On September 29, the Allahabad High Court declined to order police protection to a newly-married couple. The woman, Muslim by birth, had converted to Hinduism a month before their marriage on July 31.

In the order, citing a precedent, the High Court said that religious conversion only for the sake of marriage, without any knowledge of or faith in the religion the person is adopting, was not acceptable.

Though the judgement was delivered in September, it was reported in the media only last week.

On November 1, at a public meeting in Uttar Pradesh, Chief Minister Adityanath cited this two-page judgement to issue a warning to those who concealed their religious identity to “exploit women” – he said they should mend their ways or be prepared for their “final journey”.

Adityanath also said that his government will stop “love jihad” by bringing in a stringent law.

The term “love jihad” is used by right-wing Hindutva activists as a pejorative for inter-religious marriages between Muslims and Hindus. The term is mostly deployed to allege a conspiracy on part of Muslim men to lure Hindu women through love with the intent of converting them to Islam.

After Adityanath’s statement, the chief ministers of Haryana and Madhya Pradesh, both BJP-ruled states like Uttar Pradesh, said they were also mulling the enactment of a law to combat “love jihad”.

Haryana Chief Minister Manohar Lal Khattar went one step further and said the Central government was also looking into ways to prevent “love jihad”.

“Since the Ballabhgarh case is being linked with love jihad, the Centre, as well as the state government, is looking into it, and considering legal provisions so the guilty cannot escape and no innocent person is punished,” Khattar said at a press meet. He was referring to the murder of a 21-year-old woman in Faridabad on October 26. Two Muslim men have been arrested in the case, one of whom was previously accused of stalking and harassing her.

While chief ministers belonging to BJP-ruled states have taken advantage of the Allahabad High Court order to push the narrative of “love jihad”, the High Court order itself has several serious legal problems.

While the narrative is being framed as attempts to protect women from exploitation, at the heart of the controversy emanating from the High Court order is how the legal system has viewed the question of religious conversion.

In what may seem like a contradiction, the courts have used the right to conscience, which gives a citizen the right to make free choices subject to the laws of the land, to allow for laws that bar conversions. In that sense, the courts have said in order to protect the right to conscience of an individual, it is necessary to ensure conversion is out of free will without coercion or inducement.

Given this context, can the BJP-ruled states enact a law to ban what they term as “love jihad” or the use of love and marriage as an inducement to convert a person to Islam or to any other religion?

Right to conscience

The right to conscience is enshrined in Article 25 of the Constitution along with the right to profess, practice and propagate religion.

Given that India is a secular country, these rights apply to individuals of all religions equally.

According to the courts, the right to conscience and religion also means that one person’s religious rights cannot infringe upon the right of another.

The right to conscience has also been framed independent of the right to religion. This means one can be non-religious and exercise the right to conscience, which according to the dictionary meaning involves “a knowledge or sense of right or wrong, moral judgement that opposes the violation of previously recognised ethical principles and that leads to feelings of guilt if one violates such principles”.

Thus, an individual’s exercise of conscience cannot be restricted simply because it does not conform to the ethics and morals set by a religion. If an individual feels a religious principle is violative of his or her ethical beliefs, and if the individual’s ethical beliefs are not in violation of laws or are in the manner of restricting the exercise of another person’s rights, the right to conscience cannot be circumscribed.

Given these elements, how does the state derive powers to impose restrictions on religious conversions, which in essence is an exercise of conscience? Are there specific rules on when a religious conversion is an exercise of right to conscience and when it is not?

These questions were answered by a Constitution bench of the Supreme Court in 1975, in what has come to be popularly referred to as the “anti-conversion law case”.

Anti-conversion laws

In 1975, the Supreme Court had to rule on which interpretation of Article 25 was correct. The High Courts in Madhya Pradesh and Odisha gave contrasting rulings on the constitutionality of anti-conversion laws passed by the respective states.

While the Madhya Pradesh High Court upheld the state’s law, the High Court in Odisha struck down the anti-conversion law passed by the Odisha government.

The High Courts took very divergent routes to arrive at their conclusion.

In Odisha, the court held that the wording in the anti-conversion law of the state was vague and was prone to misuse. The High Court said the definition of the term ‘inducement’ is vague and many proselytising activities may be covered by the definition and the restriction in Article 25 (1) cannot be said to cover the wide definition.

What are these restrictions in Article 25 (1)?

Public order, morality, health and other fundamental rights enumerated in Part 3 of the Constitution.

