The UP government which has been pushing for a law on “love jihad”, a term deliberately and maliciously used to insult religious sentiments of Muslims, and received support from other BJP-ruled states, to send Muslim men to jail and persecute them, has managed to pass an ordinance on “love jihad”. The “love jihad” law intends to check inter-faith marriages and “forceful conversion”.
The Prohibition of Unlawful Religious Conversion Ordinance, 2020, recommends 1-5 years imprisonment and puts the onus on the defendant to prove that conversion of the woman was not for marriage or by use of force, allurement, etc. While putting the onus to disprove a criminal allegation itself would not be good in law, the defendants are expected to be jailed for the time being, till they prove otherwise, by a government that actually wants to see them behind bars anyway. The abuse of UAPA and sedition laws recently have shown how many Muslims have been arrested and kept in jails for long periods without bail. Instances of divorce have also been criminalised by the BJP government which intends to either “throw” them out or put them in jails.
The ordinance recommends a jail sentence of 3-10 years if the woman is from SC/ST community or if the offence is seen as part of mass conversion. The community of SCs/STs who do not receive similar privileges or treatment like others have often turned to Islam or Christianity and even threatened to convert on many occasions after being treated as outcasts in the society. The purpose of this law can also be seen as an attempt to deter such individuals from converting to other religions, away from the majority faith that the ruling party stands with and whose objectives it has furthered on many occasions.
The UP government had also based its attempts at forming a law against “love jihad” on a ruling by the Allahabad High Court (still not named Prayagraj High Court due to legal obstacles) which had earlier held that “religious conversion for marriage was unacceptable”. However, the Allahabad High Court in its latest ruling has called its previous ruling as “bad in law” and held that the right to choose a partner or live with a person of choice was part of a citizen’s fundamental right to life and liberty. Justices Pankaj Naqvi and Vivek Agarwal made the observations while quashing an FIR lodged by a man against his daughter’s husband, whom she married after conversion to Islam.
“Interference in a personal relationship would constitute a serious encroachment into the right to freedom of choice of the two individuals,” they said. The judges cited Article 21 of the Constitution on personal liberty. “To disregard the choice of a person who is of the age of majority would not only be antithetic to the freedom of choice of a grown up individual but would also be a threat to the concept of unity in diversity,” they said. “We do not see Priyanka Kharwar and Salamat as Hindu and Muslim, rather as two grown up individuals who out of their own free will and choice are living together peacefully and happily for over a year,” the bench said.
Where the conversion has been forceful (although there is no point of “force” where one does not quite accept the other’s faith) it should be for the victim to prove the use of force but the UP government has brought a law with the presumption that cases of inter-faith marriages are “love jihad” meant for forceful conversions and hence put the burden of proof on the defendant himself. The ordinance is not only bad in law in this respect but also because it interferes with a couple’s fundamental right to life and personal liberty. In the name of doing “justice to women” the ruling party has thrown many a Muslim men behind bars.
While the UP government’s ordinance stands in contradiction with the ruling of the Allahabad High Court, it would be for the appellate courts to swiftly deal with issues that raise constitutional questions and important points of law. Several laws and ordinances passed by the ruling government concerning statehood, citizenship, marriage and divorce, and fundamental rights, cannot be simply kept as caseloads or burdens of top court. These matters must be settled once and for all and swiftly so as not to burden the citizens under them and to deter governments from enacting unconstitutional laws one after another in pursuance of a certain agenda.