The Politics of Love Jihad and its Constitutional Validity

Love jihad is a tool of propaganda that creates social divides. It has no connection to the lived reality of Indians but its scourge is spreading across the country. The Supreme Court must address the constitutional morality of the enactments and promulgations on love jihad, which militate against freedom of religion and dignity of women and polarise society, write ZEESHAN AHMAD AND ZAIN HAIDER.

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Noted political scientist Ishtiaq Ahmed wrote in his book, Jinnah: His Success, Failure and Role in History, that once "ideas [such as of Pakistan as a separate nation], or more concrete forms of them as ideology, gain popular currency and become part of political discourse, they acquire a life of their own and… [it] may no longer be possible for those who originally created or popularised them to control or withdraw [them]."

Ahmed's observations eerily reflect how the divisive "love jihad" debate has progressed in India. Two recently promulgated anti-conversion ordinances in Uttar Pradesh and Madhya Pradesh, the Prohibition of Unlawful Religious Conversion Ordinance, 2020, and the Freedom of Religion Act, 2020, respectively, are attempts to impart legal sanctity to what Ahmed refers to as ideas that acquire a life of their own and refuse to be tamed.

For long, the idea of carving out Pakistan as an independent nation was espoused only by a fringe in undivided India, but once out in the public arena the idea gathered steam until it became reality. So is the case with the idea of love jihad. It has grown over the years, as Hindu right-wing leaders carried out systematic campaigns that have given it a life of its own. Now it has become a force in itself, and, like the idea of separate nations for Hindus and Muslims of the subcontinent, love jihad has the potential to communalise everyday life and drive a sharp wedge between India's Hindu and Muslim communities.

Also Read: UP's "Love Jihad" Ordinance – A Sarkari Honour Crime 

Facts and reason are alien to emotive campaigns such as love jihad. They are solely based on the imagination and seek brew a sense of victimhood among the majority community. Yet, contrary to perception, love jihad has neither emerged spontaneously nor is the undue alarm over interfaith marriages spreading in isolation. History holds a lesson here.

The love jihad controversy can be traced to the 1920s, when the Arya Samaj launched the Shuddhi (purification) movement to bring Hindus back into the fold from other religions they had adopted. Pamphlets with provocative titles such as "Hindu striyon ki loot ke karan—Because of the loot of Hindu women", were circulated and often led to deadly riots across north India, especially in the United Provinces (present-day Uttar Pradesh).

The 1920s were marked by a spurt of competitive communalism, which provided fundamentalist propaganda machineries a germane ground to flourish. One trope of the Hindutva version of the communalism of those times was that Muslim men seek to abduct Hindu women. Love jihad is an extended version of that trope and draws heavily from the 1920s communalism playbook and robs women of their agency.

MAKING SINISTER SEEM NORMAL

Love jihad is a conspiracy theory imagined by the Hindu right, in which "virile Muslim men" are out to seduce "gullible Hindu women" into marriages for sexual exploitation and forceful religious conversion. There is no proof for this claim. Yet, given how the Hindu right has fostered hostilities between Hindus and Muslims for at least a century, such campaigns find their own audience. In fact, love jihad reflects the "moral anxiety" of the Hindu right. Further, the ordinances promulgated in Uttar Pradesh and Madhya Pradesh are attempts to give love jihad legal and social validity. Put differently, they seek to give institutional status to a sectarian idea by legal sleight of hand.

COMPLICITY OF FOURTH PILLAR OF DEMOCRACY

Since the promulgation of the two ordinances, hardly a day passes when love jihad or "forced conversion" are not featured by the media. Shrill primetime debates on television heighten the anxiety around it and contribute to normalising the narrative.

The internet's deep penetration has exposed subaltern India to this vicious narrative as well, where opportunities to casually encounter or even seek out counter-narratives is limited.

Also Read: Love Jihad: Inter-faith marriage a clash between pre-modern society and the modern state

The propaganda about interfaith marriages is not confined to these two BJP-ruled states which promulgated the recent ordinances. Rather, the audience for love jihad conspiracy-theories is considerably large and growing, for the so-called fourth pillar of democracy is widely disseminating the right-wing narrative.

