Are you an adult and thinking of getting married? Do you believe you have the freedom to marry the partner of your choice, even if he/she is from a different caste? If you think the answer to this question is ‘Yes’ on the premise of the Fundamental Rights granted by the Indian Constitution, then your beliefs are soon going to be shattered. The Yogi Adityanath led UP Government just passed an ordinance on 24th November, 2020 which indirectly bans marriage for religious conversion and also seeks to criminalize Interfaith marriages in the state of Uttar Pradesh.
As per the provisions of this ordinance, “No person shall convert or attempt to convert, any other person from one religion to another through misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage”. Further, any religious conversion for marriage would require the approval of the District Magistrate, who would in turn has to give the public an opportunity to voice their objections against such conversion, thus paving the way for the religion watchdogs (read: right-wing parties) to poke their noses and prevent inter-caste marriages.
For the time being, let us keep the Government’s personal agenda to side and spare a thought on the fact whether this ordinance is even constitutionally valid? If you were to ask me, the UP Government has clearly shown the audacity to rise even above the esteemed Constitution of India. Here’s why:
First, marriage is an extremely personal affair and the right to marry someone of your choice is not only a matter of constitutional liberty and individual autonomy, but also of privacy and dignity. Article 21 of the Constitution of India grants an individual the fundamental right of privacy and protects his/her ability to make intimate choices and decisions. Even in the Hadiya case of 2018, Supreme Court rejected the allegation that was forcefully converted to another religion just for the sake of marriage, and held that “How Hadiya chooses to lead her life is entirely a matter of her choice”.
Second, the proposed ordinance aims to deprive a woman of her agency and tries to control her female sexuality. The ordinance is based on the dull-witted premise that women are incapable of making informed decisions and could easily fall prey to forced conversions. The proposed ordinance would only manifest itself into the harassment of interfaith couples, putting our constitutional democracy to bad light.
Now that we have some idea about the ‘lawlessness of this law’, let us bring back our attention to what might be the Government’s real agenda behind this. Hiding on the back of protecting women against forced religious conversion as an evil pretext, the Government aims to resurrect its old venom of curbing ‘Love Jihad’ from the buried casket. This time with vengeance.
‘Love Jihad’ is a popular concept steeped in Hindu religious conspiracy theories, arguing that Indian Muslim men are waging a war against the Hindu population by enticing and marrying young innocent Hindu girls. This alleged war is said to reach its culmination when these Hindu girls are forcibly converted to Islam after marriage, thereby increasing the numbers of Muslims and reducing the number of Hindus in the country. The argument is baseless and can be challenged on two grounds:
Firstly, it implies that Hindu-Muslim marriage is nothing but an ‘execution a conspiracy’, rather than two consenting adults exercising their fundamental right to choose their partners.
Secondly, Love Jihad applies only in the case of a Muslim Man marrying a Hindu woman and no objections are made to a Hindu man marrying a Muslim woman. This also makes the idea behind the ordinance deeply communal.
Not only the intent behind the law is subject to questionable intelligence, but also the provisions framed therein seem vague and far distant to any meaningful logic. But rationality is again a far-fetched expectation from the right-wing Government. Let us take Section 12 of the proposed ordinance as an example. It disturbingly allows ‘any relative of the Hindu woman’ to challenge the legitimacy of her marriage. Not only that, the ordinance states that ‘reverse burden of proof’ would apply in this case, implying that the person who has facilitated or caused the conversion (read: Muslim Man) has to prove that the conversion was lawful and not forced, while disregarding the converted person’s (read: Hindu girl’s) testimony of having given his/her consent to the conversion and marriage. This directly violates the right to be deemed innocent until proven guilty. Simply creating mechanisms for hassle-free filing of a complaint by the ‘converted’ against a forced conversion, could have solved the problem without troubling the constitutional muster.
The question here reverberates far more from the above tyranny. This highlights the orthodox and deep-seated patriarchal Hindu mindset, where a woman is regarded as little more than cattle who is handed over from her parents to her husband, with little regard in this decision-making. This communal disharmony not only fails to protect women’s rights, but rather it further encourages the curtailment of their, free-will, mobility, consent, autonomy, civil liberties, social interactions, and freedom of choice.
The opinion placed in this article might seem biased and deceitful, but reality has started unfolding itself within a week of the ordinance being passed. A group of hecklers from the Bajrang Dal forcibly separated a seven-week pregnant Hindu woman from her Muslim husband on grounds of alleged forcible conversion, mistreated her while she was in custody and this led to the unfortunate demise of her baby, due to no fault of the couple. Six more cases have been reported just within a week of passing of this controversial law. Further, if a person is found guilty of violating this law, he/she may be imprisoned upto ten years, with offences being non-bailable.
The law is not only regressive, oppressive and ultra vires of the Indian Constitution, but is also brimming with legal blunders, virtually indicating that its real intent was to harass people so much, that religious conversion per se is automatically discouraged. Although the law has understandably not used the words ‘Love Jihad’, but it is not difficult to conclude the actual political agenda behind it.
Akash Singrodia is a qualified CA and is a current second year PGP student at IIM Ahmedabad