Questions raised upon Constitutional validity of love jihad law
– SLC INTERN
In a shocking move, the Allahabad High Court ordered the petitioners to either withdraw their petition or it might dismiss the case. The case filed was regarding the controversial prohibition of unlawful conversion of religion ordinance, 2020 promulgated by the state of Uttar Pradesh.
The court ordered the withdrawal of the suit on the grounds that it was no longer an ordinance but had become an act. The petitioners argued that they had comprehensive arguments and that only the word ‘ordinance’ has to be changed to ‘act’. However, the court did not agree to this and the petitioners were asked to withdraw.
The law is prima facie unconstitutional and deserves to be struck down immediately. Section 5 of the act punishes conversion of religion by marriage and this goes against an individual’s right to freedom of religion which is a constitutionally guaranteed fundamental right. The act is a divisive tool used by politicians to ensure that every conversion by marriage is scrutinized as well as certified by the state. This violates Article 21 of the constitution which guarantees the right to life and personal liberty and the right to marry a person of one’s choice comes under it.
The Supreme Court in Shafin Jahan vs. Asokan K.M has held that “absolute right of an individual to choose a life partner is not in the least affected by matters of faith. Choices of faith and belief as indeed choices in matters of marriage lie within an area where individual autonomy is supreme.” Thus, the prohibition of unlawful conversion of religion Act, 2021 is in contravention of this judgment.
Furthermore, the stringent punishments under the law are arbitrary and sexist in nature. Section 3 of the act prohibits conversion by marriage. It also applies if one convinces or conspires to such a conversion. A person who acts in contravention with Section 3 will be penalized with imprisonment of not less than one year, which can also be extended to 5 years under Section 5 of the Act. However, if a woman is the one who has converted after marriage, the fine and imprisonment term is doubled. This puts women in a more disadvantaged position as compared to their male counterparts. A woman’s autonomy cannot be suppressed and denied under the garb of protection.
The state of Uttar Pradesh argues that the act does not just aim to nullify conversion by interfaith marriages but all types of forceful conversion. They claim the law will help prevent fraudulent conversions and protect women.
However, the state enacted the law to appease the predominantly patriarchal Hindu society that fears that innocent Hindu women are seduced and coerced into marriage and conversion by Muslim men. Such inter-religious marriages have been termed ‘love jihad’ hence the prohibition of unlawful conversion of religion Act 2020 has also been referred to as the “Love Jihad Law”
Adult women should not be infantilized and forced to live in their parental home and be subjected to the control of the community at large. They should be given the freedom to choose their partners irrespective of religion without any fear of being penalized.
The Supreme Court has previously denied to hear the matter and directed the High courts to preside over it. It is now up to the High courts to deliver justice and provide respite to interfaith couples who are looking to get married and convert religions in line with their fundamental rights. The law is manifestly arbitrary and infringes on the personal liberty and an individual’s right to freedom to follow a religion of one’s choice.
Several arrests and detentions have been made under the act of consenting inter – faith couples and this need to stop as soon as possible and it will only be possible if the judiciary strikes down the law as unconstitutional. The High court has offered protection in the past to many women who were being forced to live with their parents by the provisions of this law.