The following is the transcript of a speech delivered by former Delhi high court chief justice A.P. Shah to a group of Delhi high court women lawyers on January 29. It has been edited lightly for style and clarity.
Through the preamble of the constitution of India, the citizens of India are assured that four things will be secured for them: first, justice, which is social, economic and political justice; second, liberty of thought, expression, belief, faith and worship; third, equality of status and of opportunity; and fourth, fraternity, where the dignity of the individual and the unity and integrity of the nation are protected.
This last promise, that is, of “fraternity”, with its roots in the Latin for “brother” or “brotherhood”, points to a desire for a harmonic coexistence of people of all kinds. But when the idea of fraternity becomes fragile and on the verge of disintegration, the existence of democracy itself is threatened.
What is the ‘love jihad’ ordinance?
Unfortunately, this idea of fraternity is what is especially being tested the most in India today. We are watching this attack on this most fundamental of democratic principles play out in our backyard, through the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020.
This ordinance has been promulgated to combat the perceived threat of “love jihad”, a term commonly used by the Hindutva political leadership to describe interfaith relationships and marriages. The ordinance makes it a criminal offence for a person to convert another by coercion, misrepresentation, fraud, and so on.
There is nothing objectionable in that in itself. But it grossly violates the freedom of conscience and the fundamental right to practise religion guaranteed under Article 25 and also strikes at the right to life and liberty guaranteed under Article 21.
Furthermore, and perhaps more troublingly, this ordinance operates on the presumption of, and even reinforces, the notion of exclusion. It presumes that some categories of the Indian population must be excluded and “othered”, and through this, reinforces the idea of communalism as a desirable end in itself.
To worsen matters still, it thrives on and perpetuates the emotion of fear: certain people are effectively being told, through such ordinances, laws and policies, that transgression will invite criminal sanction and accompanying ostracism.
How does it do this? It does in the way the law is structured, with its broad sweep, and turning many accepted principles of criminal law on their head.
Ordinarily, in any criminal case, the burden of proof is on the prosecution. Under this ordinance, however, every religious conversion is presumed to be illegal. The burden of proof (presumption of guilt) now lies on the person accused of illegal conversion to prove that it is not illegal. The offence is cognisable and non-bailable, so the police can arrest the accused without a warrant.
The ordinance requires that a person intending to convert to another religion will have to approach the district magistrate who would conduct an inquiry on the conversion.
If the conversion is for an “allurement”, or an “inducement” then it is illegal. The term “allurement” is defined very broadly. The ordinance spans the sacred and the profane. A gift, gratification, easy money or material benefit, the promise of a better lifestyle, the illusory wrath of divine displeasure or otherwise – any or all of these can amount to an allurement.
Terrifyingly, it must be noted, even a simple wedding gift can amount to an “allurement”.
Interestingly, reconversion is not illegal even if it is caused by fraud or force. So, if a person is converted voluntarily, then he might be arrested, but if he’s forced to reconvert, then there is no criminal offence.
Sentencing is most problematic. One to five years’ imprisonment is the ordinary term, and if the victim is a minor, a woman or a member of a Scheduled Caste or Tribe, the term is up to ten years. If a woman is a professor, and converts to another religion, the accused is liable to be sentenced to ten years imprisonment.
Finally, an aggrieved person can lodge a complaint against anyone, including parents and siblings. A lot of people can be brought under this net. This law is capable of great public mischief.
I find it difficult to believe that such a law could be passed by the government in a country that is governed by rule of law and the Constitution.
Are anti-conversion laws news?
Anti-conversion laws are not new. Such laws are already in force in eight Indian states, namely, Arunachal Pradesh, Odisha, Madhya Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, and Uttarakhand. However, these laws do not pertain to interfaith marriages.
A version of anti-conversion laws in interfaith marriages was floated over a century ago in a 1909 book by U.N. Mukherjee. The Hindu Mahasabha tried to gather support around the idea that Muslim men are waging “jihad” in India through love marriages. This “love jihad” is a deliberate campaign which claims that Muslim men use love, seduction and trickery to convert Hindu (and Christian) women to Islam.
The women are, therefore, told that they should keep themselves “pure” in order that they might be fit mothers of the nation.
Khap panchayats also follow a similar philosophy. The objective is essentially to subjugate women. A Khap leader even went so far as to infamously say that “only whores choose their partners”.
