By Shivang Berry and Yash Tayal
Introduction
In the past, various Indian States have enacted Anti-Conversion statutes for curbing unlawful religious conversions with a view of “preventing the disruption of society and culture.”[1] Such statutes earlier provided for preventing religious conversions on the grounds such as force, allurement, or inducement.[2] However, they have been criticised for their generality; vague definitions of terms such as “inducement” make it hard for a convert’s volition to be assessed.[3] Thus, over the years, criminal consequence stemming from Anti-Conversion Laws has been made even more rigorous. One such instance is making the advance notice to the District Magistrate for a conversion “mandatory”.[4]The recent trend which permeates these anti-conversion laws (‘love jihad’ laws) is the marriage as a sole ground for unlawful conversion from one religion to another. Such legislations have been enacted on the pretext of addressing the problem of purported love jihad.[5] For instance, the recent Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020, like its various counterparts,[6] mandates both the individuals intending to change their religion and the person facilitating the act of conversion to send a prior notice to the District Magistrate seeking their approval.[7] This course of action, if not followed, entails severe penal consequences, imposing the punishment for not less than one year but extending up to 5 years under the ordinance.[8] Section 4 of the Ordinance also grants any person related to the convertee by marriage or blood to lodge an F.I.R. in case of such conversion.[9]
Before moving into the legality of such laws, it is necessary to contextualize the majoritarian narratives pertaining to love jihad. The notion of love jihad entails the conspiracy induced by Muslim fundamentalists to convert women from other faiths to Islam. Such narrative not only casts aspersion on the men belonging to certain community but also denies the agency of the women from the other faiths seeking to convert.[10] Consequently, when the Anti-conversion laws are reinforced by love jihad, it leads to a precarious nexus between ‘Islamophobic’ and ‘patriarchal’ elements.
With more States to follow the trail of their counterparts in bringing similar laws,[11] it is pertinent to analyse the desirability of the criminal consequence of love jihad laws through the lens of the Utilitarian theory of criminal law. Since providing a powerful critique against the criminalisation of sodomy laws, utilitarianism has been considered an effective tool to understand the tussle between society’s criminal laws and morals. The basic premise of such formulation is based on the “harm principle,” i.e. whether they pose a danger to society but oneself.[12] John Stuart Mill, one of the most influential philosophers, emphasised on the non-interference of the State into an individual’s personal sphere even if it affects others, subject to their voluntary and free participation.[13] He argued that majoritarian beliefs or society’s sense of righteousness could not justify punishment. In other words, actions that are “self-regarding” in nature should not be scrutinised by the State and society. Jeremy Bentham, the founder of the modern utilitarian tradition, employed the “utility of the punishment” as a tool to critique penal laws.[14] Bentham considered inflicting punishment to be unjustifiable if it “fails to serve as a deterrent, or is unprofitable or unnecessary.”[15]
Consequently, Utilitarianism entails the following situations where it is utilitarian to inflict punishment: (a) Where there is a need: where there is reasonable mischief for it to prevent; the act being mischievous upon the whole. (b) Where it is not unprofitable or affordable: where the mischief produced would not be greater than what it prevented. (c) Where there is a need: where the mischief may not be prevented or cease of itself.[16]
In this article, we argue that the criminal consequence arising out of love jihad Laws is unfounded as they fail to satisfy the principles of the Utilitarian theory of criminal law. In furtherance of this objective, Part II of the article shall be analysing whether there exists substantive mischief in the form of Love jihad in the society which the states intend to prevent through such strict penal laws. Part III of the article would dwell upon the second requirement under Benthem’s idea of Utilitarianism and puts forth that the ruckus created through the enactment of such legislation in the Indian social ecosystem is much greater than the wrong they intend to prevent. Part IV shall envisage to prove that the existing civil and criminal law remedies under Indian laws are sufficient to deal with the problem of forced marriages, thereby making these anti-conversion laws contrary to the third and the final requirement under the theory of Utilitarianism to justify penal actions.
Love Jihad: Mischief or Illusion?
The first situation pertaining to the infliction of punishment is the sufficiency of mischief to be prevented. Bentham noted that it is not utilitarian to prescribe a punishment where there exists no mischief for it to prevent.[17] Before enacting the love jihad laws, the State of UP declared thatit is in the process of formulating a strict law with severe penal consequences to deal with the issue of Love jihad.[18] The notion of love jihad entails the conspiracy induced by Muslim men to convert women from other faiths to Islam.[19] The state so far has been unable to show evidence of any adverse effect on public order through such alleged cases of love jihad.
