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Why the UP ordinance on 'love jihad' doesn't deserve legal scrutiny

To analyse this law constitutionally is an insult to the vision of our Constitution makers, who imagined a pluralistic society

Activists of Vishva Hindu Mahasangh stage a protest against love jihad and religious conversion at Jantar Mantar in New Delhi on 8 November 2020. (PTI)

The latest ordinance that the Uttar Pradesh (UP) government has enacted ostensibly to prevent “forced conversion by marriage” is singularly aimed to outlaw every wedlock between a Hindu and a Muslim and ensure that unless a Muslim converts to Hinduism, the marriage isn’t legally allowed. This ordinance isn’t merely illegal, it violates the very foundation of the Constitution. In fact, its introduction as a legislation provides strong evidence that while the Constitution may stay, its core values and principles are being dismantled and replaced. We have crossed the threshold of legislative decency and propriety with the promulgation of such an ordinance.

From a legal perspective, the provisions of this ordinance have been analysed on the touchstone of the Indian Constitution, and many of these commentaries hold it to be patently illegal. As a lawyer, I too have been trained to read provisions of statutes (black letter law), analyse them in the light of legal precedents and make an argument. Law seeps through the veins of lawyers. It is what we do in our everyday lives. But after I read the UP ordinance, it was clear that this law was like no other. I am all for thrashing out provisions of newly promulgated statutes, but this law does not deserve such a debate.

Although the ordinance itself does not use the word "love jihad", the UP chief minister has gone on record to state that this law has been brought to "regulate love jihad". It is yet another tool in the hands of Hindutva forces to pillory and target Indian Muslim. The Hindutva forces are against such wedlock irrespective of whether or not there is a conversion involved. The concept of purity of race that undergirds the ideology of the Rashtriya Swayamsevak Sangh intuitively opposes inter-religious marriages of any kind.

To analyse this law legally or constitutionally is an insult to the vision of our Constitution makers, who imagined a pluralistic society comprising different faiths and ethnicities, and the deep intermingling between them. If we discuss each of the provisions of this law, it will be giving legitimacy to a perverse, mala fide legislation. To use a legal term, this law is quite simply ‘prima facie’ illegal, not because of what it says it does, but what it ‘actually does’.

Discussing the various provisions of this law is futile because its purpose, quite simply, is: criminalise the Muslim, criminalise a Hindu for loving a Muslim, and criminalise their love. It has nothing to do with forced marriages or conversions because such crimes are already covered by existing laws.

Apart from targeting Muslims, the Ordinance also robs consenting adults of their right to choose a partner or their faith. It seeks to control the agency of an adult woman to choose whom she wants to marry. And it must be called out for what it is: a deeply racist legislation.

It is also not just about inter-religion marriage. It is much more than that. While the ruling Bharatiya Janata Party-led government has been pushing its ideological agenda and polarising the country to bolster its electoral fortunes, the Supreme Court's handling of the Hadiya case does not inspire much hope.

Rather than dismissing the Hadiya case at the outset, the court ordered enquiries which gave legitimacy to this claim. The National Investigation Agency was asked to conduct an enquiry, and the girl was summoned only after multiple hearings lasting over a few months.

Meanwhile, the media kept sensationalising the issue, which gave fodder to those making wild allegations of “brainwashing” and “terrorism” against the husband. While the Supreme Court's decision eventually helped restore Hadiya’s dignity and to assert her will as an adult woman, the damage in the public sphere had been already done.

One could perhaps draw parallels with the Black Nuremberg laws of 1935 brought in by Nazi Germany against the Jews, Romas and other minorities. The love story of August Landmesser, a member of the Nazi party and Irma Eckler, a Jewish woman is well known. Landmesser was expelled from the Nazi party and arrested for marrying Eckler because of the 1935 Black laws, which made such a marriage illegal.

The UP Ordinance is yet another explicit sign that the undoing of our Constitutional principles has begun, and as history shows, it will not stop with the targeting of Muslims. That a term as horrendous and demeaning as "love jihad" has found currency in our public discourse and influenced legislation speaks volumes about how low we have sunk as a society. If we sink any lower, then from the deep abyss, we may not be able to salvage any pages of our great Indian Constitution—forget the fundamental rights—enshrined in Part III.

The writer, a Delhi-based lawyer.

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