandemic by vilifying the Tablighi Jamaat and even the invention of ‘UPSC Jihad’, so perhaps we should be surprised it took so long for ‘Love Jihad’ to make an appearance.

But have no fear, make an appearance it has. Five BJP-ruled states have touted laws to combat the supposed scourge of 'Love Jihad’ at this time: Madhya Pradesh, Uttar Pradesh, Haryana, Karnataka and Assam.

The process is further along in some states than others. MP supposedly already has a Bill in place, UP’s cabinet has cleared an ordinance, while in Assam, Himanta Biswa Sarma says the BJP will bring in such a law if they come back to power in the state elections in 2021.

What all of them have in common, nonetheless, is that they are wasting their time.

There is zero legal basis for any such law, whether because of the overreach that it would involve, or the fact that any actual illegalities are already covered by existing legislation.

But of course, that’s not really the point of this kind of risible dog whistle, is it?

WHY IS THERE NO NEED FOR A ‘LOVE JIHAD’ LAW?

Let’s begin with the fact that there isn’t even a definition of what ‘Love Jihad’ is.

The central government itself has acknowledged this in the Lok Sabha, saying:

“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.”

It even went on to note that Article 25 of the Constitution provides for the freedom to profess, practice and propagate religion subject to public order, morality and health, and therefore had no objections to the Kerala High Court finding there were no cases of this egregious crime in Kerala.

Attempts to investigate cases of ‘Love Jihad’ in Kerala and Karnataka – even with the NIA roped in – have found no evidence of any crimes. The UP SIT probing alleged ‘Love Jihad’ cases in Kanpur has thus far had to close half the investigations, NDTV reported, while the remaining cases also appear to indicate only consensual relationships.

The National Commission for Women also has no data on this supposed scourge, even after its chairperson spoke of the rising cases of it with the Maharashtra Governor.

It is no surprise, therefore, that the current proposals for these ‘Love Jihad’ laws are also scant on detail. Comments from BJP government officials indicate some sort of focus on religious conversions and concealing identities, but that’s about as much as we have now.

And on both those counts, it remains hard to see why there is a need for any new laws.

Any marriage entered into because of coercion would be void under the various marriage laws in the country, which all require consent from both parties. The same would apply to any marriage entered into under any sort of false pretences.

When it comes to providing some form of punishment, again, there are sufficient existing laws which apply. Some states like MP already have laws against forced conversion (which is, let’s be clear, a crime on its own regardless of any love angle to it). In states without such laws, the offence of criminal intimidation under the IPC would cover this, as it includes forcing someone to do something they are not legally bound to do,

For any situation of false identity, again, there are the offences of cheating and impersonation which can be applied where necessary.

BUT WHAT ABOUT SHAM CONVERSIONS FOR MARRIAGE?

UP Chief Minister Yogi Adityanath highlighted the issue of religious conversions for marriage in connection with ‘Love Jihad’ and referred to a recent Allahabad High Court order on this count. Karnataka BJP leader CT Ravi also referred to it as a reason for bringing in a law on the issue.

But when it comes to ‘sham conversions’ and their connection with a marriage, there is only a limited extent to which the state can intervene.

The Supreme Court in the Lily Thomas case showed the way here, addressing the issue in a context where a Hindu man had converted to Islam just so that he could marry a second (also Hindu) wife – this was considered to be an invalid conversion since it was only a way to avoid his obligations to his first wife.

Now there have been some extremely misguided orders by the Allahabad High Court (including the one referred to by Yogi Adityanath) – which rejected granting protection to inter-faith couples because the conversions were a sham (but which did not, crucially, actually make any ruling on the validity of those marriages) – and the Rajasthan High Court, which tried to lay down some guidelines for conversions for marriage.

However, the fundamental rights to privacy and to practice any religion/faith preclude any actual interference in a situation where the conversion, no matter how much of a sham, has been done with full consent by an adult.

There are many reasons a less-than-meaningful conversion may be opted for – in particular, the difficulties that inter-faith couples have getting marriages registered under the Special Marriage Act (such as the 30 day notice period that allows families and goons to intervene and create trouble).

The rights and wrongs of this choice – in the absence of a Lily Thomas sort of situation – are not anybody else’s business.

HAVE WE FORGOTTEN ABOUT THE AUTONOMY OF INDIVIDUALS?

The right to privacy, as articulated in the Supreme Court’s nine-judge Puttaswamy decision, includes the right to choose a partner, the right to marry, and the right to decisional autonomy.

As long as there is no coercion, that right to decisional autonomy is supreme for a consenting adult, and there is no scope for interference by any outside party – not their family, not the local right-wing goons, and not the government or the courts either.

The Supreme Court recognised this clearly in Hadiya’s case, in case one forgets, where the only relevant consideration there was whether she had decided to voluntarily convert to Islam and get married to Shafin Jahan.

Her father’s objections and the Kerala High Court’s misplaced ideas of parens patriae meant diddly squat, given the intersection of autonomy with the right to practice a religion of one’s choice. And that is what any ‘Love Jihad’ law enacted by any state will bring to the table, from a legal standpoint.

Any such law is going to involve second-guessing the decisions of consenting adults – particularly adult women – and will be an unwarranted invasion of their privacy and an erosion of their agency. It will allow the state to intrude into the lives of any couple that society doesn’t approve of. It will enable and encourage harassment of inter-faith couples.

For all these reasons, any such law which goes beyond punishing forced conversions (or presumes forced conversions), will be struck down by the constitutional courts.

But then again, that was never the point, was it? Thanks to these ‘laws’, Love Jihad is back in the news, and we’re back to discussing this utterly nonsensical concept while the country continues to face far worse real problems.