India's 'love jihad’ laws: Are they constitutionally valid?

‘Love jihad’ as a term itself is an oxymoron

Noor Tarun Sawhney Apr 03, 2021
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‘Love jihad’ as a term itself is an oxymoron. While the first word is synonymous with compassion and empathy, the latter is entwined with struggle and strife. Despite the incongruent nature of the phrase, we seem to find it making headlines in present times, particularly in relation to interfaith alliances in India.

Lately, it is a term used to further the Islamophobic complot that assumes Muslim men target women from non-Muslim communities with the intention of converting them to Islam by pretending to be in love.

The idea of ‘love jihad’, also known as ‘Romeo Jihad’, has gained increasing notoriety, especially amongst Hindu, Sikh, and Christian communities in the wake of 2009, after the term was created as part of a propaganda campaign.

This attention and one-dimensional belief in the ‘perils’ of ‘love jihad’ has led to multiple unfounded allegations in the states of Kerala, Uttar Pradesh, and Karnataka.

‘Love jihad’ law

Coinciding with the election of Narendra Modi as prime minister, and the rise of the Yogi Adityanath in the state of Uttar Pradesh, theories pertaining to ‘love jihad’ have seen a dramatic increase in number. This has resulted in the Uttar Pradesh government passing the ‘Uttar Pradesh Prohibition of Unlawful Religious Conversion Ordinance, 2020’, unofficially recognised as the ‘love jihad law.’

Under the terms of the ordinance, the presiding judicial official would have the discretion to decide whether the conversion was through compulsion; the offending person could then be denied bail and sentenced to 10 years in prison.

Other Indian states that followed the Uttar Pradesh model include Madhya Pradesh, Haryana, Karnataka, and now Gujarat. It is of interest to note that all five states are presently under the leadership of the Bharatiya Janata Party (BJP), the current ruling party of India.

India is the world's largest democracy. It defines itself as a country that not only recognises women as equal but grants them the right to choose whom (and how) to marry. It is, therefore, unconstitutional to pass a law that maintains such a blatant disregard for the democratic ideals espoused by the nation. The implementation of the ‘love jihad’ laws has been rightfully pointed out as invasive to personal privacy with respect to choosing one’s marital partner.

According to the Puttaswamy judgment of 2017, the Supreme Court of India recognises privacy to be the ‘preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual,’ automatically signifying the violation posed by its implementation. Another aspect of the law that may be considered unconstitutional is the clear obstruction to the right to freedom of religion. By banning inter-faith marriages, the state plays a crucial role in imposing its choice of religion upon citizens.

Are these laws constitutional?

Several integral legal authorities, including Supreme Court judges, have stated that it is difficult to uphold the constitutional validity of such a law. Former judge of Kerala High Court, Justice M Sasidharan Nambiar stated that "the ordinance will not survive the test of constitutional validity as it violates Article 21 of the Constitution which guarantees the personal liberty of every citizen of this nation irrespective of religion, caste, and gender." 

This personal liberty is of great consequence in a country like India, which continues to remain in the clutches of a divisive politics of caste and community. It can be further argued that the presence of inter-caste marriages is integral to the eradication of caste prejudice and untouchability.

While the world continues to fight for equality, moving beyond the constraint of gender with respect to LBGTQ+ rights, ordinances like the ‘love jihad’ laws seem to notify a certain regression in our thinking. By stripping away the personal freedom that forms the bedrock of a diverse nation, the state opens itself up to criticism on newer, detrimental grounds.
 
(The writer is a 16-year-old Indian student. The views are personal. She can be contacted at noortarunsawhney@gmail.com)

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