How ‘Love Jihad’ Laws Undermine Women’s Agency, Violate Article 21

Professor Faizan Mustafa explains why UP’s new ordinance and such laws go against India’s constitutional vision.

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“I think this whole proposal of passing such laws is absolutely against the constitutional vision and is against the civil liberties jurisprudence – and is nothing more than a diversionary technique by governments who are not performing their primary duties.”
Professor Faizan Mustafa

Professor Faizan Mustafa, the vice-chancellor of NALSAR university and reputed constitutional law expert, had strong words for Uttar Pradesh’s new ordinance and other proposed state-level laws that are meant to deal with the supposed threat of ‘love jihad’ under the guise of anti-conversion provisions.

“We are trying to once again propagate something which does not exist, it is an entirely false narrative,” he said, explaining how the idea of ‘love jihad’ is a resurrection of scaremongering over inter-faith marriages that was first seen back in the 1920s, but for which even the current BJP government at the Centre admits there is neither a definition nor evidence.

It is also an attack on people’s autonomy and freedom to choose who they want to be with, which is being used as “diversionary technique” to prevent people from discussing and understanding more pressing issues like unemployment and public health in light of the COVID-19 pandemic, he believes.

“In any way, when you have more pressing issues in an unprecedented year due to COVID-19, any government which treats this law as a priority, I think has some problem with their vision of governance.”
Professor Faizan Mustafa

‘False Narrative to Polarise Society’

Professor Mustafa notes that it is difficult to see how a good faith argument can be made in favour of these laws, given previous ‘anti-conversion’ laws (such as those in Madhya Pradesh, which is also enacting a new law) have proved to be failures, with no convictions.

The fact that these new laws, like UP’s ordinance, seek to enhance the punishment to up to 10 years in jail – the same as the sentence for incredibly serious crimes like dacoity and waging war against the state, makes him think “there is something wrong with their legal advisors.”

Professor Mustafa warns that this is another example of ‘over-criminalisation’, where a criminal remedy is being forced in to deal with situations where civil remedies (and other criminal law offences) already exist to address any genuine problems.

Marriages without genuine consent can be nullified already under various marriage laws, and any coercion or kidnapping of a woman to force her into a marriage can be punished by provisions under the IPC – as a result, he is of the opinion that there was little need for a law on this, and definitely no need for UP to go down the ordinance route.

“This power to promulgate ordinances has been given to you when there is a pressing emergency,” he contends, arguing that the UP ordinance is therefore a “misuse of the ordinance-making power.”

He notes that the Kanpur SIT set up to probe these cases has also failed to find any conspiracy or concerted effort to engage in these duplicitous conversions, which means instead of being an urgent problem, the ‘love jihad’ narrative is instead a false narrative to polarise society.

The Undermining of Women’s Agency

But even more than this polarisation, Professor Mustafa argues that the biggest concern here is the undermining of women’s agency because of the way these laws treat the women who choose to get married to someone from a different faith, including by converting their religion to do so.

“What worries more is that in this entire process, we are compromising agency of women. We think that they are not capable of taking their decisions. And therefore we are trying to ‘discipline’ them through love jihad (laws). That they will not have a choice, they won’t be able to make the right choice – they can be allured and induced and coerced, and they will not know what’s best for them. I think women should in particular oppose this kind of law because it undermines their autonomy, their freedom and agency and violates their sexuality, their freedom to choose their partners.”
Professor Faizan Mustafa

Are These Laws Unconstitutional?

Professor Mustafa explains that Article 21 of the Constitution guarantees the right to life and personal liberty. But this isn’t about a mere ‘animal existence’: the Supreme Court has emphasised multiple times that dignity is an essential part of this.

The landmark nine-judge Puttaswamy judgment in 2017 reaffirmed that privacy was a also an integral part of the right to life and personal liberty.

“And, therefore, every individual, irrespective of his religion, is free to make his choices. One has the autonomy to decide what food he or she wants to eat, what dress he or she wants to put on, and whom we want to marry or live in with,” he said.

“Any law which curtails this freedom is clearly in the teeth of Article 21. Similarly for conversion... Religion is a purely personal, private matter. Religion has nothing to do with the state.”
Professor Faizan Mustafa

This is not merely a matter of theory, he points out. The UP government referred to a single judge order of the Allahabad High Court which said conversion purely for the sake of marriage was illegal, as justification for its move to bring in a law.

However, he notes that a division bench of the same high court (ie two judges) specifically overruled that earlier order recently.

Moreover, the Supreme Court in the Hadiya case had also clearly held that it was purely for the adult woman in that case to make her choices, whether to convert or marry.

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