The U.P. ordinance not only violates guaranteed fundamental rights but is also in conflict with existing personal laws

In November 2020, even as the COVID-19 case tally in the State of Uttar Pradesh went past the half-a-million mark in total, its government promulgated an ordinance to combat the perceived threat of “love jihad”, a pejorative term used by the religious conservatives to describe inter-faith relationships and marriages. The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020 must be criticised for setting up multiple barriers to inter-faith marriages and providing expansive powers to District Magistrates under the guise of prohibiting “unlawful conversions”.

But the real and lasting impact of the ordinance must be measured in terms of the communal disharmony it sows and outright denial of agency to young women and men. It is trite that the law, in its present form, is regressive, ultra vires and must be consigned to the bin of legislative history.

Upholding a right

The government of Uttar Pradesh drew strength from a judgment delivered recently in the Allahabad High Court by Justice Mahesh Chandra Tripathi in Priyanshi @ Km. Shamren and Others v. State of U.P. and Another 2020. Here, while refusing a prayer for police protection by a woman who had converted from Islam to Hinduism, the High Court observed that conversion “just for the purpose of marriage is unacceptable”.

Fortunately, the effect of this observation was short lived, as another numerically superior two-judge Bench of the same High Court declared this to be bad law.

Setting down the correct position in the case of Salamat Ansari And 3 Others vs State Of U.P. And 3 Others 2020, the Allahabad High Court held that “neither any individual nor a family nor even the state can have an objection to the relationship of two major individuals who out of their own free will are living together”.

In doing so, the High Court has upheld the right of a person to live with a person of his/her choice irrespective of religion professed by them as something which is intrinsic to the right to life and personal liberty, guaranteed to every person under Article 21.

Aiding social change

Historically, intermarriages — be it inter-caste or inter-faith — have been advocated as an effective tool to break social barriers and repair societal divisions. Babasaheb Ambedkar and Periyar E.V. Ramasamy placed a premium on intermarriage as much as they did on inter-dining. In Annihilation of Caste, B.R. Ambedkar argues that inter-dining had not been successful in killing the spirit of caste and that the “real remedy is intermarriage”.

Similarly, in his book, Women Enslaved  (translated by G. Aloysius), Periyar traverses further to say that “no third person has any right to constrain or decide” the coming together of two people. Periyar sought to provide and protect the agency of women in making life choices as a pathway to achieve a liberal society.

The Self Respect Conference held in Chengalpet, Tamil Nadu, in 1929 passed resolutions allowing women to file for divorce and to remarry. Periyar recast marriage as “life partnership agreements” wherein the two partners would come together on equal terms, and conducted thousands of self-respect marriages. In 1967, the Government of Tamil Nadu amended the marriage laws to allow self respect marriages within the Hindu Marriage Act.

The most reliable statistical data shows that less than 5% of Indians have intercaste marriages and less than 3% have interfaith marriages. In spite of being a rare phenomenon in society, interfaith relationships have attracted a disproportionate amount of attention of the right-wing political class. Lawmakers in the Bharatiya Janata Party have actively spearheaded communal campaigns and stoked fear on this issue across the country. The bogey of “love jihad” plays right into hands of those with communal and patriarchal mindsets. It is no less crime to stop an inter-faith marriage than it is to abet an “honour killing”.

The Kerala instance

In 2017, the High Court of Kerala had cautioned against the use of the term “love jihad” to refer to interfaith marriages. In the controversial ‘Hadiya case’ (Shafin Jahan v. Asokan K.M., 2018), the Supreme Court of India was called to assess the allegation that Hadiya (born Akhila) was deceived into marrying a Shafin, a Muslim man.

In this case, the Court held that “The strength of the Constitution lies in the guarantee which it affords that each individual will have a protected entitlement in determining a choice of partner to share intimacies within or outside marriage” and laid emphasis on the point that the “right to marry a person of one’s choice” is integral to Article 21. It would seem that these observations and diktats have not persuaded the government of Uttar Pradesh to see constitutional sense while promulgating the said ordinance.

Various sections of the ordinance are in outright violation of the Constitution of India. For instance, Section 12 of the ordinance flips the burden of proof onto the person who has converted or caused conversion of religion to establish and prove that there was no force, fraud, misrepresentation, undue influence, coercion or allurement involved. Any conversion for the purpose of marriage can be declared void under Section 6 of the ordinance. Under Section 3 of the ordinance, the scope of which the aggrieved person may lodge a complaint against any conversion of religion is expansive to include parents, brother, sister, or any other person who is related to him by blood, marriage or adoption. Read cumulatively, this ordinance invades privacy, deepens communal divides, advances patriarchy and eliminates agency.

As such, the ordinance is a manifestation of an exclusionary and regressive agenda, which presents a new low in governance for the government of Uttar Pradesh and therefore, must be allowed to be part of the modern political discourse. Not only does the ordinance violate fundamental rights guaranteed by the Constitution, but it is also in conflict with existing personal laws. While playing to the ‘Hindu Rashtra’ gallery, the government of Uttar Pradesh has abandoned all semblance of secularism and constitutionalism.

Manuraj Shunmugasundaram is an advocate and spokesperson of the Dravida Munnetra Kazhagam

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