Love Jihad Law: tyranny by procedure

Although the term “love jihad” has gained prominence in the public eye in recent years, the idea has always been part of right-wing conversations. In line with the perceived threat from the right of amorous jihad, the government of Uttar Pradesh has passed the UP’s Illegal Religious Conversions Ban Order, 2020 to ban bad faith religious conversions.

In the context of the discussions and deliberations surrounding the political motivation behind the “anti-jihad law of love,” there is a need to examine the law through the legal lens, especially when the BJP government of Karnataka has proposed to ‘adopt one for the state soon. Although the purpose of the UP Ordinance is to prevent religious conversions resulting from misrepresentation, undue influence, coercion, fraud, enticement or by way of marriage and any related matter or ancillary to it, the legal conversion procedure provided for in the Ordinance is unreasonable and disproportionately severe.

Section 2 (a) (iii) defines attraction as: “Attraction means and includes the offering of all temptation in the form of: a better lifestyle, divine discontent or otherwise”. “Otherwise” can include anything from the promise of paradise (by genuine belief) to money or material benefit. Likewise, section 2 (b) broadly defines coercion to include “psychological pressure”. Leaving the definitions open, especially in a punitive law, only opens the door to arbitrariness in the application of the law. In Rev Stanislaus v. State of Madhya Pradesh Supreme Court ruled that the right to convert a person to another religion is not a fundamental right under section 25. Therefore, the scope of a constitutional challenge to the ordinance is limited from the point of view of the right to convert. However, a reasonable claim can be made on the basis of the unreasonableness of the proceedings. Article 8 mandates not only the person who converts to make a declaration to the relevant authority, but also the convert to religion to give the authority one month’s notice. In addition, the District Magistrate (DM) will order a police investigation to determine the veracity of the statement.

Article 9 requires that another declaration be made by the person after the conversion to MD. The DM, pending confirmation, posts a copy of the statement on the public notice board and also records objections to such conversion, if any. The statement contains personal information such as permanent address, date of birth, religion, name of father / husband, etc. Article 9 also requires the persons concerned to appear before the magistrate to establish their identity and confirm the content of the declaration. A simple reading of the Sections 8 and 9 procedure reveals that it places significant restrictions on bona fide religious conversions by letting the state and the public control the conversion in addition to a police investigation into the geniuses and intent. of such a conversion.

Threat to privacy

Justice Chandrachud, in the landmark Puttaswamy privacy decision, defined the right to privacy as the “right to be left alone”. Any restriction imposed on the liberty of the individual must be reasonable, just and equitable. If the intention of the order is to ensure that conversions take place with free consent and voluntarily, the same can be obtained under the procedure provided for in Article 8, making the procedure provided for in article 9, which empowers the DM to publish the personal details of the person who is converting and the details of this conversion for public examination, serious infringement on a person’s right to privacy and to the peaceful practice of his religion without interference state or society. In addition, inviting the public to raise objections, if any, also violates the right to privacy, especially when the converting person has declared in front of a DM that they are converting of their own free will. The concept of privacy is based on the notion of autonomy, dignity and freedom of an individual. Articles 8 and 9 deny an individual the right to convert his religion without undue interference from the state or society.

Whether or not cases of “love jihad” occur, the procedure established by law must be close to the object. However, the procedure provided for by the Ordinance for a legal conversion goes beyond the object sought and infiltrates procedural unreasonability because it violates the right to privacy, the right to autonomy, the right to the dignity and peaceful practice of one’s religious conviction. The object of the ordinance differs considerably from the object which can be interpreted from the procedure of Articles 8 and 9. The procedure confers on the DM powers which result in an infringement of the right to privacy, dignity, freedom and the right of religion. The Ordinance places society and the State at the center of the personal and intimate decisions of individuals. The Ordinance fails to strike a balance between the state’s interest in preventing bad faith conversion and the fundamental rights of an individual to convert in good faith and practice their religion.

(Manoj is a lawyer; Erinjingat is a student at Ramaiah College of Law, Bengaluru)

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