Every day brings a new example of the true implications of the Uttar Pradesh government’s new ‘Love Jihad’ ordinance.
The ostensible framing of the law as meant to counter forced conversions has been proved for what it is with the cases from Lucknow, where no family member complained about an inter-faith marriage (where neither the Muslim husband nor the Hindu wife had converted) as well as the case from Moradabad, where the wedding had taken place five months ago.
Even marriages between Muslims without any question of conversion are now being disrupted, as was seen in Kushinagar, demonstrating once again the scope for harassment and misuse such laws would have.
Despite that, UP is not alone: the BJP-ruled states of Karnataka, Madhya Pradesh, Haryana and Assam are all at various stages of bringing in such laws.
The Indian Judiciary Can Learn From the US Supreme Court
Which means that the best hope for stopping these kinds of laws and the discrimination and horror they will cause, is the Indian judiciary. While the courts have not had to deal with cases challenging any of these laws just yet, there are sufficient grounds to challenge them under Indian law, especially on individual freedoms of privacy and the right to practice a religion.
Even if the laws are struck down, there remains the risk that this will become a holding action, with the courts striking down such laws and provisions on narrow constitutional grounds, but not addressing the underlying narratives that these laws are built on. The state governments enacting these laws have already tried to disguise these, by making the laws on paper apply to all religions, and not expressly ban inter-faith marriages.
A failure to address the issues in a comprehensive manner, however, will mean that the narratives will only continue, and similar laws will spring up, Hydra-like, every time a law is struck down.
Luckily, the Indian courts do have a useful example to learn from when addressing the inevitable challenges to the ‘Love Jihad’ laws: the US Supreme Court’s powerful decision in Loving v Virginia in 1967, where it struck down the 16 remaining ‘anti-miscegenation’ laws of various states in the US.
Here’s how that landmark case was decided, and how the US Supreme Court ensured the disingenuous justifications for these laws were firmly put to bed.
What Was Loving v Virginia About?
In 1958, a mixed-race couple, Mildred Jeter and Richard Loving got married in the state of Virginia. At that time, white supremacy remained rife in the US, especially in the South. This was not just a matter of social attitudes, however: racial discrimination and segregation was built into laws in states like Virginia, where they had specific statutes banning racial marriages.
The couple was charged for the concerned offence under the Virginia code, and the judge who was there at the initial stage of the trial opined that -
“Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”
The basis of laws like this, preventing marriages between blacks and whites, and other races in the US (hence the term-anti-miscegenation) were thus clearly built on a foundation of racial classification, regardless of whatever other justifications were used on occasion to argue in their favour, from public health to law and order, to coercion.
The Racial Code Of Virginia
Like the UP ‘Love Jihad’ ordinance, the text of the Virginia Code (Sections 20-59) included extensive and broad provisions, which prohibited marriages despite clear consent. The way they were drafted also enabled harassment of couples before marriage, much like the way the UP ordinance is being used even in cases where there is no conversion actually taking place.
Consider this provision for example, the one under which Jeter and Loving faced criminal action:
“Leaving State to evade law – If any white person and coloured person shall go out of this State, for the purpose of being married, and with the intention of returning, and be married out of it, and afterwards return to and reside in it, cohabiting as man and wife, they shall be punished as provided in Section 20-59, and the marriage shall be governed by the same law as if it had been solemnised in this State. The fact of their cohabitation here as man and wife shall be evidence of their marriage. If any white person intermarry with a coloured person, or any coloured person intermarry with a white person, he shall be guilty of a felony and shall be punished by confinement in the penitentiary for not less than one nor more than five years.”
Initial attempts to get their conviction were unsuccessful, including at the Virginia Supreme Court (the equivalent of an Indian high court), which led them to file an appeal in the Supreme Court of the United States.
The eventual verdict striking down Virginia’s (and other similar) law was not a surprise in one sense: when it came to personal liberty, the US Supreme Court had by now developed a pretty strong jurisprudence against intrusive state intervention, saying in Meyer v State of Nebraska as far back as 1923 that the:
“State may do much, go very far, indeed, in order to improve the quality of its citizens, physically, mentally and morally, is clear; but the individual has certain fundamental rights which must be respected.”
The Underlying Issue of Racial Discrimination
But to take an approach based solely on an individual’s right to make such choices would ignore the bigger backdrop to these legislations.