Secondly, the Odisha court held that the state had no jurisdiction to enact such a law since it was a law on religion that does not fall either in the state list or concurrent list and so automatically fell in the jurisdiction of the Parliament. It refused to accept the argument that an anti-conversion law is merely a law to protect public order given the scope for disturbance of public peace in case of forced conversions.

The Madhya Pradesh High Court, on the other hand, accepted the argument that the anti-conversion law is essentially a law protecting public order and so is covered by the reasonable restriction on right to religion and conscience prescribed in Article 25 (1) of the Constitution. It then upheld the state law.

Given two contrasting judgements, the matter moved to the Supreme Court.

Supreme Court and anti-conversion law

The Supreme Court in 1975 backed the Madhya Pradesh High Court interpretation of the anti-conversion law.

In simple terms, the Supreme Court said that conversion through inducement, fraud or force is a violation of a person’s conscience as it forces them to do something against their conscience.

The court said:

“We have no doubt that it is in this sense. that the word ‘propagate’ has been used in Article 25 (1), for what the Article grants is not the right to convert another person to one’s own religion, but to transmit or spread one’s religion by an exposition of its tenets. It has to be remembered that Article 25 (1) guarantees “freedom of conscience” to every citizen, and not merely to the followers of one particular religion, and that, in turn, postulates that there is no fundamental right to convert another person to one’s own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the “freedom of conscience” guaranteed to all the citizens of the country alike.”

The court also declared that the states had the jurisdiction to enact such laws as it is a matter of public order. Forcible conversions, the court held, have the propensity to disturb public order, a term that has been given a wide reading by the courts and in which the state has much discretion.

The court added:

“The Acts therefore dearly provide for the maintenance of public order for, if forcible conversion had not been prohibited, that would have created public disorder in the States...”public order” is an expression of wide connotation and signifies state of tranquility which prevails among the members of a political society as a result of internal regulations enforced by the Government which they have established.”

Therefore, the BJP-ruled states which have said that they are exploring the possibility of a law to combat “love jihad” may very well frame the matter as a public order problem and seek to regulate interfaith unions in the garb of maintaining public peace.

However, while the 1975 judgement upheld the validity of anti-conversion laws, it did not say that a person should not convert for the sake of marriage.

The Allahabad High Court had cited a different judgement as a precedent to put forth the argument that conversion only for the sake of marriage is not acceptable. But even this precedent quoted by the court does not actually say what the High Court has interpreted it to be.

Conversion for marriage

The Allahabad High Court judgement cited a precedent of the same court from 2014 to state that conversion for the sake of marriage was not acceptable. The precedent it cited, in turn, was built on a judgement delivered by the Supreme Court in 2000.

In the 2014 case, the Allahabad High Court dismissed a batch of petitions in which women had converted to Islam before getting married under Islamic customs. When the court asked them about their beliefs, they said they did not know anything about Islam, they had converted to the religion for the sake of marriage.

This, the court said, was unacceptable as under the Islamic law, conversion would entail acceptance of Allah as the only God and Mohammed as his last prophet. If the conversion is void, then the marriage or nikah is also illegal.

It then went on to say that the Supreme Court had held in Lily Thomas vs Union of India that conversion for the sake of marriage was not acceptable.

The Lily Thomas case essentially involved a Hindu man converting to Islam for the sake of marrying a second wife. This practice, the court held, was abhorrent. The judgement also provided a legal remedy. It categorically said that even if the man converts, if the marriage with the first wife was legally alive as per the Hindu Marriages Act, he would be liable for prosecution for bigamy. The conversion or apostasy only creates a legal ground for divorce but does not automatically change the position of the first marriage.

Thus, the question that emanates is whether this principle that conversion to a religion for the sake of marriage would apply for the first marriage itself and to a marriage after proper divorce.

In the 2014 judgement, alongside citing the Lily Thomas case, the Allahabad High Court also made observations about the Muslim law of marriages. It quoted Sura II Ayat 221 of the Holy Quran, which states that a Muslim man should not marry unbelieving women “until they believe.”

Thus, the court said that since the women had not converted for faith but only for the sake of marriage, such a conversion and the subsequent marriage was void under the Islamic law.

Therefore, the 2014 High Court judgement seems to be an additional finding over and above the Lily Thomas case on the nature of conversion to Islam and the validity of marriages under the Islamic law following a conversion that is not for belief.

