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Interfaith Marriages Regulation and Personal Liberty

Written by Hasan Khurshid

There is a famous phrase, “Never marry the one you can live with, marry the one you cannot live without.”

Interfaith nuptial relationships have become hot-button issue in several States of India, beginning from Uttar Pradesh where Chief Minister Yogi Adityanath during election rallies campaigning for BJP candidates in Assembly by-polls, on October 31, 2020, in Jaunpur and Deoria announced that his government is planning to introduce a law to regulate interfaith marriages involving Muslim men and Hindu women.

“The government has decided to prevent ‘love jihad’ with all its might. (‘Love Jihad’ is a term used by Hindu activists to describe relationships between Hindu women and Muslim men). I want to warn all such people that if they don’t mend their ways, they would have to set out on a ‘Ram naam satya hai’ journey”, said Adityanath.

Reacting to Adityanath’s threating announcement, Samajwadi Party’s State Spokesperson Rajendra Chaudhary said, “Is this the first time Yogi used this type of language? It’s been over three years ago, when he had said ‘Thok Do’ (do encounter killing), and now this.”

In his speech, Adityanath cited an Allahabad High Court order passed on October 30, 2020, where a single judge bench of Justice Mahesh Chandra Tripathi held that religious conversion solely for the purpose of marriage is not valid under the law. The case pertained to a Muslim woman who converted to Hinduism to marry a Hindu man, and the couple approached the court for police protection. To be sure, the High Court order didn’t use the term of ‘love jihad’ in its order.

However,  on November 11, 2020, a division bench of Allahabad High Court consisting Justices Vivek Agarwal and Pankaj Naqvi held that two previous orders by single judges of this court, which had said that conversion purely for the sake of marriage was illegal, were not good law. “Right to live with a person of his/her choice irrespective of religion professed by them, is intrinsic to the right to life and personal liberty”. The bench added that “Interference in a personal relationship would constitute a serios encroachment into the right to freedom of choice of the two individuals. We fail to understand that if the law permits two persons even of the same sex to live together peacefully then neither any individual, nor a family, nor even a State can have objection to relationship of two major individuals who out of their free will are living together.”

A day after Adityanath announced his government’s resolve to bring a law against ‘love jihad’, Haryana Chief Minister Manohar Lal Khattar has spoken of bringing a law against ‘love jihad’. As such, yogi has approved on November 24, 2020. a draft ordinance outlawing religious conversions by marriage.

The Madhya Pradesh government has also announced to bring out the Dharma Swatantra Bill, 2020, with strict provisions for individuals going for interfaith marriage. The proposed law is likely to replace the Madhya Pradesh Freedom of Religion Act of 1968. The offence would be non- bailable prescribing five years rigorous imprisonment.

On November 20, 2020, BJP national general secretary C.T. Ravi has also announced to bring out such law in Karnataka. The UP government’s home department has now sent a proposal to State’s law ministry for making a stringent law to deal with love jihad.

Reacting to such moves by BJP -ruled States, Rajasthan Chief Minister Ashok Gehlot on November 21, 2020, unleashed a series of tweets to express his thoughts on the matter and said, “Love jihad is a term manufactured by BJP to divide the Nation and disturb communal harmony. Marriage is a matter of personal liberty, bringing a law to curb it is completely unconstitutional and it will not stand in any court of law. Jihad has no place in love.”

In the second tweet, Gehlot said, “They are creating an environment in the Nation where consenting adults would be at the mercy of State power…” In his third tweet, Gehlot said,
“It seems to be a ploy to disrupt communal harmony, fuel social conflict and disregard Constitutional provisions like the State not discriminating against citizens on any ground.”

Advocate Jamal Usmani supporting the views of Ashok Gehlot said that the Nazi Germany government had prescribed certain laws prohibiting Jews from marrying or having intimate relations with German people. The aim behind such laws was to alienate the Jews from German society. We are witnessing the same repeat here in India. This is surprising as in February, 2020, while responding to the question of ‘love jihad’ the central government informed the Parliament that the term of ‘love jihad’ had not been defined under any law and no case has been reported or registered by any central agency. This clearly indicates that no such law is needed. As such, already there are provisions in law to prevent and prosecute such happenings. Section 366 of the India Penal Code criminalises any act of kidnapping, abducting or inducing a woman to marry by force. This act is punishable with imprisonment for up to 10 years. 

Usmani further said that for certain activists, besides this terminology, there are other  fabricated jihads such as “Bindas Bol-UPSC Jihad” telecast by Sudarshan News, which besides being in bad taste are offensive and likely to fan communal issues.

He clarified that Article 21 guarantees the  Protection of Life And Personal Liberty. The scope of Article 21 was widened by Apex Court in A.K.Gopalan vs State of Madras that the contents and subject matter of Article 21 and 19 (1) (d) are not identical and they proceed on total principles. After the Gopalan case the scenario in respect of scope of Article 21 has further been expanded through different decisions of the Apex Court. In the case of Maneka Gandhi v. Union of India , the Apex Court opened up a new dimension and laid down that the procedure cannot be arbitrary, unfair or unreasonable. In the case of S.S. Ahuwalia v. Union of India and others it was held that it is the duty of the State to create a climate where members of the society belonging to different faiths, castes and creeds live together and, therefore, the State has a duty to protect their life, liberty, dignity and worth of an individual which should not be jeopardized or endangered

Noted lawyer Khursheed Zaidi feels that to understand the move behind ‘love jihad’ you need to understand the ancient religious history of India.  Geeta is one of the oldest book of the world.  When Islam entered India through Sufi-saints, it was not new for Indians as it was the modernised form of Geeta. Thus a big chunk of Geeta followers adopted Islam. 

In 1761, Marathas were defeated badly at the terrain of Panipat, in which 35000 Marathas were slain by Ahmad Shah Durrani’s commander Najib-ud-Daula. This created a great hatred towards Muslims among the Marathas. 

The organisation Rashtriya Swayamsewak Sangh (RSS) is  Marathas’ organisation which put the Indian Constitution on anvil. On 25th December 1992 , after demolition of Babri mosque, a press conference was held in New Delhi, in which Swami Vani Dev Maharaj gave a call to the Nation to reject the anti-Hindu Constitution.  “We have no faith in the country’s laws and Sadhus are above the laws of land”, they said.

Zaidi further said, “Golwalkar’s bunch of thoughts have been used by BJP as a political weapon with dangerous consequences. The BJP government is toeing upon the footsteps of Hitler’s Germany, where Jews were considered as the worst lot of God’s creature. Thus BJP government’s agenda for future will be the fascist nationalism. As such, these strange things are happening.” 

“In India marriage is strictly religious sacrosanct under the dominancy of religion.  Yogi Adityanath keenly observed this factor.  He is of the view that marriage should not go out of religion, so that it may not dismantle and tear apart the social fabric. Thus it should be stopped.  He is the ardent follower and implementor of BJP philosophy. BJP is the party which want to  put the society on the norms and etiquettes propounded by Manu smriti, taking marriage as purely religious ceremonial following strict rules of religion. As a matter of fact, it is not Hinduism only which is against the inter-faith marriages. Judaism disapproved exogamy.  Zoroastrianism, Christianity, and to some extent Islam disapproved it.

Adityanath’s outlook  may be correct from the religious point of view for  not permitting the interracial and inter-faith marriages but the phenomenon of restraining and threatening young couples with death for opting interfaith marriage  is against the law of land.” 

Renowned Advocate Yawer Qazalbash, having to his credit 60 years of law practice, said, “Lately it has become a trend to combine two oxymoronic stroppy words and coin an expression with the object to intimidate a section of the society. For instance, “urban Naxalites” or “love jihad”. Perhaps an expert psychoanalyst would be required to find out whether such trending is the culmination of some complexes or for the fun.”

