‘Love jihad’ laws and the path Supreme Court can take

The Supreme Court’s human rights judgments based on interpretation in light of disadvantaged class can act as a great tool for the court to decide on the constitutionality of ‘love jihad’ laws to protect the rights of women

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THE Supreme Court is in process of deciding petitions challenging the constitutional validity of the anti-conversion laws passed by the state of Uttar Pradesh and Uttarakhand. Haryana is only the latest of several Bharatiya Janta Party-ruled states that has brought out a similar act. Almost all of these state acts, apart from forceful conversion, also restrict (by administrative hurdle) religious conversion for marriage.

The rationale behind the introduction of these legislations is to restrict the alleged conversion of Hindus, particularly women, to Islam or Christianity through entrapment in ‘love marriages’.  Although there is no significant data available of this practice, restricting conversion acts seems to be a popular political tool in the hands of Hindu supremacist governments to push its agenda to its majoritarian voter base.

Scholars against the law have pointed out the significant judgment of Shafin Jahan (whereby the  Supreme Court of India in 2018 recognized the right to choose a life partner and matter of faith in that regard as part of individual autonomy under Article 21 rights). However, we have seen several instances whereby restrictions on the absolute enjoyment of fundamental rights have also been upheld by the Supreme Court (such as, the Aadhar judgment, the cow slaughter judgment and the internet ban judgment).

We need to analyse whether the restriction imposed by these anti-conversion legislations are reasonable and legally justified. Scholars in favor of the laws have pointed to the Supreme Court’s Stainisluas judgment of 1977, which says that propagation of religion under Article 25 of the Constitution does not include the right to convert others. But these Acts go way beyond just forceful conversion and discriminate against women.

Also read: Anatomy of anti-conversion laws: Part I

Traditional constitutional doctrines may not suffice

The formal methods traditionally adopted by constitutional courts in dealing with women rights cases, such as due process under Article 21, or class legislation under Article 14, or protection of women under Article 15(3), may not suffice while dealing with anti-conversion laws for the following reasons:

Firstly, the legislations, apart from forceful conversion, also restrict (by administrative means) conversion for marriage. The restriction on conversion for marriage per se may not qualify for examination through Article 21’s doctrine of due process since it is a substantive law and the jurisprudence for striking down a law on substantive due process is not very clear. Secondly, traditional class-based classification under Article 14, whereby discrimination is analyzed on whether that classification is based on an intelligible differentia, would not be enough in this case as prima facie no class-based classification is visible. Thirdly, courts have formally indulged in justifying such similar provisions based on the protection given to women under Article 15(3), or the differentiation can be justified based on ‘natural selection’, since a lot of past jurisprudence of the Supreme Court says that women inherently need protection. Hence, these traditional doctrines would serve little to strike down the anti-conversion laws.

Although the anti-conversion acts do not prima facie discriminate between sexes, and the intention of the legislature prima facie does not seem to be to create an unreasonable classification, through scrutiny of the law, we find their implications to be a reflection of the deep-rooted patriarchal mind-set. They indirectly aims to control women’s autonomy, and the most affected by these draconian laws are women.

Also read: The Politics of Love Jihad and its Constitutional Validity

Recent jurisprudence offers hope

We have recently seen a wave of change in regards to feminist jurisprudence of the Supreme Court. The Supreme Court’s human rights judgments based on interpretation in light of disadvantaged class can act as a great tool for the court to decide in the instant matter to protect the rights of women. Judgments such as Anuj Garg (2007) and Joseph Shine (2018) gave away the traditional assumed natural traits difference between men and women as reasonable classification. Also, Anuj Garg focuses more on the effect of the Act rather than the intention of the legislature. Although the anti-conversion acts too, do not prima facie discriminate between sexes, and the intention of the legislature prima facie does not seem to be to create an unreasonable classification, through scrutiny of the law, we find their implications to be a reflection of the deep-rooted patriarchal mind-set. They indirectly aims to control women’s autonomy, and the most affected by these draconian laws are women.

A deeper scrutiny of anti-conversation laws also reveals a restriction on women’s Article 25 right that provides for an individual’s right to practice, profess and propagate any religion of their choice. Additionally, it violates Article 21 rights (since Shafin Jahan upholds individual autonomy in marriage choices as part of Article 21).

The Supreme Court must see that the legislatures are not using the least restrictive method by introducing an ‘administrative’ hurdle in a person’s, especially women’s autonomous right of getting married. Administrative discretion on such sensitive matters, related to the fundamental rights of an individual, is patently unconstitutional.

Legislatures have time and again enacted laws curtailing fundamental rights, but the Supreme Court has, in judgments such as Govind vs. State of MP (1975) and Puttaswamy (2017), focused on the least restrictive method to be used for curtailing fundamental rights (what is known as the ‘proportionality rule’). In the instant case, the Supreme Court must see that the legislatures are not using the least restrictive method by introducing an ‘administrative’ hurdle in a person’s, especially women’s autonomous right of getting married. Administrative discretion on such sensitive matters, related to the fundamental rights of an individual, is patently unconstitutional.

Also read: “Love jihad” laws: India is facing a battle of Constitutions

Finally, after the Sabarimala judgment by the Supreme Court in 2018, striking down the legislative acts on basis of substantive due process has also been included in the court’s jurisprudence, and after Navtej Singh Johar (2018), the court has the option to also use dignity of individual and Constitutional morality as a grounds to strike down the anti-conversion laws, either completely or partially in their present form. We have to wait and see which path does the Supreme Court chooses.

The Leaflet