As racial discrimination was so thoroughly embedded in the roots of the society that time, the State’s contentions were totally based on social backdrop. The argument made by the State was that the punishments under the law technically applied to both the whites and the blacks for violating it, and so it was not ‘discriminatory’ in nature.
When the court questioned the State on the distinction on which the separation or classification was sought between ordinary marriages and inter-race marriages, the State had no logical reasoning for this which could stand any scrutiny – the old eugenic studies about races had been thoroughly discredited even by then.
A similar exercise has to also be conducted in India when it comes to any law that creates a distinction or separation between groups of people: you have to establish an ‘intelligible differentia’ which means a rational nexus with an object sought, to justify a law like this.
Faced with the court’s objections, Virginia took a line seen by Indian governments as well (see for instance the Centre’s defence of the CAA): arguing that despite claims that the government’s evidence/reasoning is faulty, there remains an alternate view, and consequently, the court should refer to the wisdom of the state legislature in adopting its policy. Which in this case, was of discouraging interracial marriages.
Outdated Precedent Not Grounds to Prevent Action Now
Virginia also relied on another argument which we are likely to see raised by states like UP when defending their ‘Love Jihad’ laws: an old judgment by the apex court upholding something similar.
In India’s case, it is expected to be the 1977 judgment in Rev Stanislaus vs State of Madhya Pradesh, where Orissa and Madhya Pradesh’s anti-conversion laws were upheld – though as Professor Faizan Mustafa has argued, the decision would likely be very different today after the re-affirmation of the right to privacy in the 9-judge Puttaswamy case as well as of autonomy of adults for marriage and conversion in Hadiya’s case.
In their case, Virginia relied on Pace v Alabama, a decision of the US Supreme Court from 1883, in which the court upheld a conviction under a statute forbidding adultery between a white person and a Negro.
But the US Supreme Court of 1967 was not interested in being held back by this flawed precedent, and instead pointed out that this idea of an ‘equal application theory’ in Pace was wrong in law, relying on a more recent judgment in McLaughlin v Florida (1964) – and interestingly, a concurring opinion in that case which went even further than the main judgment.
The observations of Justice Stewart’s concurring opinion in the McLaughlin case make for interesting reading. He wrote:
“I concur in the judgment and agree with most of what is said in the court’s opinion. But the court implies that a criminal law of the kind here involved might be constitutionally valid if a State could show “some overriding statutory purpose.” This is an implication in which I cannot join, because I cannot conceive of a valid legislative purpose under our Constitution for a state law which makes the colour of a person’s skin the test of whether his conduct is a criminal offence.”
In Loving v Virginia, the Supreme Court endorsed the progressive view taken by Justice Stewart three years ago, which firmly refused to accept that a criminal law, in particular, could every be justified based on a distinction like race – keep in mind how the ‘Love Jihad’ laws are not just civil laws against marriage, they also include criminal penalties for those found to violate the laws.
The Court Slams the Door Shut on the Underlying Narrative
The court observed that the Code of Virginia was, despite its trappings of equal treatment, solely based on racial discrimination and such restraint was in contravention with the Fourteenth Amendment which, like the Indian Constitution’s Article 14, provides for equal protection of laws to any person in the country.
After observing that the right to marriage is one of the basic civil rights of a person (something that the Indian Supreme Court has already held in the right to privacy case, the Hadiya case and the Shakti Vahini honour killings case), the US Supreme Court then took firm aim at the underlying basis of the law:
”To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State’s citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discrimination. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual and cannot be infringed by the State. These convictions must be reversed.”
These observations would go on to protect more than just the right to marriage, but also give strength to those fighting against other intrinsically discriminatory laws, whether on the basis of race, birth, colour or sex.
That is the legacy that the Indian judiciary must emulate when it comes to any judgment that deals with the constitutionality of the ‘Love Jihad’ laws by UP and other states. It’s over to them now, to not just protect individual autonomy and women’s agency, but also to ensure that the discriminatory nature of these laws is obliterated once and for all.
(Areeb Uddin Ahmed is a law graduate from Faculty of Law, AMU and a member of the Indian Civil Liberties Union. This is an opinion piece and the views expressed are the author's own. The Quint neither endorses nor is responsible for them.)
(At The Quint, we question everything. Play an active role in shaping our journalism by becoming a member today.)