Qazalbash further said, “Learned UP CM recently threatened death penalty for interfaith marriages and asserted to legislate a law against ‘love jihad’. Soon Haryana CM followed suit. UP has already constituted SIT to investigate around 14 cases of ‘love jihad’. UP Law Commission has warned that a law on ‘love jihad’ may be challenged. It would be only clear when the promised law on ‘love jihad’ enacted or even drafted and how the expression ‘love jihad’ has been defined, as to whether it would only be against marriages between a Muslim boy and a Hindu girl; or, it would cover a Hindu man and a Muslim woman, a Hindu, Muslim, Sikh, or a Christian man and a Buddhist woman.”

Qazalbash clarified that The Special Marriage Act 1954 covers interfaith marriages. The Supreme Court of India has held that inter-caste or even inter-religious marriages should be encouraged to bring in the empathy among general masses. Thus, ushering a divisive political plan apart, it would be difficult to enact a contrary law.   

 Jasbir Wasu, a security expert, who is also the vice president of Central Association of Private Security Industry (CAPSI) said, “ Personal liberty is under siege. Reactive or radical utterances from leaders of stature are most unbecoming and unwanted in secular India. It occurs to me that the Parsi community did have such restrictive conditions but their taboos and rigidity too has mellowed down.”

Jasbir Wasu further said, “Every religion that I am conversant with professes doctrines of love and peace. Political opportunism ought to be criminalised. In an era of global liberalism the benchmarks being set by myopic political leaders are most unfortunate and racist. Citizens’ vocalism must reach a crescendo that compels moderation and acceptance for heralding national harmony.”

Wasu lamented that across ages history bears witness that religious aggression has brought out the demonically worst animal behaviour and wreaked havoc. Religion is for the masses and the masses tread most questionable paths. Why limit the ideal to Indian society. Across decades, Indians who have gone overseas and found life partners of inter faith and nationality have written success sagas. In an era of same sex marriages, third gender mainstreaming, surrogate mothers and donor sperm banks, the religious divisiveness is as foolish as most politicians are.

Talking to Lawyers Update, Vasudeva Rao, IPS (Retd.), former Special Commissioner of Delhi Police said, “The term ‘love jihad’ is a blinkered view of law and social processes. Even if some misguided elements try to project this term as a point to score over others, it is to be seen in the context of major persons having a right to decide their future. It is insulting of an adult to say he or she is of a weak mind and requires State’s direction to choose the life partner. In case of any intimidation, law can take its course. We need to see marriage and social issues  in the larger context of a dynamics of a vibrant and democratic society where people from divergent backgrounds keep interacting with each other. There are sufficient checks and balances in the form of traditions and influence of elders of each  community. I do not think the situation in India, as compared to rigid societies like Pakistan, is better and more satisfactory. Political parties with a narrow perspective and sometimes, others too, play on vulnerabilities of communities for partisan electoral gain. But they are not lasting.

Professor Barkha Trehan Kochhar says, “Yogi’s concern over interfaith marriages, may  be genuine; howsoever has the potential to provoke some segments given his and his party’s ideological preferences. To me, enacting a law to regulate interfaith marital preferences surely goes on to tamper with the secular thread of our country. Like many other things, a State cannot and should not regulate personal choices of its citizens. Article 19 (2) also states the specific circumstances in which reasonable restrictions on the personal liberty can be imposed; but Yogi’s concern, fits into none of the stated grounds.”

Prof. Barkha Trehan Kochhar further said, “Anyone who uses the term ‘love jihad’ clearly seems to mean a gullible Hindu woman falling prey to a Muslim man. The truth behind this insidious term, as I understand, is drawing a Lakshman Rekha between Hindu women and Muslim men, none in a position to cross over it in the name of marriage. People from times immemorial have been mobilized on this one ground of religion alone, the benefits of which have been garnered by our political heads all through. As sensitive as this issue is, as encashing it is for all those who take advantage by misusing it.” 

Trehan strongly stated, “I am absolutely in favour of cross between people irrespective of their caste, class, religion and region, not only because it promotes National unison; it is also good for biological reasons. Many studies point out at the brilliance of children born out of these wedlock picking up the best of both. Above anything, we must not forget that we are humans first and therefore, there should be no barrier in choosing who do we wish to spend our life with.”

