“Love jihad” ordinance enacted by Uttar Pradesh aims to penalise a sarkari honour crime

The law represents an attempt by the BJP to push a toe out of the constitutional ambit, to begin to build the legal infrastructure of the Hindu Nation

Representative Image (Photo Courtesy: Social Media)
Representative Image (Photo Courtesy: Social Media)
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Kavita Krishnan

UP’s new “love jihad” ordinance is a sarkari honour crime against inter-faith relationships. With it, the District Magistrate becomes the government-approved khap panchayat which can arbitrarily decide to separate lovers; deem a marriage illegitimate, and sentence a Muslim man to prison for 5-10 years.

The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020 – which the Uttar Pradesh Government and the ruling BJP are calling the “love jihad prevention ordinance” gives legal cover and incentives to honour crimes – which should more accurately be described as crimes against women’s autonomy.

Defenders of the Ordinance claim that it does not criminalise interfaith love, and only criminalises forced conversion and marriage based on a false identity (i.e. cases where a Muslim man allegedly masquerades as a Hindu to seduce a Hindu woman). But if this were the case, why does the ordinance allow the parents, brother, sister, or any other relation by blood, marriage, or adoption to lodge an FIR?

If the ordinance is indeed intended to protect (Hindu) women from forced conversion or deceit by Muslim men, why not allow the woman alone the right to file an FIR?

The answer is simple. If a woman wants to file a complaint against a man who has cohabited with or married her while hiding his true name and identity, she can very well do so under Section 493 IPC and needs no new law.

The new ordinance has been enacted solely as a legal weapon against women’s autonomy. Parents, khap panchayats and violent Hindu supremacist outfits will now get a legal pretext for the violence they inflict on interfaith couples and Hindu women in relationships with Muslim men.

As a cartoonist put it, the term “love jihad” is “a shorter way of saying we hate Muslims and think of women as property.” The word “love” is not incidental in the phrase “love jihad”. “Love jihad” laws are not meant to address allegations of rape or coerced conversion or marriage under false pretences or anything else of which a woman may herself complain.

In 2014, The Hindu tracked 583 rape cases decided by New Delhi’s district trial courts in 2013, and found that over 40 percent of “what is classified as rape (in Delhi Police files) is actually parental criminalisation of consensual sexual relationships, often when it comes to inter-caste and inter-religious couples.”

“Love jihad” allegations and laws are acts of violence against any Hindu woman’s decision to love a Muslim man. They are an attack on a woman’s right to love someone of her own choice.

It is important to remember here that violence against women’s autonomy is the leading form of gender violence in India, and that such violence hides in plain sight, masquerading as “protection of women from rape.”

Article 25 of the Constitution provides for the freedom to profess, practice and propagate religion subject to public order, morality and health. Various courts have upheld this view including the Kerala High Court. The term ‘Love Jihad’ is not defined under the extant laws. No such case of ‘Love Jihad’ has been reported by any of the central agencies. However, two cases from Kerala involving inter-faith marriages have been investigated by the National Investigation Agency (NIA).

The UP Chief Minister Yogi Adityanath had issued a death threat to Muslim men in relationships with Hindu women, saying that such “love jihadis” should prepare for their “last journey”.

In the same speech, the CM had cited Allahabad High Court’s observation that conversion should not be resorted to only for marriage, as the basis for a new anti-conversion law to curb “love jihad”.

However, a more recent verdict of the Allahabad High Court has dashed away that flimsy legal pretext for criminalising interfaith marriages. This verdict by a Bench of Justices Pankaj Naqvi and Vivek Agarwal found that the previous High Court’s judgements in the Noor Jehan and Priyanshi cases (in which a Muslim woman converted to Hinduism, and a Hindu woman to Islam respectively) holding that “conversion just for the purpose of marriage is unacceptable”, were “not laying good law”.

If these judgements are not good law because they failed to appreciate and protect the life, liberty, and freedom to choose a partner, naturally a law based on those judgements also violates the right to life and liberty and freedom to choose a partner.

The Allahabad HC observed that “None of these judgments dealt with the issue of life and liberty of two matured individuals in choosing a partner or their right to freedom of choice as to with whom they would like to live.”

If these judgements are not good law because they failed to appreciate and protect the life, liberty, and freedom to choose a partner, naturally a law based on those judgements also violates the right to life and liberty and freedom to choose a partner.

In a separate case, an Allahabad High Court verdict said, “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.”

The courts and the constitutional courts, in particular, are enjoined to uphold the life and liberty of an individual guaranteed under Article 21 of the Constitution of India. The right to live with a person of his/her choice irrespective of religion professed by them is intrinsic to right to life and personal liberty. Interference in a personal relationship would constitute a serious encroachment into the right to freedom of choice of the two individuals….and 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.”

The new UP “love jihad” ordinance is a legal tool to harass inter-faith couples and force them to undergo the trauma and humiliation of having their love placed at the mercy of the District Magistrate. It is a tool to arrest Muslim men in interfaith relationships. It will force every interfaith couple in UP to appeal to the judiciary for the seal of approval on their relationship. And till the matter is resolved in courts, Muslim men involved will be in prison for months, while the Hindu women involved will be imprisoned in their parental home or in some torture chamber run by a Hindu supremacist outfit. The whole purpose is to deter and terrorise inter-faith love.

Justice Leila Seth, in her powerful plea to repeal Section 377 that criminalised homosexual relationships, wrote, “What makes life meaningful is love. The right that makes us human is the right to love. To criminalise the expression of that right is profoundly cruel and inhumane.” (‘A mother and a judge speaks out on Section 377’, The Times of India, 26 January 2014.)

Today, the Hindu supremacist outfits are spreading hate even against a kiss exchanged between a Hindu woman and a Muslim man in a Netflix film based on a novel by Vikram Seth, son of Justice Leila Seth!

The laws criminalising “love jihad” in UP and other BJP-ruled states are indeed cruel and inhumane. They represent the attempt by the BJP to push a toe out of the Constitutional ambit, to begin to build the legal infrastructure of the Hindu Nation.

The Manusmriti, the Nuremberg Laws of Nazi Germany and the odious laws criminalising inter-racial love in apartheid USA and South Africa have been consigned to the dustbin of history and are abhorred the world over.

The attempt to enact the same kind of laws in 21st Century India will be resisted, tooth and nail, by movements of youth and women.

Courtesy: The Leaflet

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