'Love jihad' laws: Announcements by BJP state govts raise political storm; myths, half-truths add fuel to fire

As opposed to an extreme position that such a law cannot be enacted at all, it is time political opposition participated constructively in ensuring that the legal processes to ensure public order in regard to conversions are efficient and robust.

Kartikeya Tanna November 23, 2020 10:13:09 IST
'Love jihad' laws: Announcements by BJP state govts raise political storm; myths, half-truths add fuel to fire

Representational image. Image by ASHISH KUSHWAHA from Pixabay.

Recent announcements by a few BJP state governments in regard to their intent to enact laws prohibiting conversions merely for the purpose of marriage have raised quite a political storm. As is usually the case with such seemingly controversial measures, the political rhetoric surrounding these laws has shored up emotions and given rise to myths, drowning out facts and legal rationale in the process.

Myth 1: The laws criminalise interfaith marriages and will imprison Muslim men for marrying Hindu women

The answer, quite simply, is – they do not.

Interfaith marriages are very much permissible under the Special Marriage Act (SMA) – a law enabling marriages to be recognised in India outside the purview of religious laws. Indeed, the SMA does not entail religious conversion.

While the procedure to enact these laws in the respective state assemblies isn’t set in motion, as an indication of what these laws may possibly contain, the UP State Law Commission’s report on freedom of religion, which recommends a draft Bill titled The Uttar Pradesh Freedom of Religion Bill, 2019, serves as an illustration. Notably, this draft Bill is identical to laws already enacted by Uttarakhand and Himachal Pradesh in 2018 and 2019 respectively.

The draft Bill prohibits religious conversion through misrepresentation, force, undue influence, coercion, allurement, fraudulent means or by marriage. In case of violation of that prohibition, a complaint can be filed by an affected party or a relative. The proposed punishment is minimum imprisonment of a year which may extend to five years. In cases involving a minor, women or individual belonging to Scheduled Castes or Scheduled Tribes, the punishment is greater.

A party to a marriage desirous of converting is required to provide a declaration to the relevant authorities one month in advance that the said conversion is of his/her free will. The district magistrate shall conduct an inquiry in regard to the intention, purpose and cause of the proposed conversion. Indeed, rules issued in furtherance of this process shall elaborate it further.

For now, however, celebrities and influencers highlighting successful interfaith marriages to cry victimhood and spreading fear of their imminent arrest is, quite frankly, fear-mongering.

Myth 2: BJP’s devious agenda is apparent, it being the only political party to push bills prohibiting conversion

Patently untrue. The Congress-ruled government in Himachal Pradesh in 2006, the Swatantra Party government in Odisha in 1968 and the AIADMK government in Tamil Nadu in 2002 (later repealed by the DMK government in 2006) enacted laws prohibiting conversion on many of the grounds mentioned in the 2019 draft bill proposed by the UP State Law Commission.

It is vital to note that the BJP government in Himachal Pradesh enacted a stronger law in 2019, identical to the UP draft bill, prohibiting conversion for the purposes of marriage. However, the MLAs of the Congress party, which is now outraging against these laws, unanimously voted in favour of that law in the Assembly.

It is also vital to note that Uttarakhand enacted an identical law in 2018 after the Uttarakhand High Court noted in a 2017 case that it had come across instances where conversion from one religion to another was a “sham conversion only to facilitate the process of marriage”. In its order, it recommended the state government to legislate in this regard.

Myth 3: These laws violate the fundamental freedom under Article 25 of the Constitution to practise and propagate religion

This is based on a selective reading of Article 25 and ignorance of judicial pronouncements.

Firstly, in many seminal cases (Digyadarsan Rajendra Ramdass v State of AP and Rev. Stainislaus vs State of Madhya Pradesh), the Supreme Court of India has held that the right to propagate religion simply meant the right to communicate a person’s beliefs to another or to highlight the tenets of the faith, but not the right to convert another person.