Giving the treasure of vital information to Lawyers Update, noted Senior Advocate Mahalakshmi Pavani, President of Supreme Court Women  Lawyers Association said, “It is appalling and disheartening to see a chief minister, who has taken a solemn oath to uphold and protect the Constitution of India come out in public and engage in such a divisive discourse. It is this very Constitution of India that guarantees fundamental rights to all citizens, including the right to life and personal liberty and the freedom to practice religion. Indeed, it is a cause of concern when the chief minister of the most populous state of the country ‘cautions’ men of the Muslim community for engaging in marital unions with Hindu women. To witness the chief minister display a blatant disregard for the fundamental rights of citizens is not surprising, given that there is no fear for facing any legal or penal consequences whatsoever.”

Mahalakshmi Pavani further said, “It is not open for the State to venture into the private lives of individuals, especially in the domain of marriage, with an exception to matters laid down by law established. In fact, Chandrachud, J in Shafin Jahan v. Asokan K.M. had inter alia held that the right to marry a person of one’s choice is integral to Article 21 of the Constitution and that society has no role to play in determining our choice of partners. Furthermore, the judgment rendered by a nine-Judges Bench of the Supreme Court in  K.S. Puttuswamy v. Union of India  held  inter alia that the autonomy of the individual is the ability to make decisions concerning one’s life and that family, marriage, procreation and sexual orientation are all integral to the dignity of the individual.  This was the very same judgment that recognized the Right to Privacy as an integral part of Right to Life guaranteed under Article 21 of the Constitution. On the issue of legislation proposed to regulate inter-faith marriages involving Muslim men and Hindu women, it is highly unlikely the same would pass the test of constitutionality.”

According to Pavani, “The legislation mooted by the Government of Uttar Pradesh would breach the right to equality that is propounded under Article 14 of the Constitution. The State is mandated to prohibit discrimination on the basis of religion, race, caste, sex or place of birth under Article 15 of the Constitution. This is a case where we potentially see a proposed legislation that seeks to impose penal sanctions against a Muslim man for merely marrying Hindu woman. Article 19(1) (a) of the Constitution provides for freedom of speech and expression that is subject to certain reasonable restrictions. It would indeed be a dark day if such a law passed by the State is construed to be a reasonable restriction on inter-faith marriages for the purposes of upholding decency or morality for merely expressing love for a person who professes a different religious faith. Furthermore, the right to choose a partner of his or her choice is ultimately left to an individual and is a matter of such an individual’s personal liberty that is protected under Article 21 of the Constitution. Any interference by the State would definitely amount to a violation of a person’s right to privacy. Also, one must remember that Article 25 of the Constitution guarantees that citizens are entitled to freely practice, profess and propagate religion, subject to public order, morality, health and the other fundamental rights that are guaranteed under Part III. Hence, such a law would definitely violate the tenets of the basic structure doctrine of our Constitution.”

Pavani feels, “The concept of ‘love jihad’ appears to be fuelled by fringe elements in order to create an atmosphere of religious animosity amongst people. Sadly, the first thought that comes to the minds of people is that of a Muslim man courting a woman from another religion and then forcibly converting her to Islam, which is followed by marriage and procreation. It is seen by fringe elements as a practice that seeks to increase the population of Muslims in India – a move that would jeopardize the majority Hindus. Naturally, it is no surprise that such fringe elements enjoy political patronage, which aid in propagating fear to the people at large. One must note that this so-called phenomenon of ‘love-jihad’ is not restricted to North India. In fact, states like Karnataka and Kerala have also witnessed incidents wherein consenting adults belonging to different religions have been targeted wherein the Muslim man is accused of indulging in ‘love jihad’. It is relevant to note that the one thing people conveniently forget is the choice of the individuals who have consented to such a relationship and whose families also do not have any objection to the same. We cannot live in a society that governs what goes around the private lives of the individuals as that would be a classic case of the State and society infringing upon the personal liberties of the citizen.”

