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

The "love jihad" law enacted in Uttar Pradesh, and either duplicated or announced by other Bharatiya Janta Party-ruled states, represent the values enumerated in the Manusmriti, and are inimical to those that are enshrined in the Indian Constitution, writes SAMEENA DALWAI.

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22 year old Muskan Jahan miscarried at a government shelter home, where she was being held under Uttar Pradesh's new "love jihad" law, first brought in as an ordinance in November 2020, before being passed by the UP legislative assembly in February this year. Her husband was held for two weeks in an unknown prison under the same law.

The law prohibits converting one's religion and subsequently marrying a person from the newly adopted religion. Both bride and groom have to face criminal charges according to the new law.

UP is the first among the states ruled by the Bharatiya Janta Party, which also heads the union government, to have brought in a law to curb what is commonly known as "love jihad", with several others promising to follow suit.

Also read: Love Jihad – Legislation of the Post Truth

What the law says

According to the law, which has been in force for 10 months now, a person wishing to change his or her religion has to give 60 days' notice to the district administration, so that the latter can investigate that the change of religion was done without any undue influence, coercion, allurement, force or misrepresentation. A marriage, where either the man or a woman had changed their religion without government's scrutiny, is null and void.

If a woman changes her religion and gets married, any member of her family can file a case against her husband, and the responsibility to prove that there was no "misrepresentation, force, undue influence, coercion, allurement or any other fraudulent means" remains on the husband while he is arrested right away. He could be punished for two to ten years.

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

The bogey of "love jihad", and its roots

The law was introduced to ostensibly solve the problem of "love jihad", a conspiracy theory popular among the leaders of the BJP and other right-wingers. According to this theory, Muslim clergy, in an organised manner, sponsor, motivate and train some Muslim men to lure women of other religions into marriage so that their off spring will be Muslim. This way, the world will come to be populated by Muslims.

So far there has been no evidence to support this theory in demography, politics or law.

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

Further, the concept is offensive to women, who are considered unable to make their own rational choices, and relegated to being mere producers of babies that will propagate a religion.

The love jihad theory comes from the fear of loss of the patriarch's power over his daughters. According to patriarchal traditions, the father is the supreme decision maker who decides whom to 'give' his daughter to in marriage in the wedding ritual of 'kanya daan' (literally meaning, the gift of a virgin daughter).

However, with changing times, an increasing number of women are gaining education, financial independence and exposure to the outside world. They have started asserting their choices, including the choice about whom to marry. This causes moral panic in the caste patriarchy, especially if the women choose their partners from other castes or religious groups.

Also read: Scope of Judicial Review of the Love-Jihad Ordinance

How other legal provisions affect interfaith marriages

Even the seemingly progressive laws have loopholes to accommodate this panic.

First in point is the Special Marriage Act, 1954 which allows any two Indians to marry each other, regardless of their religious background, provided that the couple give a 30 day notice to their local registry. They must be residents of that location for 30 days prior to the notice, and their intent to marry will be posted and publicised in the registry office.

The outcome is obvious. A runaway couple can be easily captured by their kin and returned home. In some cases, they are murdered, becoming another addition to the rising list of 'honour killing' cases.

Also read: UP govt defends "love jihad" ordinance; cites secularism to justify protecting citizens against "forced conversion"

The second problem lies with the execution of the criminal law of rape. Any sexual intercourse with a minor girl below 18 years of age is deemed rape as per the Indian Penal Code. This provision is meant to protect children from sexual assault and exploitation.

However, it can also nullify the consent of a minor young woman who elopes with her lover. Her family can charge her lover with rape, and he can end up in jail, while the young woman is 'returned' to her family against her wish. In this case, then, love is deemed as rape.

Also read: Allahabad HC grants bail to Muslim man accused under "Love Jihad" ordinance; points out falsity in complainant's claim

How the law destroys lives, Constitutional values

The disastrous outcomes of the UP law have already emerged. The first person booked under this law was a 21 year old Muslim man who had eloped with a Hindu woman in the past. The young woman denied any wrong doings on the man's part; hence he was released.

Later, the woman got married to a Hindu man, according to the wishes of her father. Ordinarily, here the case would have met its sad end.

But the matter went one step further. Armed with the new law, the father of the woman filed a case against her lover claiming that he was "putting pressure" on his daughter to convert.

As of July this year, the UP police had filed 63 FIRs, booked 162 people, and arrested 80 people under the law, with an additional 21 absconding. Arrests under similar new laws have also been made in Madhya Pradesh and Gujarat this year.

Seeing how quixotic and destructive the power of law can be, law makers ought to be responsible towards their constituents. An autocratic government may want to control its citizenry, particularly women, in this fashion. But can this be permitted by a vigilant society that is at the heart of a true democracy?

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

India is currently facing a battle of constitutions: one between the Constitution of India drafted by Dr. B.R. Ambedkar that hopes to build a society based on equality, fraternity and justice, and the Manusmriti – the archaic Hindu legal scripture that prescribes a social hierarchy based on ascribed identities of birth such as caste, gender and religion.

What Indians choose now will have a long lasting impact on the future of the subcontinent.

(Sameena Dalwai is Professor of law at the Jindal Global University. The views expressed are personal.)