Introduction – ‘Love Jihad?’
In a historic judgment, a division bench of the Allahabad High Court held that the right to choose a partner is a fundamental right and is intrinsic to the right to life and personal liberty. This is far from the first instance that a High Court has protected inter-faith couples, but what makes this case of such special interest to the media and public is the backdrop against which it comes. The decision came amidst the raging controversy over Uttar Pradesh’s Prohibition of Unlawful Conversion of Religion Ordinance, aimed at curbing the so-called ‘love jihad’.
[ To Understand the Ordinance & its validity in a lucid manner, check our Digest Note ]
This article examines this controversy by briefly touching upon the issue of ‘love jihad’ and the Uttar Pradesh Ordinance. With this background, it proceeds to analyse the ratio of landmark judgments of the Supreme Court governing the subject of religious conversions and inter-faith marriages. It also analyses the Allahabad High Court’s previous position on the subject, through the cases of Noor Jahan and Priyanshi. Finally, it gets into the crux of the matter in Salamat Ansari and discusses whether the judgment is truly a death knell to the Uttar Pradesh Ordinance. The article concludes by arguing for a more active role by the courts in protecting inter-faith couples from vigilante violence.
Contextual Background: UP’s Love Jihad Law
The term ‘love jihad’ first caught public attention in 2009, when a website called Hindu Jagruti claimed that the Muslim Youth Forum had put up a poster encouraging Muslims to ‘trap’ Hindu girls in love, with the aim of converting them for marriage. After a sustained investigation, the Kerala police concluded that it was a campaign with no substance and eventually, Justice Nambiar of the Kerala High Court closed the investigation, holding that “inter-religion marriages were common in our society and it could not be seen as a crime”.
Today, ‘love jihad’ continues to be used by Hindutva politicians to describe a Muslim conspiracy to supposedly dupe unsuspecting Hindu girls into marriage and convert them to Islam. In more fanciful versions of this conspiracy theory, it is said to be part of a grand and secret plan of eventually turning Hindus, who are 85% of the population, into a minority in India. The idea of ‘love jihad’ has been propagated by the Sangh Parivar for years, but gained massive traction only recently, when UP Chief Minister Yogi Adityanath, referring to a remark by the Allahabad High Court that conversion “solely for the purpose of marriage” was unacceptable, said that his government was working to bring a strict law to curb incidents of “love jihad”.
True to his word, the ‘Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020’ (supra) received the Governor’s assent on 28th November. While its stated objective is to prevent forced conversions, the Ordinance has been widely criticised for restricting individual autonomy and liberty. Noting that Section 6 explicitly criminalises marriages carried out solely for the purpose of religious conversion, Abhinav Chandrachud argues that the Ordinance has a chilling effect on the freedom of conscience. While highlighting its scope for misuse, Vanshaj Jain criticises the law for its ambiguity and use of open-textured phrases such as “undue influence”, “allurement” and “coercion”.
The misuse spoken of can be evidenced from the first case lodged by the state’s police in Bareilly just hours after the promulgation of the ordinance. Despite the family not approaching the police, an FIR was registered against Owais Ahmed, a Muslim man, in a case that had already been resolved in 2019. Not only does this blatantly violate the principle that criminal laws must not have retrospective effect, but it also shows a profound interest by the state in institutionalising the notion of ‘love jihad’ and actively prosecuting exogamous Muslims. The second case was registered in Muzaffarnagar, and the third in Chiraiyakot alleging kidnapping of the complainant’s 25-year-old daughter. In the fourth and most recent case, the Hindu Yuva Vahini, who is arguably not an aggrieved party, was the complainant. The case did not even involve a conversion, but merely a voluntary inter-faith marriage. These cases demonstrate a blatant misuse of the Ordinance, and a clear purpose of harassing inter-faith couples.
The most authoritative pronouncement of the Apex Court on anti-conversion laws was in the 1977 case of Rev. Stanislaus, where a constitution bench upheld the validity of the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968, and the Orissa Freedom of Religion Act, 1967. The Court differentiated between propagation, which was protected under Article 25, and proselytization, which needed to be regulated. In Lily Thomas and Sarla Mudgal, the Supreme Court slammed religious conversions by Hindu men to Islam in order to conclude bigamous marriages. In doing so, it confirmed the principle that religious conversions carried out without a bona fide belief and for the sole purpose of deriving some legal benefit do not hold water.
To understand the High Court’s decision in Salamat Ansari, we must first examine its prior judgment in Noor Jahan (supra), as well as the precedents it relied on. In Noor Jahan, the petitioners had approached the Allahabad High Court seeking protection from police harassment in connivance with the woman’s family, following an interfaith marriage. Holding that the conversion to Islam was not ‘genuine’ or ‘bona fide’, but was purely for the purpose of marriage, the Court declared the marriage to be void and consequently denied the petitioners any remedy. It was this judgment that was subsequently followed in Priyanshi (supra), the case cited by Chief Minister Adityanath to justify the ‘love jihad’ ordinance.
