India’s ‘Love Jihad’ Laws: ‘Death’ to Liberty, Religious Freedom?

The mandatory requirement — to declare to the State one’s intention to convert — is an infringement of basic rights.

(This story was first published on 16 March 2021 and is being republished from The Quint's archives to mark one year since the anti-conversion law in Uttar Pradesh came into effect.)

There has been a 27 percent rise in communal incidents in India between 2014 to 2017, with the rise in Uttar Pradesh being as high as 47 percent. 43 percent cases of harassment of Dalits and minorities, taken up by National Human Rights Commission, have been registered in UP.

A Special Investigation Team was formed in UP to investigate the alleged ‘organised conspiracy’ of ‘love jihad’ in September 2020. The UP government promulgated an ordinance criminalising religious conversion for marriage, equating it to ‘forceful conversion’ and calling it a ‘threat’ to cohesive community identity.

The inclusion of marriage in the ordinance uniquely separates it from other anti-conversion laws in India. Key features of the ordinance include the clause that individuals desirous of converting have to make it known to the State beforehand — or suffer non-bailable criminal consequences.

A marriage for the sole purpose of conversion is void. The burden of proving voluntary conversion is on the ‘convertor’ to bear. Re-conversion to the previous religion is not criminalised.

In India, Does the Right to Propagate Religion Also Include Right to Convert?

In Hinduism, every religion is believed to be autonomous; proselytisation is not generally encouraged. This is unlike monotheistic religions like Christianity and Islam have often witnessed proselytisation. Being a Hindu-majority country, there was extensive debate in the Constituent Assembly, before the freedom to practise and propagate religion was recognised as a fundamental inalienable right under Article 25 of the Constitution of India. Within two decades of enforcement of the Constitution, states started conducting surveys and reporting that conversion led to disruption of societal peace.

Governmental authorities decided to regulate conversion though testimonies of most converts, which eventually indicated wilful conversion.

As many as six states passed anti-conversion laws, upheld by the Supreme Court. The court conservatively stated that the right to propagate did not include the right to convert, but only included the right to spread religion — discounting that successful propagation may lead to conversion by will.

The State legislations in the 1990s did not require a convert to make it known to the State beforehand of such a desire, unlike the legislations against forcible conversion in the 2000s. None of these legislations presumed forceful conversion in case of marriages.

Fine Line Must be Drawn Between Forceful Conversion & Religious Intolerance

A fine line must be drawn between forceful conversions and religious intolerance restricting personal freedom. The ordinance must be challenged before the judiciary for constitutionality. The judiciary must derive from the contentious lemon test used in the US to evaluate religious laws. Secularism in India does not mean separation of the State and religion, unlike the US, but rather, equality of all religions before the State. As per Indian secularism, the lemon test may be modified into whether the:

1. the purpose of the legislation is manifestly arbitrary or
2. the effect is the advancement/intolerance towards one particular religion or
3. State interference (entanglement) transgresses into individual private sphere

‘Love jihad’ is a political construct. The ordinance promulgated with the motivation to restrict ‘love jihad’ is a clear attempt at suppressing minorities, more particularly Muslims, with the lack of belief in voluntary conversion to a minority religion for marriage.

Indian Anti-Conversion Laws Have Less to do With Public Order & More to do With Regulating Religion

The burden of proving whether a marriage was for the sole purpose of conversion should not be for the convertor but for the complainant/State to bear, since anything to the contrary reeks of State presumption against voluntary conversion. This renders the freedom to propagate religion under Article 25 a hollow promise.

Choosing a faith is a substratum of individual liberty and freedom of expression guaranteed by the Constitution. So is the right to live with a person of one’s choice irrespective of the religion professed by them. A mandatory, and not directory, requirement to declare an intention to convert — to the State — is an infringement of these rights. Marriages in India are governed by customary law or personal law. Thus a marriage, believed to be a sacred union, cannot be declared void under a special criminal legislation as per Indian public policy.

85 percent active civil society actors disagree with there being any freedom of religion in India, and 88 percent disagree that the government allows religious groups to function unhindered.

The UN notes that Indian anti-conversion laws, as they stand currently, have less to do with maintaining public order and more to do with regulating religion. This Ordinance, if challenged and then upheld by the judiciary, will be another nail in the coffin of Indian religious freedom.

(Vayuna Gupta is a practising lawyer at the Gujarat High Court. This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)