Religion may or may not be the opium of the people but a saviour to populist politicians it sure is. So, the UP Government has now targeted love. On 24 November, the UP Cabinet cleared the Uttar Pradesh Unlawful Religious Conversion Prohibition Ordinance, 2020, that makes religious conversion a non-bailable offence which may attract a prison term of up to 10 years and a fine of up to Rs 50,000 if such conversion is found to be “effected for marriage or through misrepresentation, force, undue influence, coercion, allurement or other fraudulent means”, and even social organisations arranging mass marriages of couples can be booked under the draconian law.
The scope of the ordinance is so wide and amorphous that any motive can be attributed and established by the state’s police, not particularly renowned for professional conduct. What makes the ordinance more dangerous, especially to the minorities, is that the burden of proof is on the accused and the convert, making a mockery of one’s rights to be considered innocent unless proven guilty. The ordinance further mandates that a person seeking to convert to another religion for marriage would have to inform the district magistrate two months in advance seeking permission for such marriage, otherwise it may entail a jail term up to three years and a fine of Rs 10,000.
Ironically, a September 2020 judgment by a single-bench of the Allahabad High Court in a case involving an inter-faith couple ruling against religious conversions only for the sake of marriage, which the Yogi Adityanath government has cited as justification for this ordinance, was overturned by a division bench of the same High Court only on 11 November.
The ruling by the division bench of Justices Pankaj Naqvi and Vivek Agarwal emphasised the values of our Constitution, “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 over a year.”
Quoting the 2017 Supreme Court Judgment in KS Puttaswamy vs Union of India, the learned Judges said that the “right to choose a partner irrespective of caste, creed or religion, is inhered under right to life and personal liberty, an integral part of the Fundamental Right under Article 21 of the Constitution of India.” The judgment further said, “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. An individual on attaining majority is statutorily conferred a right to choose a partner, which if denied would not only affect his/her human right but also his/her right to life and personal liberty, guaranteed under Article 21.”
On 1 December, Karnataka High Court gave a similar ruling upholding individual choice in a case involving an interfaith couple, saying that the “liberty relating to personal relationship of two individuals can’t be encroached upon by anybody irrespective of caste or religion.” There are other cases, like Shafin Jahan v. Asokan K.M (2018) in which the apex court had consistently upheld the liberty and choice of an adult individual. But the short-sighted UP government seems blind to such a clear constitutional position regarding the liberty of personal choice. There is no evidence on the ground that large scale religious conversion of Hindu women is rampant anywhere. Hardly a handful of cases have emerged and in most of these cases, the girls have refuted the allegation of any love jihad angle. In any case, inter-faith marriages are to be celebrated and not criminalised; they celebrate the unity and diversity of the country and usher in larger integration between religions and communities.
The ordinance strikes at the root of this diversity, as well as individual liberty and freedom of religion which are fundamental rights under the Constitution. Clearly the ordinance targets religious minorities and is likely to be misused to their disadvantage, marginalising them further.
Soon after the ordinance was promulgated on 28 November, the police arrested a Muslim youth in Bareilly district, allegedly on a complaint by a girl’s father. Arrests and harassment of Muslim youth married to Hindu women are now being reported every day. Meanwhile other states are also readying themselves to join the love-jihad bandwagon ~ like Madhya Pradesh, Haryana, Karnataka and Assam. Indian states are about to replace the notorious Khap Panchayats, they are likely to become even more tyrannical.
Soon, harassment by police or vigilantes and state persecution of interfaith couples will become the standard operating procedure in society ~ damned be the right to privacy and individual liberty. Obviously, such unlawful encroachment into citizens’ lives by the state will not end with inter-faith marriage but will progressively extend to more areas of individual rights and choices. Hindus can be married under the Hindu Marriage Act, 1955, which also applies to Hindu, Jains, Sikhs and Buddhists; the marriage involves rituals and the Saptapadi. Muslims are married under the Muslim Personal Law (Shariat) Application Act, 1937. An interfaith marriage between Hindus and Muslims or Christians will therefore call for conversion of either of the spouses under these laws. The only way such an interfaith marriage can take place without necessitating religious conversion is through the Special Marriage Act, 1954, which applies to all Indian citizens irrespective of their religion. This Act has some strange and archaic provisions, like the requirement of 30 days’ advance notice to the Registrar of Marriage, during which period the notice along with photographs of the marrying couples are prominently displayed at the Marriage Register’s Office for anyone to raise valid objections, possibly to prevent misuse or fraud.
But the actual purpose it is serving is to alert the vigilant groups and relatives for hounding the consenting couple which may result even in their murder, especially when the union is against the wishes of the family. Now this UP ordinance is serving the same purpose; only a few days ago, based on complaint by a vigilant Hindu outfit, police prevented the marriage between a Hindu girl and a Muslim boy that was about to be solemnised in Lucknow with the sanction of both families, on the ground that it needed the sanction of the District Magistrate under the ordinance, even though it was not a forced conversion or caused any offence mentioned in the ordinance. The locus standi of the vigilant group is also mystifying. It cannot get more absurd than this.
Marriage is more a legal and social institution rather than a religious one, and any attempt by the state to interfere in the union between two consenting adults reeks of nothing but religious prejudice, vendetta and wilful disruption of social harmony by pitting one religion against another. It is nothing but a frontal assault upon the Constitution. The UP Government should have considered the Supreme Court judgment in Hadiya’s case overturning the Kerala High Court’s annulment of her marriage to a Muslim boy after converting to Islam, in which the court reminded that the freedom to choose a religion or a life partner is at the heart of Indian plurality and must be guarded overzealously.
Love between couples belonging to different faiths is a cause for celebration, especially when distrust and cleavages run so deep in our society between members of different communities. Love unites and is the only antidote against hatred. But it is this love that is increasingly being targeted by the fundamentalist vigilant groups that operate outside law with impunity, often with the State’s tacit support, to disturb social harmony that ultimately affects economic development in many ways. One has not forgotten about the sad case of the wonderful Tanishq advertisement for jewellery featuring an inter-faith couple that was meant to celebrate our unity in diversity; it had to be withdrawn due to the backlash by radical right-wing elements in the social media.
Only last month, Netflix had to face their wrath for showing a Hindu woman and a Muslim man share a kiss for its TV series A Suitable Boy. In all these cases, the standard response of the political executive is that it hurt the “religious sentiments” of the majority community, as if they are the sole guardians of their sentiments and emotions. When such attempts at lumpenisation of society get official approbation rather than unequivocal opprobrium, who can prevent society’s slide down a steep slippery slope? Like on many occasions, Indians can only pin their hopes on the Supreme Court to rescue our cherished democracy from such brazen onslaught by short-sighted politicians who not only lack imagination but have abandoned their reason as well.