According to Pavani, “Religion, devotion and spirituality is something that is practiced by a majority of the Indian population today, across different sections of society and across religions. It is indeed sad that politics has captured the pulse of this devotion and spirituality that is exercised by the masses of our Nation. A polarized environment that enjoys political sanction has instilled a sense of fear amongst people, imposing them to believe that their religion is under threat. Naturally, when the electorate is highly polarized, members of a particular religion across caste lines will consolidate to back a particular political party that shall only keep the interests of the majority in mind and may consider relegating members belonging to other religions to the status of second class citizens. The moment a doubt or aspersion is cast on the minds of the people especially in matters appealing to the religious sentiments of the people, it has the potential to influence an outcome in a massive manner. Religious hate propagated in the form of ‘love jihad’ or even ‘gau rakshaks’ typically witness members of the minority community fall victim to the excesses and blatant violation of law by members of the majority. Whilst the same may reap dividends for the political masters, it is ultimately the average citizen who stands to suffer the wrath of religion mixed with politics.”

When asked about the prospects of National unity in the result of interfaith marriages, the learned lawyer viewing through the casements of history  said, “This question reminds me of a small anecdote in ‘Roses in December’ – the autobiography of M.C. Chagla, one of India’s foremost jurists and diplomats. It narrates a brief incident involving Mohammed Ali Jinnah and Sir Dinshaw Petit. Jinnah was extremely enamoured by the beauty and intellect of Petit’s daughter Rattanbai (Ruttie), who was younger than him by over twenty years and belonged to the Parsi community. One day, Jinnah sought Petit’s views on inter-faith marriages. Remember, this was pre-Independence, and this was an extremely controversial topic. Sir Petit unsuspectingly told Jinnah that he fully supported inter-faith marriages and that such marital unions would strengthen the resolve of a united India in the freedom struggle against the British. At this moment, Jinnah immediately asked Sir Petit for his daughter’s hand in marriage. An enraged Sir Petit did not realise what just struck him and dismissed Jinnah. However, Jinnah’s clandestine courtship with Ruttie continued and after two years, their marriage was solemnized. Ruttie converted to Islam, was disowned by her family and was ostracized by the Parsi community.”

Pavani cautioned, “We must never forget that marriage is completely within the private domain of two consenting adults, irrespective of which caste, class, religion or region they hail from. Indeed, inter-faith marriages and nuptial relationships that transgress the boundaries of class, caste, religion and region aid in promoting empathy, understanding and national unity. However, such unions must be a culmination of a consenting relationship which involves the independent choice of each party that bears mutual love, affection and understanding for the other. A relationship caused by fear or forceful conversions shall not only defeat the spirit and purpose of unity and understanding but would also invite the wrath of the divisive sections of society who keenly wait for an opportunity to shred the secular fabric of our Nation.”

Noted Supreme Court lawyer Prashant Bhushan concluded that the aim behind the Yogi’s proposed law in the name of ‘love jihad’ is based on BJP’s agenda to terrorise and victimise the Muslim community at large. Yogi is against Hindu woman getting married with a Muslim man and has termed it as ‘love jihad’; whereas, he is not against a Muslim woman getting married to a Hindu man, which is totally discriminatory violative of Article 14 of the Constitution.

Prashant Bhushan further said that mere names do not signify the faith as there may be quite many people, keeping names of a particular religion but may not be practising that religion being atheist, so what is the logic behind such a move.

Prashant Bhushan pointed out that legally in India incestuous marriage is illegal but for inter-caste, inter-faith marriage, there is absolutely no legal binding. Moreso, the phenomenon of bringing any such law in a secular democracy will not only be out of question but also unconstitutional impingning upon the fundamental rights of the people of India guaranteed under Articles 14, 15, 19 and 21 of the Constitution of India. Nobody has got the right to snatch an individual’s personal liberty through public policy dictating him/her whom to marry and whom not to marry.”

When asked, what will happen if Adityanath brings the proposed law,  Bhushan responded,  “It will be struck down by Supreme Court of India”, being unlawful restriction of a citizen’s personal liberty besides being discriminatory, arbitrary and fanciful.  

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Hasan Khurshid

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