In reality, this is all wrong. There were NIA (National Investigation Agency) inquiries carried out in cases in Karnataka and Kerala, for instance, in Hadiya’s case, all allegations of “love jihad” – that Muslim men are waging jihad through such marriages – has been proven to be wrong.
Actually, interfaith marriages are still a rarity. Over 90% of marriages in India are still arranged marriages or approved by families, and involve persons of the same faith or religion. Very few marriages are inter-caste (I believe less than 5%), and an even smaller number (around 2-3%) are interfaith.
Further, according to reported 2011 census data, 79.80% of the population of India is Hindu, 14.23% Muslim, 2.30% Christian, 1.72% Sikh, 0.70% Buddhist, and 0.37% Jain. So, in practical terms, this ordinance is aimed at the smallest percentage. This brings us back to full circle to the concept of exclusion and fear that such laws are attempting to prop up.
In truth, this ordinance runs contrary to the spirit of interfaith and inter-caste harmony that has been advocated for decades in India. Ambedkar was a big votary of this and recorded it emphatically in his Annihilation of Caste. Indeed, Ambedkar is also credited with demanding that the word “fraternity” be included in the Preamble to our constitution, which ties in closely with notions of interfaith and inter-caste harmony.
I have personally experienced it when a Muslim college friend decided to marry a Hindu girl from an influential family, which made all efforts to thwart the relationship, including bringing the police in. The matter eventually reached the Bombay high court, where Justice G.N. Vaidya quashed all kidnapping and other charges, and in a very emotional moment, delivered the judgement, giving them his blessings.
Indeed, my own marriage is interfaith, as is among one of my children. Such relationships should be celebrated. Instead, we are criminalising them.
How can the judiciary help?
The next obvious question to ask is, with the executive and the legislature having failed us on this front, what can the third arm of government, that is, the judiciary, do?
The ordinance has already taken its toll. There are large scale arrests of people. Every day one reads stories of separated couples. It is clear that the ordinance must be struck down immediately, and certainly not permitted to be enacted into statute. At least three other BJP-ruled states are contemplating the adoption of similar laws. We need to stop this utter destruction of freedoms guaranteed by the Constitution. This can only be done by the judiciary.
As ever, high courts in India have held their own and have delivered stellar judgements that reinforce the principle that individual autonomy is all that matters in interfaith marriages.
In a recent case, even a division bench of the Allahabad high court in Uttar Pradesh held that “marriage is a matter of choice, and every adult woman has the fundamental right to choose her partner”. Even if such a decision encourages other important decisions, including the choice of religion, the state cannot intervene. It overruled an earlier decision of a single judge holding that conversion to Islam was valid only when it was predicated on a change of heart and on an honest conviction.
Indeed, at least two high courts (Allahabad and Gujarat) have shown great courage in granting relief under such discriminatory laws. As far as I am aware, even the Himachal Pradesh high court has held that the requirement under the Special Marriage Act of giving prior notice of 60 days is not mandatory.
If we look at Supreme Court jurisprudence on Article 25, of the Constitution of India, which guarantees the freedom to profess, practise, and propagate one’s religion, in the 1954 case of Ratilal Panachand Gandhi versus State of Bombay, the court held that:
“Every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for edification of others.”
In a 1977 decision in Rev Stainislaus versus State of Madhya Pradesh, the Supreme Court examined whether the right to practise and propagate one’s religion also included the right to convert. The court upheld the validity of the earliest anti-conversion statutes: the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968, and the Orissa Freedom of Religion Act, 1967.
The court said that the right to propagate did not include the right to convert any person, noting as follows:
“It has to be remembered that Article 25(1) guarantees “freedom of conscience” to every citizen, and not merely to the followers of one particular religion, and that, in turn, postulates that there is no fundamental right to convert another person to one’s own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the “freedom of conscience” guaranteed to all the citizens of the country alike.”
The court further said:
“It has to be appreciated that the freedom of religion enshrined in the Article  is not guaranteed in respect of one religion only, but covers all religions alike, and it can be properly enjoyed by a person if he exercises his right in a manner commensurate with the like freedom of persons following the other religions. What is freedom for one, is freedom for the other, in equal measure, and there can therefore be no such thing as a fundamental right to convert any person to one’s own religion.”
