'Love Jihad' law: Tyranny by procedure

A mere reading of procedure in Section 8 and 9 of the UP law reveals that it puts significant curbs on bona fide religious conversions

Though the term ‘love jihad’ gained significance among the public in recent years, the idea was always part of right-wing conversations. In line with the right wing’s perceived threat of love jihad, the Uttar Pradesh government passed The UP Unlawful Religious Conversion Prohibition Ordinance, 2020 to prohibit mala fide religious conversions.

Against the backdrop of the discussions and deliberations surrounding the political motivation behind the “anti-love jihad law”, there is a need to look at the law through the legal lens, especially when the BJP government in Karnataka has proposed to bring one for the state soon. Even though the object of the UP Ordinance is to prevent religious conversions that are a result of misrepresentation, undue influence, coercion, fraud, allurement or by way of marriage and matter connected or incidental thereto, the procedure for lawful conversion provided in the Ordinance is unreasonable and disproportionately rigorous.

Section 2(a)(iii) defines allurement as: “allurement means and includes offer of any temptation in the form of: better lifestyle, divine displeasure or otherwise”. ‘Otherwise’ can include anything from a promise of heaven (out of genuine belief) to money or material benefit. Similarly, section 2(b) widely defines coercion to include ‘psychological pressure’. Leaving the definitions open-ended, especially in a punitive law, only paves way for arbitrariness in the enforcement of the law. In Rev Stanislaus v. State of Madhya Pradesh, the Supreme Court held that the right to convert a person to another religion is not a fundamental right under Article 25. Therefore, the scope for a constitutional challenge to the Ordinance is limited from the perspective of the right to convert. However, a reasonable contention can be made on the basis of procedural unreasonableness. Section 8 mandates not only the person who is converting to make a declaration to the authority concerned but also the religious convertor to give one month’s prior notice to the authority. Further, the District Magistrate (DM) shall order a police enquiry to determine the veracity of the declaration.

Section 9 requires another declaration to be made by the person after conversion to the DM. The DM, pending the confirmation, shall display a copy of the declaration on the notice board for the public and also record objections to such conversion, if any. The declaration contains personal information such as a permanent address, date of birth, religion, father’s/husband’s name, etc. Section 9 also requires the persons concerned to present themselves before the magistrate to establish their identity and confirm the content of the declaration. A mere reading of the procedure in Section 8 and 9 reveals that it puts significant restrictions on bona fide religious conversions by letting the state and public scrutinise the conversion in addition to a police enquiry on the geniuses and intention of such conversion.

Threat to privacy

Justice Chandrachud, in the landmark Puttaswamy decision on privacy, defined the right to privacy as the “right to be let alone”. Any restriction placed on the individual’s freedom must be reasonable, just and fair. If the intention of the Ordinance is to ensure that the conversions take place with free consent and out of free will, then the same can be achieved by virtue of procedure laid down under Section 8, rendering the procedure under Section 9, that empowers the DM to publish personal details of the person converting and details of such conversion for public scrutiny, gross encroachment upon a person’s right to privacy and peaceful practice of one’s religion without the interference of the state or society. Further, inviting objections, if any, from the public also violates the right to privacy especially when the person converting has declared before a DM that he/she is converting out of his/her own free will. The concept of privacy is grounded in the notion of autonomy, dignity and liberty of an individual. Section 8 and 9 divest an individual the right to convert his/her religion without undue interference of the State or society.

Irrespective of whether instances of “love jihad” happen or not, the procedure established by law must be proximate to the object. However, the procedure provided in the Ordinance for a lawful conversion goes beyond the object sought and seeps into procedural unreasonableness as it violates a right to privacy, right to autonomy, right to dignity and peaceful practice of one’s religious belief. The object of the Ordinance significantly differs from the object that can be construed from the procedure in Sections 8 and 9. The procedure empowers the DM with powers that result in encroachment into one’s right to privacy, dignity, liberty and right to religion. The Ordinance places the society and State at the centre of the personal and intimate decisions of individuals. The Ordinance fails to maintain the balance between the interest of the state to prevent mala fide conversion and the fundamental rights of an individual to bona fide conversion and practice one’s religion.

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

Watch latest videos by DH here: