New Delhi: The recent ordinance passed by the Uttar Pradesh government deals with unlawful religious conversions, and has come to be referred to as a law against “love jihad” by the media. This term denotes an Islamic warfare to convert unsuspecting girls into Islam by conning them by professing love.
The proposed 2020 Bill was drafted by the Uttar Pradesh State Law Commission in 2019, with the primary intention of targeting religious conversions through deceit, force or misrepresentation. Such provisions already exist in registered marriage laws nationally. The Act is not specifically targeted against “love jihad” conversions. It is a law to check religious conversions in general.
Known as the Vidhi Virudh Dharmantaran [Unlawful Religious Conversion] Act (2020), it was enacted by an ordinance. In the next six months, it will have to be confirmed through voting in the UP Assembly.
The Act, according to the UP government is meant “to check conversion with some stringent punitive provisions against individuals and organisations if found to have indulged in conversion, through manifestation of using force deceit by way of luring into marriage or any other improper manner”. The Act may have mentioned marriage through fraud as an offence, but it is not specifically directed at inter-faith marriages.
As per one of the provisions of the law, if someone wants to convert to another religion for the purpose of marriage, the district magistrate must be notified about this 60 days prior to the marriage. The magistrate will then conduct enquiries to check if the conversion is a consensual decision or if blackmail or deceit is involved in the process. There is potential for misuse in this provision.
The law, however, does not apply to those couples married under the Special Marriage Act since that Act has its own procedure to verify the circumstances. People of different faiths wanting to marry each other can follow the procedure laid down by the Special Marriage Act, and that does not involve any pre-marriage enquiry by the district magistrate.
This so-called love jihad law enacted by the UP government through an ordinance has been passed by other states as well.
The Madhya Pradesh Act was challenged in court in 1977. Eventually, in the Supreme Court, a Constitutional Bench heard the contending parties on an appeal titled Stanilaus versus the State of Madhya Pradesh, in which it upheld the Constitutionality of the Freedom of Religion Act.
In 2002, Tamil Nadu passed the Tamil Nadu Prohibition of Forcible Conversion Act. It was directed primarily at conversions carried out by Christian missionaries. But then Tamil Nadu Chief Minister, J. Jayalalithaa, under pressure from certain forces, got the Act annulled after six months.
In 2010, the Congress government of Himachal Pradesh enacted a Freedom of Religion Act. This was challenged in the HP High Court. The High Court after several hearings rejected the challenge, relying on the 1977 Supreme Court judgement. According to both the Uttarakhand and the Himachal Freedom of Religion Acts prior permission from the district magistrate is needed if conversion is done for the purpose of marriage.
The new Uttar Pradesh law makes forceful conversion a cognizable and non-bailable offence. The punishment is now more stringent and includes a prison term of six months to three years, apart from a fine of Rs 10,000. The UP government also referred to a September Allahabad High Court judgement where the bench said that if a conversion was carried out only for the sake of marriage, it was not valid.
On 11 November 2020, an Allahabad High Court Division Bench set aside the earlier single-judge judgement calling the UP Act as “incorrect”. The Division Bench upheld the Constitutionality of the Act.
Yet, the Allahabad High Court did not disagree that religious conversion when conducted only for the purpose of marriage was legally problematic.
In its Stainislaus verdict, the Supreme Court had said that religious proselytisation was not protected by Article 25 of the Constitution. In fact, Article 25 is subject to reasonable restrictions of morality, public order and health.
Therefore, it may not be easy to declare the UP law as unconstitutional, especially when seen in the context of the existence of similar laws in Uttarakhand and Himachal Pradesh.
In two cases—Lily Thomas and Sarla Mudgal—the Supreme Court made it clear that religious conversion done for the purpose of getting legal benefits, was unlawful. Hence, if Hindu men converted to Islam for the purpose of “legalising” a second marriage it would be both illegal and fraudulent.
Interfaith marriage is already permitted by the Special Marriage Act of 1954—and this is something that the UP government cannot tamper with—but there are certain consequences for such marriages related to succession.
So for a Hindu, the law will ensure a “separation” from the concerned person’s Hindu Undivided Family, because of which post the marriage, there won’t be any accrual to the property. For a Muslim, inheritance will have to happen through the Indian Succession Act, 1925 and not through Muslim personal laws that give greater advantages to a man.
Hence, it is vital how the Rules framed by government for enforcement of the Act are framed, so that no misuse of the Act takes place.
There is a rising percentage of Hindus, probably more than 60% of the 82% Hindu population of India, who feel that having conceded 1/3rd of the Undivided India to be partitioned into a Muslim governed Pakistan, that due to differential birth rates, conversions by marriages, and illegal migration into India from Bangladesh, India may cease to be a Hindu majority nation over the next few decades.
However irrational and unrealistic this fear may be, it needs to be addressed and overcome. But the bottom line is that politically it is suicidal not to address the fear by credibly ensuring that there is no possibility of such a situation from happening. Thus safeguarded and constitutionally valid laws such as Freedom of Religion Act are necessary for this objective.
Thus, measures such as equal application of family planning, enacting uniform civil code, abolition of triple talaq, and freedom of religion act within the framework of the Constitution will go a long way to dampen such fears. Hindus in the meantime need to debate on our differences and understand the inane false and mischievous divisions of race e.g., Aryan Dravidian theory, the baseless birth based Varna system, and divisive language, will only enable the continuing attrition on the Hindu population.
The verdict of the Supreme Court in late 2019 to allow re-building of the Ram Temple in Ayodhya not only elevated positively the healthy outlook in the Hindu psyche but the Muslim parties’ acceptance of the Court verdict has raised the confidence in the Hindu community that it is possible to settle emotionally charged disputes with Muslims by dialogue, if necessary monitored and decided by the judiciary.
On this front, all that remains is similarly arranged dialogues in court or through the mediation format, to re-build the last two remaining temples—Gyanvapi Kashi Vishwanath Temple in Varanasi and Krishna Janmabhoomi Temple in Mathura, which was much more demonstrably demolished by Mughal Emperor Aurangzeb.
If the Muslim population similarly agree as in the Ram Temple issue, then the Varanasi and Mathura sites can be restored with state cooperation in another location without much litigation. Judging by the diplomatic recognition of Israel by several Islamic theocratic nations, it seems the world is beginning in probing dialogue for compromise on theocratic or religious disputes. India can usher in the ancient Shastratha method introduced by Jagadguru Adi Shankaracharya for dispute resolution by debate and thereby unite as one nation as never before.
Dr Subramanian Swamy is an MP nominated by the President for his eminence as an economist. He is a former Union Cabinet Minister for Commerce and Law & Justice.