Secondly, Article 25 isn’t only about the propagation of religion, but also guarantees freedom of conscience. In the landmark 1977 Rev. Stainislaus case, the five-Judge constitutional Bench of the Supreme Court, hearing petitions challenging the constitutionality of anti-conversion laws passed by Madhya Pradesh and Odisha in the late 1960s, categorically stated that the “freedom of conscience” in Article 25 meant that there was no fundamental right to convert a person, adding that if a person “purposely undertakes the conversion of another person to his religion”, that would impinge on that person’s freedom of conscience which was guaranteed to all citizens precisely in order to prevent any degree of compulsion in matters of belief.

Lastly, Article 25 freedom is subject to the ‘public order’ restriction – the very first words in the provision. Laws prohibiting conversion in a manner “reprehensible to the conscience of the community” are very much considered within the public order exception to Article 25, as the SC noted. This is because, if the forcible conversion had not been prohibited by state legislation, that, SC opined, would have created public disorder.

Myth 4: BJP is indulging in bigotry by voiding marriages in which conversions happen merely for the purposes of marriage

This stand, yet again, ignores the fact that the BJP isn’t the one which has introduced this rule. Jurisprudence emanating from several high courts across the country as well as the Supreme Court provide precedence that since religious status has far-reaching legal consequences and give rise to rights, conversion cannot be treated casually and it requires a bona fide intent to convert to another faith accompanied by conduct unequivocally expressing that intent. Courts have routinely examined the circumstances surrounding conversion to determine whether it was bona fide or mere pretence to gain an instant benefit.

For example, in the popular case of Lily Thomas vs Union of India in 2000, where a non-Muslim married male sought to get converted to Islam merely to enter into a second marriage, the Supreme Court voided that marriage, stating that if a person “feigns to have adopted another religion just for some worldly gain or benefit”, it amounted to “religious bigotry”.

In 2014, Allahabad High Court considered the question whether conversion of religion by a Hindu girl at the instance of a Muslim boy, without any knowledge of or belief in, Islam merely for the purpose of marriage was valid. Interestingly, the Akhilesh Yadav government, which was in power back then, took a stand that conversion merely for marriage was not permissible as this was neither valid religious conversion nor valid Nikah.

The Calcutta High Court in 1948 stated that if the conversion was resorted to “merely with the object of creating a ground for some claim of right”, a court could not recognise it and that such an act was akin to committing a “fraud upon the law”.

Therefore, what the draft UP Bill as well as the laws in Himachal Pradesh and Uttarakhand do is effectively codify what the constitutional courts of India have held since decades.

Myth 5: The State cannot enact a law criminalising conversion for the purposes of marriage

It, indeed, can.

SC’s 1977 Rev. Stainislaus judgment, as noted earlier, clearly lays down that the state legislatures are authorised to enact laws prohibiting or restricting conversions if justified under the ‘public order’ exception in Article 25 of the Constitution.

Indeed, whether or not the state should do so is a policy matter which can be a matter of debate.

An argument can, indeed, be made case for criminalising conversions. Several incidents of forceful or fraud-induced conversions before or after marriage have been reported. The Allahabad High Court case of 2014 noted earlier stated how every petitioner girl was made to convert by the boy. The Kerala High Court in 2009 noted concerted attempts to persuade girls to change religion after they fall in love with Muslim boys. Courts such as the Uttarakhand High Court have strongly recommended the state to enact laws prohibiting such conversion.

While courts have long voided marriages where conversions have occurred solely for the purpose of marriage, an argument can reasonably be made that such conversions not only continue but take a horrific turn in many situations, thereby creating public disorder which, in turn, warrants a strong deterrence – which is the predominant purpose of criminal law.

As opposed to an extreme position that such a law cannot be enacted at all, it is time political opposition participated constructively in ensuring that the legal processes to ensure public order in regard to conversions are efficient and robust.

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