Uttar Pradesh, a state in northern India, has recently promulgated The Prohibition of Unlawful Conversion of Religion Ordinance, 2020, which requires religious conversion to be scrutinised and certified by the state. Conversion to a different faith without the approval of the State will now be a criminal offence. The objective of the Ordinance is to act as a deterrent for conversions that take place due to force, misrepresentation or fraud. However, the state has conferred unbridled power upon the police to monitor and question conversions stemming from interfaith marriage. Significantly, past incidents of anti-Muslim violence in India have been politically motivated and the increasing hatred towards Muslim Community is an electoral strategy associated with Hindu Nationalism. Further, in an attempt to limit the Muslim population in India, radical Hindu leaders have propagated the notion of ‘love jihad’, which claims that innocent women are coaxed into converting their religion in order to marry Muslim men. Given the context of religious intolerance, police can arbitrarily restrict women of Hindu community from marrying Muslim men which is an unnecessary curtailment on the freedom of choice and conscience.

As per the provisions of the Ordinance, an individual must notify the state 60 days prior to their intention to convert, as well as provide a notice issued by the priest. Then, the police will conduct an inquiry to make sure that the person converting their religion is doing so willingly.  This is an egregious infringement of the Right of Life and Right to Religion which are the fundamental rights conferred on the citizens by the Constitution of India. In addition, the UDHR under Article 16 along with Article 23 of ICCPR, ratified by India in 1979, guarantees the right to marry as a human right. Moreover, the Indian Supreme Court has also recognized that the right to convert one’s religion is a fundamental right. Furthermore, the Allahabad High Court while deciding the ‘love jihad’ case where a criminal complaint was filed against a Muslim man who married a Hindu woman, held that the right to live with the person of his or her own choice irrespective of the religion professed by them is intrinsic to the right to life and personal liberty. Additionally, the court noted that when two people of different faith marry, particularly a Hindu and Muslim, one must see them as two adult individuals who choose to live together and any law restricting the right to marry with one’s own choice would be a serious encroachment on the fundamental rights.

Secondly, the unfettered powers that have been bestowed upon the police in the state of Uttar Pradesh to monitor the individual’s choice of partner infringes the rights to autonomy, liberty and privacy. The high-handedness of the police and arbitrary use of powers results in harassment of couples. In some cases it was found that police had forced women to give statements against Muslim men to register cases of forceful conversion. The police on its own cognizance is issuing complaints against Muslim men who are desirous of marrying Hindu women with their consent and are also being jailed. 

Thirdly, Section 4 of the ordinance confers unnecessary powers upon the relatives of the couple to raise objections to the marriage by lodging a police complaint. In India, marriage between two adults is often stifled by notions of patriarchy, religion, caste and family honour. Same-community marriages are idealised and more than 90% of marriages in India are arranged. There have been many instances in which relatives and members of the community resort to violence when couples of two different religions, most commonly Muslim men and Hindu women, marry each other. Inter-religious couples are often ostracized from society, and Muslim men have been threatened by the relatives of their Hindu wives. In response to this tension, the Supreme Court has held that there is no requirement of consent of the family when two adults are entering into wedlock. The powers given by [name of ordinance] to relatives to object to a marriage undermines this decision of the Court. As per statistics, around 125 couples across the state have already sought protection from this draconian ordinance, and it has since been challenged before the Supreme Court on the ground that it is unconstitutional. However, this ordinance has prompted other state governments to take steps to enact similar laws aiming to criminalize conversion by marriage. The notion of ‘love jihad’ and UP Prohibition of Unlawful Conversion of Religion Ordinance needs to be struck down by constitutional courts because it defeats the constitutionally guaranteed rights of citizens and vilifies a community which is already facing significant intolerance.

It is relevant to point out that due to the deep-seated patriarchy, a woman is looked as cattle and this Ordinance shoves women back to the clutches of their parents and community. Further, this Ordinance takes away the agency from women to freely choose their partner which portray an image that women are docile and they cannot decide for themselves. Thus, this ordinance disturbingly bespeaks to be a panacea for gullible women of the Hindu community and is  antithetical to the freedom of choice and the concept of unity in diversity. The duty to secure the fundamental rights of citizens and uphold the secular fabric of India has befallen on the Supreme Court. We hope that UP Prohibition of Unlawful Conversion of Religion Ordinance is declared unconstitutional. Here’s to hoping.  

Sources referred:

• Jayna Kothari, UP anti-conversion law amounts to discrimination and a violation of the right to equality, The Indian Express (February 7, 2021) https://indianexpress.com/article/opinion/columns/up-anti-conversion-law-love-jihad-7109029/
• Varghese K George, BJP, Parivar outfits to intensify campaign against ‘love jihad’, The Hindu (February 7, 2021) https://www.thehindu.com/news/national/bjp-parivar-outfits-to-intensify-campaign-against-love-jihad/article6292554.ece
• UP must stop enforcement of ‘love jihad’ law. Criminalising such marriages is unacceptable, The Print (February 7, 2021) https://theprint.in/50-word-edit/jks-roshni-act-u-turn-shows-govt-placed-political-expediency-ahead-of-administrative-welfare/562253/
• Akansha Kumar & Faridul Hasan, How UP police are using the ‘love jihad’ law arbitrarily, newslaundry (February 7, 2021) https://www.newslaundry.com/2021/01/11/how-up-police-are-using-the-love-jihad-law-arbitrarily
• About 35 arrests, dozen FIRs as Uttar Pradesh ‘love jihad’ law completes one month, The New Indian Express (February 7, 2021) https://www.newindianexpress.com/nation/2020/dec/26/about-35-arrests-dozen-firs-as-uttar-pradesh-love-jihad-law-completes-one-month-2241436.html
• Soutik Biswas, Love jihad: The Indian law threatening interfaith love, BBC News (February 7, 2021) https://www.bbc.com/news/world-asia-india-55158684
• Kavita Krishnan, An Interfaith Couple Faced Violence, a Miscarriage and Arrest: We Can’t Say ‘No Harm Done’, The Wire (February 7, 2021) https://thewire.in/communalism/up-moradabad-interfaith-couple-miscarriage-bajrang-dal
• Insiyah Vahanvaty, UP anti-conversion law pushes women back under parental and community control, The Indian Express (February 7, 2021) https://indianexpress.com/article/opinion/columns/love-jihad-uttar-pradesh-anti-conversion-law-yogi-adityanath-7107755/

ABOUT THE AUTHOR

Ramit Singh

Ramit Singh is a third-year student at Institute of Law, Nirma University. His interests lie in Constitutional Law and Arbitration Law.