The question is, does Hindutva's newest tool against Indian Muslims have any credibility?

First, it is worth examining the potential repercussions of such dangerous myth-making on pluralism, India's social fabric and the constitutional order. Thereafter, these authors will demonstrate how love jihad is a bogus and diabolic right-wing conspiracy.

1. The Union Home Ministry admitted in February 2020 that love jihad is not recognised by the Centre and not defined by any law.
2. The judiciary has repeatedly ruled that love jihad is a made-up conspiracy and there is no evidence it exists. In Shafin Jahan v. Ashokan KM, the Supreme Court upheld the marriage of Hadiya and Shafin Jahan, which the Kerala High Court had annulled. The Supreme Court tried to put the ghost of love jihad to rest with this ruling.

In other words, officially, no information or data backs the claim that love jihad exists, nor does the Supreme Courts support the idea that it does. This raises a very significant question" why has a law been enacted to criminalise something which does not exist?

CONSTITUTIONALLY UNTENABLE

These two sinister ordinances are constitutionally reprehensible, for they restrict conversion in the garb of regulating religion and marriage. They create constitutionally dubious criteria and infantilise women. They are, arguably, an affront to personal liberty, rule of law and equality before law.

Also Read: SC notice to UP and Uttarakhand govt on "Love Jihad" law; no stay for the moment

Marriage is the most intimate and perhaps most significant part of life, especially in India. Having the choice of whom to marry is especially significant in India's context. This is because all rights which are implied, which help realise our constitutionally-protected fundamental rights, are also said to enjoy the same protection as the original rights. As the Supreme Court said in Francis Coralie Mullin v. The Administrator, Union (1981): "We think that the right to life includes the right to live with human dignity and all that goes along with it." The Supreme Court also said in Lata Singh v. State of Uttar Pradesh, "…once a person becomes major, he or she can marry whosoever he/she likes".

The apex court has separately observed that family, marriage, procreation and sexual orientation are "integral to the dignity of the individual". Any impediment, legal or otherwise, to these liberties infringe Article 21. Choice, consent, dignity and liberty have an exalted place in the constitutional scheme, which anti-conversion laws gives short shrift to.

A report published in The Guardian newspaper observes, "The Uttar Pradesh crackdown has fuelled fears that the 'love jihad' law is being used to target Muslims and outlaw consensual interfaith marriage in Uttar Pradesh."

The intrusion of the state into the personal arena of marriage stands in sharp contrast to how a modern secular republic works.

In the landmark KS Puttaswamy v. Union of India judgment, the Supreme Court held that the Right to Privacy is protected by the Constitution, and autonomous decision-making is a key facet of privacy.

Also Read: Can the State Dictate what Religion you will Follow and who you will Marry?

Constitutionally dubious hurdles such as section 4 of the Uttar Pradesh ordinance, which says anyone related by birth, marriage or adoption can file an FIR against a person who has converted infringes personal autonomy.

Equally outrageous is the clause which says that whoever reconverts to their original religion shall not be considered as having changed their religion. This amounts to privileging one religion over the other and sends the message that citizens do not have the right to change the religion they are born in. This militates against secularism, which is a part of the basic structure of the Constitution and which gives all religions equal status in the eyes of the State and law.

In Shafin Jahan, the Supreme Court recognised the "right to marry a person of one's choice an integral part of Article 21 of the Constitution" and reprimanded the High Court of Kerala that the courts are "duty-bound not to swerve from the path of upholding our pluralism and diversity as a nation".

In Shakti Vahini v. Union of India, the apex court observed, "life and liberty sans dignity and choice is a phenomenon that allows hollowness to enter into the constitutional recognition of the identity of a person".

Therefore, the anti-conversion laws snatch constitutionally-guaranteed rights of women and couples seeking to marry persons outside the religion of their birth.

Emphasising on the dignity of women, the apex court held in Charu Khurana and others v. Union of India that "…dignity is the quintessential quality of a personality and a human frame always desires to live in the mansion of dignity, for it is a highly cherished value."

