(This story was first published on 27 November 2020, and is being republished from The Quint's archives to mark one year since the anti-conversion law in Uttar Pradesh came into effect.)
The Uttar Pradesh government recently passed an ordinance against ‘unlawful religious conversion’, which, among other measures, criminalises religious conversion done solely for the purpose of marriage, and states that such marriages will be declared void.
Other BJP-ruled states such as Haryana, Madhya Pradesh, Karnataka, and Assam have also announced that they are considering similar laws.
UP Govt’s Ordinance Is Clearly Aimed At Conversion To Islam
That the law is targeted at conversion to Islam in particular, is made amply clear by the use of the term ‘love jihad’ by the concerned governments and law-makers, who have made no attempt to disguise the fact that it is aimed at preventing Hindu women from marrying Muslim men.
Hindu men marrying outside the community, are of course, not a cause for concern, since it is assumed that the woman adopts her husband’s religion and the children too, would be treated as Hindus. The demographic advantage is safe.
Recall the backlash against the recent Tanishq ad, where a common criticism was that the jewellery company ought to have portrayed the man, and not the woman, as a Hindu if they were so keen to show an inter-faith marriage, and by not doing so, they were hurting Hindu sentiments.
In a patriarchal world, co-opting a woman from another religion is seen as a win; losing a daughter is losing honour. The way to a community’s heart is through the womb.
Loopholes In Anti-Conversion Laws
India has a long history of controversy over religious conversion, with 8 states currently implementing some form of anti-conversion law, starting with Odisha in 1967, followed by Madhya Pradesh, Arunachal Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand and Uttarakhand. Broadly, all these laws seek to prevent any person from converting or attempting to convert, either directly or otherwise, another person through ‘forcible’ or ‘fraudulent’ means, or by ‘allurement’ or ‘inducement’.
While force and fraud are clearly elements that vitiate the free consent required for a valid conversion, the issue of ‘allurement’ or ‘inducement’ has been contested. These terms are vague and over-broad, and appear to encompass a range of motivations for conversions that may be purely voluntary and genuine.
Unsurprisingly, most of these laws have a higher punishment for converting a woman than a man. Only a couple of states like Himachal Pradesh and Uttarakhand have a specific provision targeting inter-faith marriages, both of which were introduced in the last 2 years.
With the current set of legislations being planned, all of which focus on conversion by marriage, four more states look set to join the fold – UP, Karnataka, Haryana and Assam, while MP has indicated that it may introduce marriage specific provisions too.
While the original impetus behind anti-conversion laws was a concern with Christian missionary and proselytisation activities, the renewed interest appears entirely focused on conversion to Islam.
Dear Lawmakers, Treating Women As ‘Property’ To ‘Protect’ Them, Is Not The Solution
The punishments are much more severe, and the focus on marriage takes the issue far further into the realm of personal liberty and gender equality than the earlier generation of anti-conversion laws.
Frequently, examples of fraudulent, coerced, or otherwise abusive marriages are cited as justification for such laws. The fact is that inter-faith marriages are not exceptional in this regard, and there are several less discriminatory, less intrusive measures that exist to deal with offences of fraud, coercion and abuse, both in personal laws as well as civil and criminal law.
Treating women as property in order to protect them isn’t the solution, it’s the same problem.
Lawmakers need to discard the idea of protecting women, and focus on empowering them.
Is The Special Marriage Act Truly ‘Progressive’?
As with all legislation, the devil lies in implementation and effect. Theoretically, the Special Marriage Act is a progressive law that facilitates inter-faith marriages. And yes, for people of privilege, living in relative disconnect from religious communities, and who have supportive parents, it is. For the rest, practices such as sending notices to the couple’s parents, and posting public notices that attract the attention of religious mobs make it considerably less so.
Here too, it is the same.
Theoretically, the law applies to all conversions. In practice, we can be reasonably certain which cases will attract the attention if authorities, and in which cases conversion is likely to be disallowed.
Theoretically, a woman can defy her parents, hire a lawyer, file the necessary paperwork for conversion, stand up in a court of law on the appointed day and state whatever is required for the magistrate to believe that her conversion was legal, file an appeal in case permission is denied, and everyone can tell themselves that there is no restriction on her rights.
In practice however, this is not going to be the case. From the chilling effect of the law’s very existence, to the social pressures and hanging threat of criminalisation, the expense and complication of legal formalities, excessive discretion that comes with deliberately vaguely drafted legislation – the law is intended to, and will create, an obstacle course that one has to clear in order to get married, and only a privileged few will succeed.
Who Bears The Burden Of Proof In Conversion?
The law strangely places the burden of proof on the person who has converted, to show that it was genuine rather than on the person alleging that it was illegal, a provision that is onerous, and ought to be struck down as being arbitrary and unconstitutional.
It further allows a convert’s parents and family members to approach the authorities to investigate the conversion, a measure which is prone to abuse and has often resulted in coercion and false cases from parents, in addition to undermining the agency and autonomy that is due to every adult.
The Freedom to Choose
The right to personal liberty, which includes the right to privacy and decisional autonomy, is enshrined in Article 21, and Article 25 guarantees the right to freedom of conscience. The current set of laws threaten these most basic constitutional freedoms – to practice a religion of one’s choosing, and to choose one’s life partner, and they do so while also eroding the bedrock principle of gender equality, in as much as they are intended to, and in practice too, do little more than prevent adult women from exercising their agency.
The Supreme Court dealt with these precise issues in the Hadiya case, and was explicit that parental authority has no role to play when an adult has taken the decision to convert.
In the face of that decision, it is unclear how the present set of legislations will stand judicial scrutiny.
Present Set Of Legislations Are ‘Deliberately Oppressive’ Towards Women
The legislation and the rhetoric surrounding it rest entirely on two notions that have no place in a modern, egalitarian society. The first is the idea that one’s religion is a matter for family or community, rather than a question of individual conscience. The State has no business legislating on such matters, and whether someone is converting to a new religion because they are in love, or after a spiritual epiphany, or, as the right-wing likes to claim, for a bag of rice, is irrelevant, as long as they are doing it voluntarily.
The second is the utter infantilisation of women. It portrays women as weak, ignorant, and easily brainwashed.
It treats adult women as the property of their parents, and of the community they are born into. It ignores their own choice and agency – both with respect to their choice of faith, as well as their choice of partner.
And it does this not even out of a misplaced sense of concern for women, but as a deliberately oppressive move, aimed at simultaneously criminalising Muslim men and controlling Hindu women, all for the sake of a politically convenient demographic.
(Mihira Sood is a lawyer and academic specialising in gender equality. She tweets @mihira_sood. This is an opinion piece, and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
(At The Quint, we are answerable only to our audience. Play an active role in shaping our journalism by becoming a member. Because the truth is worth it.)