It must be noted that the Court in Noor Jahan was simply tasked with determining whether or not to award police protection to the couple. It did not have to venture into determining the validity of the conversion and the subsequent marriage. As was done in Salamat Ansari, the Court should have taken into account the increasing jurisprudence on individual autonomy and liberty to choose one’s partner. In the Hadiya Marriage Case, the Supreme Court reiterated the importance of liberty of a major to determine his/her place of residence and companionship. In Lata Singh, it held that if the parents disapprove of the inter-religious marriage, they can cut-off social relations with the son or the daughter, but cannot give threats, instigate acts of violence or harass the person who undergoes such marriage. In KS Puttaswamy, the preservation of personal intimacies, the sanctity of family life, marriage, and procreation were all held to be essential facets of the right to privacy.
Salamat Ansari v. State of Uttar Pradesh
The matter arose out of a writ petition filed by Salamat Ansari and Priyanka Kharwar (alias, Alia), seeking a writ of mandamus and quashing of an FIR under Sections 363, 366, 352, 506 of the IPC and Sections 7/8 of the POCSO Act on the premise that the couple is of the age of maturity, competent to contract a marriage, performed Nikah as per Muslim rituals, and that Priyanka renounced her Hindu identity and embraced Islam. It was further submitted that the couple has been peacefully and happily living together as husband and wife for a year. Lastly, the petitioners submitted that the FIR lodged by Priyanka’s father was out of malice and mischief for the sole purpose of bringing an end to her marital ties. The government advocate opposed these submissions saying that conversion for the purpose of marriage is prohibited and that since the marriage has no sanctity in law, the Court should not exercise its extra-ordinary jurisdiction.
In answering these contentions, the Court first ruled out the possibility of charges under Sections 363 and 366 of the IPC and Sections 7/8 of POCSO, stating that Priyanka was a major and not a juvenile. Addressing the charges under Sections 352 and 506 of the IPC, the Court noted that the charges prima facie appeared to be “exaggerated and malafidely motivated”. In what is perhaps the most quoted paragraph of the judgment, the Court went on to rule:
“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… Decision of an individual who is of the age of majority, to live with an individual of his/her choice is strictly a right of an individual and when this right is infringed it would constitute breach of his/her fundamental right to life and personal liberty as it includes right to freedom of choice, to choose a partner and right to live with dignity as enshrined in Article 21 of the Constitution of India.”
The Court then proceeded to discuss the decision in Noor Jahan. It observed that disregarding the choice of a person is not only “antithetic to the freedom of choice of a grown-up individual” but is also a “threat to the concept of unity in diversity”. It added that “irrespective of the conversion being under clout, the mere fact that the couple was living together, the alleged relationship can very well be classified as a relationship in the nature of marriage distinct from the relationship arising out of marriage”. The judgment in Priyanshi followed Noor Jahan, and neither of them 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. For these reasons, the Court held “the judgments in Noor Jahan and Priyanshi as not laying good law”.
This decision has been assiduously lauded with wide-ranging fanfare, and several media houses have termed it a stumbling block for UP’s ‘love jihad’ legislation as can be seen here, here, here and here. Such reporting could lead to the mistaken belief that a constitutional death-knell has been firmly struck against the anti-conversion law. However, the Allahabad High Court never really addressed the issue of conversions purely for the sake of marriage. In Salamat Ansari, the Court only partially departed from the approach in Noor Jahan and Priyanshi, by holding that the validity of a marriage must not be a factor in deciding whether to award police protection. Instead, the Court must only consider whether the two individuals are adults, and whether their cohabitation is with free consent. If so, such cohabitation must be protected by law. However, the Court did not disagree with the prior cases on the point that religious conversions conducted solely for the purpose of marriage are legally suspect. Rather, it explicitly acknowledged that the ensuing union might only be “a relationship in the nature of marriage” and not a true marriage. This distinction is extremely relevant when discussing the anti-conversion legislation.
[ You can also refer to our Digest Note on Allahabad High Court’s Judgment in Salamat Ansari (supra) ]
The judgment in Salamat Ansari comes as a beacon of hope amidst an increasingly threatening environment for inter-religious couples in Uttar Pradesh. Given the threat such couples face from disgruntled family members, the Courts must take a proactive role in going beyond mere recognition of this right, towards police protection to ensure their physical safety from vigilante violence. The social fabric of our nation has yet to come to terms with interfaith marriage, as highlighted by the recent Tanishq ad incident. Rather than being a passive observer in this assault on religious autonomy and personal liberty, the law must act as an instrument to drive social change. While the decision of the Allahabad High Court in Salamat Ansari is a welcome change from its earlier position, a celebration would indeed be premature. Despite the judgment, the UP Ordinance has been misused in each of the four cases listed above. It is presently under challenge before the Supreme Court, and its outcome shall undoubtedly impact India’s commitment towards fraternity and its unity in diversity.
About the Author: Eeshan [2019-24] is pursuing B.A. L.L.B. (Hons.) from NALSAR University of Law, Hyderabad, and has a keen interest in Criminal Law and Constitutional Law.