Another glaring infirmity in the ordinances are their use of vague and wide terms such as "inducement" and "allurement". These terms can cast the interpretative net so wide as to include anything and everything within the ambit of "forced conversion". This is not a new problem.

The Orissa High Court, in 1973, while assessing the constitutional validity of the Odisha Freedom of Religion Act, 1967, observed, "The definition of the term 'inducement' is vague and many proselytising activities may be covered by the definition and the restriction in Article 25(1) cannot be said to cover the wide definition." The court held the law was unconstitutional.

Also Read: MP follows UP with its own "love jihad" ordinance

Contrarily, the Madhya Pradesh High Court upheld the state's anti-religious conversion law (Madhya Pradesh Act of 1968) although it was said to have gone "overboard" by using the word "allurement".

However, the Supreme Court, in the well-known Rev. Stanislaus v. State of Madhya Pradesh case, did not appreciate that propagation is an integral part of Christianity and restricted it to edification. It did not consider the debates in the Constituent Assembly on the word propagate with respect to Article 25, particularly the interventions of KM Munshi and Dr TT Krishnamachari.

Munshi had said that conversion by propagation should be by the free exercise of conscience and must be recognised, whereas Krishnamachari said that by inserting "propagation" no religion was being privileged, rather it leaves the door open for all to propagate their religion, subject to some restrictions.

However, in Stanislaus, the Supreme Court held that the right to conversion is not a fundamental right, it is restricted to only propagation.

Clearly, the case was determined on the wrong basis, ignoring relevant facts and history.

One of India's most prominent legal doyens, HM Seervai, dubbed this judgment as "clearly wrong", one that would produce the "greatest public mischief and ought to be overruled". Strangely, it is this Emergency-era judgment with many infirmities which the Uttar Pradesh ordinance draws its lifeblood from.

A CONSTITUTIONAL MORALITY FOR TOMORROW

The stakes are high when discriminatory laws like the anti-conversion and anti-by choice marriage laws or even the Citizenship (Amendment) Act, (2019), are considered. Such laws have the potential to tear apart the social and democratic fabric of India.

In their book, Everyday Communalism: Riots in Contemporary Uttar Pradesh published in 2019, political scientists Sudha Pai and Sajjan Singh underscore how tools like love jihad, anti-cow slaughter movements and other such campaigns are used by Hindutva foot-soldiers to make "everyday communalism" a norm.

"Rather than big riots, the aim [of communal propaganda such as love jihad] is to communalise trivial daily incidents and create small, low-intensity, calibrated incidents whose purpose is to create deep-seated Hindu–Muslim polarisation," the authors say.

This is why it is important for the Supreme Court to come to the rescue of "constitutional commoners" and declare the anti-love jihad laws unconstitutional. This should not be an uphill task for the court, given its prior rulings in favour of personal liberty.

The Supreme Court has upheld a range of individual rights over social morality in the past. A similarly progressive approach would inspire hope among citizens and solidify the Constitution as the rescuer of the "minuscule fraction", even when pitted against the State. This was the tenor of the Navtej Johar ruling, for instance.

Second, the Supreme Court is mandated to act as a counter-majoritarianism institution, as it did in the Sabarimala judgment, which upheld the dignity and liberty of the individual.

The common thread connecting these judgments is liberty, at whose heart is the doctrine of constitutional morality. Therefore, anti-sectarian laws such as on love jihad and the CAA must be tested for their constitutional morality. An impartial study will surely find them unconstitutional.

Interestingly, the enunciation on constitutional morality by the Supreme Court is more than a decade old and was applied first in Naz Foundation v. Government of NCT of Delhi. This makes it odd that the doctrine has seen only a limited application. It can be argued that this is because of a lack of constitutional culture in the country. For, constitutional morality has two pillars, "permanent reverence to the form of the Constitution" and consistency, if not congruency, between the form of the Constitution and the government of the day.

Unless constitutional morality enters the crevices of society, that is, the everyday lives of all who live in India, the purpose of the Constitution will not be fully realised—something of its promise shall remain unfulfilled.

(Zeeshan Ahmad is a law graduate & Zain Haider is currently pursuing his graduation in law. Their views are personal.)