Right to Convert for Marriage

After seven decades of independence of the country, the question arises whether love is a crime or conversion for marriage a crime. The Uttar Pradesh (UP) government, which considers it a “love jihad” to convert girls in the name of love and marry them, has recently brought in an ordinance promulgated on 27 November 2020. This ordinance has provided prohibition of unlawful conversion from one religion to another by misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage and for the matters connected therewith. Anti-conversion laws are already in force in Odisha, Madhya Pradesh, Chhattisgarh, Arunachal Pradesh, Gujarat, Himachal Pradesh, Jharkhand and Uttarakhand. The UP ordinance states that committing forcible, seductive and fraudulent conversions is a punishable offence. The ordinance is based on a report submitted by the state judicial commission headed by Justice Mittal in November 2020. The ordinance stipulates that anyone wishing to convert must report to the district magistrate two months in advance. The ordinance states that a marriage is not valid even if the girl changes her religion before or after marriage. There is no doubt that the UP legislation will overturn the Supreme Court judgment in Shafin Jahan v Asokan K M, 8 March 2018 that the right of a citizen to marry a person of their choice is under Article 21 of the Constitution. The Supreme Court held that the Constitution protects the ability of each individual to pursue a way of life or faith to which they seek to adhere. The Court further upholds that “Matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity. Society has no role to play in determining our choice of partners.” Justice Madan Lokur has strongly contended that the ordinance is violating the freedom to choose a spouse and the dignity of the individual.

There was a big debate even in the Constituent Assembly on religious propaganda in India, a land of multifarious religions. While allowing religious propaganda at the request of Christians, it was left to the discretion of the state legislature to prohibit the religious conversions, and directives were issued that religious propaganda should not violate the rules of peace and security. Odisha and Madhya Pradesh enacted laws prohibiting conversions in 1967 and 1968, while the Supreme Court upheld the same in 1977. This made it clear that governments have the right to ban them in situations where tensions in society are serious. With over 36,000 inter-religious marriages taking place across the country every year, almost six of them take place in UP alone. The report of the Special Investigation Team (SIT) in UP has highlighted the fact that there is no evidence in UP of social tensions caused by such marriages. Concerns have been raised about the need to prevent fraudulent or forced conversions. Conversion to another religion on its own is a fundamental right under Article 25, and the judiciary emphasises on several occasions that men and women who are above the age of 18 years have the fundamental right to decide whom to marry. A public interest litigation has been filed in the Supreme Court against the UP government administration for not having the right to amend the fundamental rights of citizens. In the wake of the Allahabad High Court’s protection of more than 125 caste and inter-religious marriage couples over the course of a month, the apex court needs a proper verdict on the love jihad ordinance.