As more and more states enact laws against “love jihad”, the fact is that they are mainly targeting consensual inter-religious relationships between adults. This infringes on fundamental rights and even the Supreme Court had upheld the right to marry to be an inviolable tenet of the exercise of personal liberty. The fears and anxieties of such relationships are linked to the concept of the “Hindu Race”, patriarchy and nationality. Strangely, there is never much cry over Hindu men marrying Muslim women as over Hindu women marrying Muslim men. It is time that the Special Marriage Act was reformed to make the process of marriage easier and attempts to vilify an entire community is stopped. Such couples should be helped to overcome socio-legal challenges, writes ARNESH NAG
———
Recent attempts by some states to enact laws criminalising “love jihad” are misguided. This is not only because the “love jihad” rhetoric targets consensual inter-religious relationships between adults, but also because such laws will have drastic repercussions infringing on fundamental rights and further marginalising Muslims in India.
In an era when the highest court of the land has upheld the right to marry to be an inviolable tenet of the exercise of personal liberty, the proposed “anti-love jihad” laws would be seemingly reactionary and could only be understood in the broader context of communal narratives sustained by a certain section.
Myths that create moral panic can only be made relevant by repetition. This is especially so for the “love jihad” issue, which has been in the news since the late 2000s. In fact, propaganda campaigns against allegations of Muslim men forcibly marrying Hindu women, abducting or converting them, had marked even the decade of 1920s.
No empirical evidence could prevent one from believing such myths when they resonate with deep-seated anxieties. Vigilante groups who have taken upon themselves the “duty” to “save” Hindu women have long claimed that Muslims are “luring” and “wooing” them into marriage to order to increase their population. Such demographic fears are not new.
Books that perpetuate communal politics
In 1909, the book Hindus: A Dying Race by U.N. Mukherji fed into communal politics. Such anxieties of Hindus being reduced to a minority in a nation that the political right sees as their only true “homeland” is also reflected when politicians openly declare a rising Muslim population as a “threat” and the “cause” of terrorism. This is also evident when they ask Hindu women to have more children and when they shout slogans such as “Hum do, humaare do. Wohpaanch, unkepachchees (Us two, ours two. Those five, theirs twenty-five).” This what Mohan Rao referred to in 2011 in “Love Jihad and Demographic Fears”. He referred to the “essentialism of numbers”. Such rhetoric justifies the patriarch asserting control over female sexuality by attacking any inter-religious relationship, thereby assuaging demographic anxieties.
A 2018 judgment of the Supreme Court is relevant for it upheld: “Human dignity both recognises and protects the autonomy of the individual in making sexual choices. The sexual choices of an individual cannot obviously be imposed on others in society and are premised on a voluntary acceptance by consenting parties.”
Allegations of “love jihad” are then, perhaps, an example of the “embedding of patriarchy, ‘nationality’, and violence against women”. Violence against women precisely because there is never as much a cry over Hindu men marrying Muslim women as there is when Hindu women marry Muslim men. To understand this discrepancy, one may only have to look at how the political right has conceptualised the Indian nation as belonging to the “Hindu Race”.
The Uttar Pradesh government’s recent ordinance is modelled on pre-existing laws, as also suggested by its State Law Commission, but with few changes. But linking inter-religious marriages with forced conversions is constitutionally immoral for it allows people in every such relationship to be harassed, with state-sanctioned impunity, as suspects of alleged “love jihad”.
This ideation was crystallised by M.S. Golwalkar in 1939 in “We or Our Nationhood Defined” where he states that all those not belonging to the Hindu race, religion, culture and language fall out of the “National” life and “only those movements are truly ‘National’ as aim at re-building, re-vitalising and emancipating from its present stupor, the Hindu Nation…(a)ll others are either traitors and enemies to the National cause, or, to take a charitable view, idiots”.
In such a theoretical context, Hindu-Muslim marriages radically oppose this imagination and by virtue of it, become truly “anti-national”. Hindu women by marrying Muslim men are seen as abandoning the “national”, while Muslim women marrying Hindu men would be seen as “gharvaapasi”.
States target inter-religious consensual adult relationships
The move by some states then to enact special “anti-love jihad” laws is also perplexing for it belies the centre’s statement that no such cases have been reported by its agencies. This is not the first time that there have been such statements from state functionaries.
In 2009, when rumours and allegations of missing women and “love jihad” circulated in Kerala and Karnataka, both the Kerala and Karnataka High Courts ordered investigations into the issue. The Director-General of Police reported to the Kerala High Court that there was no organisation by the name of “love jihad”. The Dakshina Kannada Police too stated that the rumours were sans merit. The Deputy Inspector General of Police of Western Range, Karnataka, told Frontline that no “love jihad” complaints had been received from the area. The woman alleged to be a victim of “love jihad” deposed before the Karnataka High Court that she had converted to Islam on her own accord.
Other investigations by the National Investigation Agency in Kerala, the Karnataka Criminal Investigation Department, as well as the Uttar Pradesh police, all found that the “love jihad” allegations had viciously targeted consensual adult relationships. Most recently, in November 2020, a Special Investigation Team, probing similar allegations in Kanpur, found no evidence of a criminal conspiracy. However, in 11 of the 14 investigated cases, the accused had either hidden his identity or entered into relations with minor girls.
