The BJP’s manifesto for the upcoming Uttar Pradesh elections shows scant disregard for the Constitution. The party’s Lok Kalyan Sankalp Patra states that a minimum imprisonment of 10 years and a fine of Rs 1 lakh would be imposed on those found guilty of committing love jihad.
The Uttar Pradesh Prohibition of Unlawful Religious Conversion Ordinance, 2020, was cleared by the state cabinet on November 24, 2020, following which it was approved and signed by Governor Anandiben Patel. Under the law, which came into force on November 28, 2020, those found guilty of forcibly converting someone would be sentenced to a jail term, ranging from one to five years, and a minimum fine of Rs 15,000. If the person was convicted of converting a minor or a woman from the SC/ST community, the jail term could be extended to 10 years and the fine to Rs 25,000. If forced conversions were carried out at a mass level, the guilty could be sentenced to jail term up to a maximum of 10 years and a minimum fine of Rs 50,000.
The law makes conversion non-bailable with up to 10 years of jail term if undertaken through misinformation, unlawfully, forcefully, allurement or other allegedly fraudulent means and requires that religious conversions for marriage in Uttar Pradesh be approved by a district magistrate. The law also encompasses strict action for mass conversion, including cancellation of registration of social organisations involved in mass religious conversion. However, the law itself contains no mention of love jihad. Love jihad is a term used by some to refer to interfaith marriage between a Muslim man and Hindu girl. The ordinance was passed days after the Yogi Adityanath government launched “Mission Shakti”, a campaign for the safety and security of women in the state. In 2019, the Uttar Pradesh State Law Commission under Justice Aditya Nath Mittal had compiled a report on unlawful religious conversion and proposed a draft Uttar Pradesh Freedom of Religion Act, 2019.
The long title of the draft bill stated: “to provide freedom of religion by prohibition of conversion from one religion to another by misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage and for the matters connected therewith or incidental thereto”. The Commission stated that the Indian Penal Code is “not sufficient” to prevent conversion.
The Himachal Pradesh assembly in 2019 passed a bill against conversion by force, inducement or through marriages solemnised for the “sole purpose” of adopting a new religion. Madhya Pradesh and Haryana already have such a regulation in place.
The term love jihad first drew attention in 2009 after Catholic and Hindu groups in Kerala and Karnataka, respectively, reportedly said that women from their communities were being forcibly converted to Islam. Enacted in 1954, the Special Marriage Act was legislated to govern marriages that could not or were not performed according to religious norms.
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We live in times when inter-caste and inter-faith marriages have increased with modernisation and development. Not only are they beneficial for a progressive society, but they also promote socio-economic development. The elopement and conversion of Hindu women are associated with Hindu female purity. This is directly linked to Hindu male virility that would reaffirm itself in the public-political domain. It is astonishing that in 2020, a woman is being identified as an exclusive property of the man, and preserving her virtue becomes a legal necessity.
Last year, the Allahabad High Court refused to grant protection to three interfaith couples, citing non-compliance of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2020.
Uttar Pradesh is among a host of BJP-ruled states that have enacted anti-conversion laws to penalise love jihad—a pejorative term coined by the right-wing groups to push the conspiracy theory that Muslim men charm Hindu women into marrying them with the sole purpose of converting their brides to Islam.
Justice Siddharth of the Allahabad High Court observed that the couples did not follow the mandatory requirement of submitting a declaration form before the district magistrate 60 days prior to conversion. The couples had approached the High Court seeking protection from family members who were allegedly threatening them.
In the first case, a Muslim woman got married to a Hindu man. She told the Court that she had converted to Hindu religion and a certificate by a “Sanskar Adhikari” of the Arya Samaj was issued. However, the Court said: “There is no evidence of conversion of petitioner to Hindu religion. Without conversion to Hindu religion, the marriage of the petitioners cannot be said to be in accordance with law.”
In the second case, a Muslim woman married a Hindu man, who adopted Islam as his religion. Both of them entered into “nikah”, the Court noted. The couple also submitted a certificate of acceptance of Islam by the man signed by a “kazi”. The Court, however, citing Sections 8 and 9 of the law, held the marriage illegal.
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Section 8 of the law states that one who desires to convert their religion has to give a declaration in a prescribed form at least 60 days in advance to the district magistrate or the additional district magistrate that they wish to convert on their own and with their consent, without any force, coercion, undue influence or allurement.
On the other hand, Section 9 mandates that the converted person shall send a declaration in a prescribed form within 60 days of the date of conversion to the concerned district magistrate.
“The certificate of kazi is of no consequence in view of the above ordinance and the conversion of the petitioner from Hindu religion to Islamic religion is in contravention to the aforesaid ordinance…,” Justice Siddharth said.
In the last case, a Muslim woman converted to Hindu religion to marry a Hindu man. The Court, however, held that there was “no evidence of conversion” of the woman to the Hindu religion.
Uttar Pradesh’s new anti-conversion ordinance, aimed at curbing cases of love jihad, reflects the philosophy of a khap panchayat, with the objective essentially being to subjugate women, former Delhi High Court Chief Justice AP Shah had said. The retired judge said that several of its provisions violate the fundamental right to practice religion, striking at the very root of the right to life and liberty guaranteed under the Constitution. This ordinance, he said, was capable of great public mischief.
—By Adarsh Kumar and India Legal Bureau