In my opinion, the decision in Stanislaus is flawed and must be revisited. However, this is not the subject of discussion today. Neither of these Supreme Court cases dealt with the question of freedom of choice in the context of religion and marriage. Most recently, in the now well-known Hadiya case, the Supreme Court said that the Kerala high court had transgressed on Hadiya’s constitutional rights by questioning her right to marry.
But I still worry.
Already the Supreme Court has refused to stay this ordinance. The Chief Justice of India has made some observations about whether falling in love is a crime, etc., but nothing beyond that.
Unfortunately, there seems to be no parity when it comes to the exercise of power by the Supreme Court. Some issues, like farm laws and Maratha reservations capture the court’s attention, but others, like the Citizenship Amendment Act, Article 370 and Kashmir, electoral bonds, and this “love jihad” ordinance, mysteriously do not evoke a response.
Hadiya is an individual case. My fear is that the Supreme Court may not be as proactive when it comes to the larger question of the constitutionality of the ordinance itself. It may end up just sitting on the issue when it comes up before the court.
Our Supreme Court is regarded as one of the most powerful courts, but is it really, especially regarding constitutional protections?
Why should we be concerned?
In this context, you may well ask, why should ordinary people be concerned.
The ordinance itself is mostly rhetoric. This is a mechanism for the ruling party and politicians to pander to vote banks and create factions in society. So we should treat all this with appropriate caution and wariness.
More than whom it targets, the ordinance and the accompanying rhetoric is symbolic of how social fabric is being aggressively and fundamentally changed by the sheer brute force of the executive. I think this is what should be troubling us.
You can see that overall, the ordinance does at least four things: first, it reinforces the idea of a patriarchal society, a patriarchal Hindu state, to be precise. Patriarchy and “manhood” feel threatened as women get liberated in modern society.
The current BJP-led government has had a long infamous history of revivalism, seeking to return to some imagined glories of ancient Indian civilisation. This takes the form of cultural nationalism, where anyone celebrating “western” festivals such as Valentine’s Day or even couples merely holding hands are ostracised and attacked.
As religious nationalism, it endorses the two-nation theory, which envisages a nation under Hindu rule, a Hindu Rashtra in Akhand Bharat (a United India). As Sarvakar propounded, “Hindu Rashtra (state), Hindu Jati (race) and Hindu Sanskriti (culture).” In this context, Muslims and Christians are viewed as foreigners, who are not indigenous to the territory of India, and whose religion originated in a separate holy land.
The government is operating with a stated, explicit communal agenda – of pitting community against community, whether it is in the Citizenship Amendment Act protests, where it was Hindus versus Muslims, or in the case of the ongoing farmers’ agitation, where it is being portraying as a dangerous Khalistani revival.
This brand of nationalism that is being practised in India today is no longer about merely harassing people for public displays of affection. It is much much more grave, and slowly creeping into every aspect of our lives.
People are being forced to sign up to a singular ideology. The beef ban and protests against cow slaughter are ways to prevent people from eating the food they want and effectively forcing a life choice on them.
What our leaders and their sycophants forget is that enforced nationalism cannot promote true culture. When a practice is arbitrarily prescribed and foisted, creative freedom is suppressed or vanishes completely. Only free souls can create abiding cultural values
Second, this ordinance pursues a regressive agenda. It demands that individual autonomy and free will must always be subjugated to community purpose. And of course, that community purpose itself is defined by a few individual men, who are presumed to know what is best for the rest of society.
The ordinance discusses only third party conversion of a person. It ignores a person’s own right to convert to another religion, which, surely, is far more important. Even if no conviction takes place, this has the effect of evoking fear in the minds of the minority.
Third, and for me, most troublingly, it denies agency to at least half, if not more, adult members of the population. Besides minors, the ordinance specifically identifies women and members of a Scheduled Caste or Tribe as “vulnerable” individuals. Clearly, it means that a woman cannot think for herself, however educated or accomplished or experienced she might be. This attitude is chauvinistic and reeks of male supremacy. If this is not lawmaking at its paternalistic worst, I do not know what is.
And fourth, the ordinance and those who support it, effectively support divisiveness. It creates an unnecessary communal rift in a peaceful society.
So much time and resource is wasted on this rhetoric and agenda, when we should be thinking about important policy matters, such as ensuring the right to livelihood and healthcare in the times of a pandemic.
Is this a society we want to live in?