Under the Hindu Marriage Act (1955), marriages for which consent was obtained by fraud as to any material fact or circumstances are voidable. Under Section 366 of the Indian Penal Code (1860), kidnapping or abduction women for compelling marriage are penalised. In fact, the Special Marriage Act (1954) is a secular law that allows women and men to marry irrespective of their individual religions and conversion is not a condition for it.
Indeed, such allegations of abduction, forced conversion and fraud are all matters that should be individually dealt with by the law. Separate instances cannot be generalised to vilify an entire community and debase all consensual expressions of inter-religious love between adults as obscene. Such love cannot be criminalised by enacting laws. What we should be asking is—What need does the proposed law serve? What would the implications of such a law be? Since the term “love jihad” gained a stronghold in the public-political parlance, the allegation has, in fact, gone from the particular to the general to the more abstract.
In its earliest days in 2009, the claims were of an organisation operating under the name of “love jihad”, it later came to be understood as an alleged conspiracy. Today, any concept of inter-religious relationship is seen as threatening the “idealised moral order centred on the Hindu family”.
Uttar Pradesh and other states following it are not the first to make laws criminalising forced conversions. They already operate in Arunachal Pradesh, Himachal Pradesh, Madhya Pradesh, Odisha and Uttarakhand among others. In fact, members of indigenous faiths in Arunachal Pradesh had opposed a proposal to repeal the law. Among these, only the Uttarakhand and Himachal Pradesh laws allow the Family Court to declare a marriage done for the sole purpose of conversion to be void.
The Allahabad High Court recently overruled two earlier judgments, the earliest of which had held conversion for the purpose of marriage illegal and the consequent marriage to be void. The more recent of the two judgments had been cited by the UP chief minister to justify the need of an “anti-love jihad” law. The High Court observed: “Interference in a personal relationship, would constitute a serious encroachment into the right to freedom of choice of the two individuals.” The Delhi High Court, too, in a recent judgment reiterated the right of an adult woman to live with whomever she wants.
The Uttar Pradesh government’s recent ordinance is modelled on these pre-existing laws, as also suggested by its State Law Commission, but with few changes. But linking inter-religious marriages with forced conversions is constitutionally immoral for it allows people in every such relationship to be harassed, with state-sanctioned impunity, as suspects of alleged “love jihad”.
Special laws for protection
State governments should not be overlooking existing recourse and judicial precedents. Under the Hindu Marriage Act (1955), marriages for which consent was obtained by fraud as to any material fact or circumstances are voidable. Under Section 366 of the Indian Penal Code (1860), kidnapping or abduction women for compelling marriage are penalised. In fact, the Special Marriage Act (1954) is a secular law that allows women and men to marry irrespective of their individual religions and conversion is not a condition for it.
There is also the added recourse of habeas corpus petitions when someone is in illegal custody. However, this remedy has been used more as a template by family members to harass women who have voluntarily left their homes and married men of another religion.
The Allahabad High Court recently overruled two earlier judgments, the earliest of which had held conversion for the purpose of marriage illegal and the consequent marriage to be void. The more recent of the two judgments had been cited by the Uttar Pradesh chief minister to justify the need for an “anti-love jihad” law. The High Court observed: “Interference in a personal relationship, would constitute a serious encroachment into the right to freedom of choice of the two individuals.”
A 2013 study, using data from the India Human Development Survey (2005), found that only 2.21 percent of married women between 15-49 years of age were in inter-religious marriages. While another study, using data from the third round of the National Family Health Survey (2005-06), found that only 2.1 percent of total marriages were inter-religious in India.
The Delhi High Court, too, in a recent judgment reiterated the right of an adult woman to live with whomever she wants.
Ergo, then the only rationale behind the proposed laws could be to reassert the body of women as the symbol of “purity” and “innocence” to be “protected” from “humiliation” by men. She is denied agency and any act on her part to challenge the rhetoric is seen as her being “misled” and “coerced” by the “trickery” of “licentious” Muslim men. Such endeavours, then, are less to do with “saving” women as much as they have to do with “saving” community honour. Some may go to the extent of declaring “love jihad” a terrorist issue to justify their doing. Unsurprisingly, doubts have been raised over the proposed laws.
“Love jihad” narratives only exacerbate the distrust and fissures pre-existing in the social fabric. Our outrage should be directed at challenging nefarious myths that attack the plurality of India and an already inchoate idea of secularism. We should, instead, be committed to reforming the Special Marriage Act to make its process of marriage easier.
Studies show few inter-religious marriages
A 2013 study, using data from the India Human Development Survey (2005), found that only 2.21 percent of married women between 15-49 years of age were in inter-religious marriages.
While another study, using data from the third round of the National Family Health Survey (2005-06), found that only 2.1 percent of total marriages were inter-religious in India. Laying forth the aim of increased identification between Hindus and Muslims, Ram Manohar Lohia (1960) had noted: “The ultimate identification in the social sphere relates to marriage. I am sure that, unless more than one in a hundred of all weddings taking place in the country is between Hindu and Muslim, the problem will not have been solved in an ultimate manner.” We should then be committed to encouraging more inter-religious marriages in our nation.
India has been and should be about celebrating love beyond imagined boundaries, about helping inter-religious couples overcome socio-legal challenges and about protesting the politics of hate. This should be and continues to be the guiding spirit of India.
(Arnesh Nag is a student of Symbiosis Law School, Noida. The views are personal.)