Lawyers have argued that the Allahabad High Court reading of the Lily Thomas case was flawed and its judgement in the 2014 case went into unnecessary questions. Shruti Narayan pointed out in The Quint that in the 2014 cases, the petitions were for police protection whereas the court embarked on a wide-ranging discussion about Islam, conversion and marriages under the Muslim personal law, before declaring the conversion and the marriages as against Islamic tenets.

In the September judgement, the High Court was called upon to do something similar, that is provide police protection to the couple. It is to be noted that in the September case, the woman was a Muslim by birth and had converted to Hinduism to marry the man as per Hindu rites. In that sense, if accusations of exploitation hold, then the case cannot even be termed “love jihad”. In any case, such a term has no legal standing in any law.

In the two-page order refusing to direct protection to the couple, the High Court came to the conclusion that because the woman converted just a month before marriage, it was clear that she changed her religion only for the sake of marriage.

The court then cited the observations made in the 2014 case.

As pointed out by Narayan, neither in the 2014 case nor in the September 2020 case were there any allegations that the marriage was non-consensual. There were no charges of either of the couple being a minor or that these were attempts at bigamy.

A further point to be noted is that the order in the September case, unlike the 2014 case, does not record that the woman had said that the man had got her religion changed for the sake of marriage.

The court said:

“The Court has perused the record in question and found that the first petitioner has converted her religion on 29.6.2020 and just after one month, they have solemnized their marriage on 31.7.2020, which clearly reveals to this Court that the said conversion has taken place only for the purpose of marriage.”

Under the Hindu marriages Act, what is enumerated for a valid marriage is that the couple should be Hindu. A person is a Hindu if either parents are Hindus and is brought up in the faith or if the person converts or re-converts to Hinduism from another religion.

If one went by the Allahabad High Court judgement, several complicated questions over faith in Hinduism will crop up.

Hindu marriages

Unlike the Quran, the Hindu Marriages Act does not say that a person should not marry an unbelieving man or woman. If both are legally Hindus with sound minds without subsisting marriages and their marriages are solemnised according to the Hindu customs, it becomes a valid union.

Let us consider another scenario. What if the person wants to be Hindu but does not believe in the customs and traditions of Hinduism? There are thousands of non-believers in the Hindu religion and some claim that Hinduism itself sanctions atheism or non-belief. Can it now be said that unless a person expressly believes in certain customs or gods, he cannot be Hindu?

Thus, the application of the 2014 precedent in the September order was blatantly illogical for multiple reasons.

Over and above these considerations, there is the question of consent and privacy. Both the individuals are adults and to dispute their right to marry strikes at the very heart of right to liberty under Article 21 of the Constitution.

Curiously, even in the Uttar Pradesh case, the court has only refused protection and not annulled the marriage. It is in fact legally impossible to do so as no one else but the couple could move the civil court for such an order.

Similarly, in yet another order passed in a habeas corpus petition filed by a woman’s family in October, the Allahabad High Court again observed that conversion for the sake of marriage was disconcerting and asked inter-faith couples to use the Special Marriages Act instead. However, as the woman, who had converted to Islam, was a major and she deposed before the court that she married the man out of her own will, the court closed the case and set her at liberty.

Dangerous precedent

What the Allahabad High Court order in September has done is that it has perhaps unintentionally provided ammunition to communal bigots to disrupt the exercise of individual autonomy in personal decisions.

It is clear that the proposals for a legislation to stop “love jihad” is motivated not by some sympathy for women, but with the sole purpose of stopping conversion and inter-religious unions. It also is a ploy to increase the role of the state, and in consequence vigilantes attached to the ruling dispensation’s ideology, in the personal lives of the citizens.

Let us for a moment assume that a law is passed mandating that individuals cannot convert for the sake of marriage. How will the state determine the real motivation for conversion? Would a self-declaration suffice? Or if the logic used by the Allahabad High Court, that the conversion happened just month before the marriage, be used? That is, will there be a cooling off period between conversion and marriage? Will even such a rule satisfy communal bigots?

Such a proposition would only lead to harassment of inter-religious couples and possible violence.

To frame a matter of personal autonomy as that of public order would be to hollow out the right to liberty and privacy. If communal bigots create a public order problem because two individuals chose to marry, the duty of the state is to clamp down on intimidation and infringement of rights, not go into a digging expedition to determine the validity of someone’s belief.

In this, the courts should also show restraint in making observations that could be misused by politicians to further an ideological agenda.