Further, the probe conducted by the Special Investing Team in Kanpur concluded that no traces of any organised conspiracy could be found in the alleged cases of love jihad.[20] While deciding upon the Hadiya case,[21] the Supreme Court ordered an in Kerala, and during the examination of all such alleged cases, not even slight evidence could be unearthed to support the absurd notion of love jihad.[22] The Ministry of Home Affairs also submitted last year to the parliament that no central agency reported any cases of love jihad.[23] Hence, love jihad laws fail to address any material mischief in the society, thereby failing to meet the necessary requirement to inflict the punishment.
Chilling Effect on Inter-Faith Marriages: Mischief Produced Is More Significant Than What It Seeks To Prevent
Bentham argued that it is not utilitarian to impose punishment if the criminal consequence results in greater mischief than it seeks to prevent.[24] After two months of ordinance coming into force in the State of Uttar Pradesh, 86 people have been arrested, with all the key accused being Muslim.[25] The idea behind these legislations subscribes to the notion of radical Hindu groups who see these actions as countermeasures to save the honour of Hindu women being intruded on by those they still consider ‘mlechchhas’ or outsiders in a narrative where they are still not ready to accept the integration of Muslim men into the Indian social ecosystem.
An NDTV investigation revealed that many Hindu girls from Kanpur had been engaged in interfaith marriages out of their free volition sans any coercion from the other side to convert.[26] In most cases, the girls’ families alleged that their daughters had been coerced and deceived. Here, the police could have at most asked the girls to present before a magistrate and submit a notarized affidavit, but instead, they registered cases against the Muslim boys’ families and arrested them with an ulterior motive of harassing them.[27] Some right-wing Hindu activists and now police have got blanket protection to probe every Hindu-Muslim marriage under the guise of Love jihad.
Furthermore, contrary to the well-settled principle of Criminal Jurisprudence – no retrospective effect must be given to any criminal law[28] – the U.P. police opened the settled matters to register cases against the Muslim families under these new Anti-conversion laws.[29] Clearly, the mischief produced by such anti-conversion laws is greater than the mischief intended to prevent, and thus the action is not utilitarian.
Adequacy of Existing Laws to Deal With The Mischief
Love jihad laws seek to prevent the mischief of forced conversions through the institution of marriage. This brings us to the third limb of assessing the utility of punishment, i.e. need of the law. Bentham argued that it is not utilitarian to enact laws where the existing laws are capable of preventing the mischief at a cheaper rate.[30] Firstly, in the case of K.S. Puttaswamy v. Union of India,[31] the Supreme Court emphasised on the notion of Decisional Autonomy, stating that; it is “reflected by an ability to make intimate decisions primarily consisting of one’s sexual or procreative nature and decisions in respect of intimate relations.”[32] The court squarely held that the right to choose a partner is a Fundamental Right under Article 21 of the Indian Constitution.
Further, there are wide-ranging laws that deal with the mischief of forced marriage in India. Under section 366 of the IPC[33], the criminal consequence of abduction for the purpose of compelling a woman to marry against her will extends up to 10 years of imprisonment. Furthermore, the civil laws in India provide that any marriage in which consent of either of the spouse was taken due to coercion, misrepresentation or any sort of duress than such marriage shall be deemed void.[34] Personal Laws, including Islamic law, consent of the parties constitutes a prerequisite to a valid marriage.[35] These already existing laws that provide both civil and criminal remedies to any victim of forced marriage are adequate to cater to forced marriages in India and defy the need to formulate any such radical laws.
Conclusion
Love jihad Laws under the guise of “Freedom of Religion” results from the long-drawn trend of fear psychosis spread in the society against specific communities. These laws subscribe to the prevailing notions of societal narratives where interfaith marriage is still considered a sinful and immoral act. Moral convictions by society, however strong, are not a valid basis for bringing any action under the ambit of criminal law. As Bentham, in his paper “Offences against one-self”, emphasised that any sort of criminal punishment must only be prescribed to avoid a greater evil in the society,[36] and these love jihad laws have squarely failed to prove the existence of any such greater evil in the society which they intend to prevent.
The State has neither been able to justify the necessity nor been able to prevent the greater mischief and ruckus which the criminalised nature of these laws has created in the society. In the debate on the interplay between criminal law and moral convictions, utilitarianism theory of criminal law is the intersection according to which the notions of societal morality must not overly sway the legislators. Such disguised targeted laws which induce harassment towards specific communities embolden majoritarianism and are jurisprudentially and democratically impermissible.
The authors, Yash Tayal and Shivang Berry, are undergraduate law students at the National Law Institute University (NLIU), Bhopal.
[1]Orissa Freedom of Religion Act, 1967; Madhya Pradesh Freedom of Religion Act, 1968; Arunachal Pradesh Freedom of Religion Act, 1978; Gujarat Freedom of Religion Act, 2003; The Himachal Pradesh Freedom of Religion Act, 2006.
[2]The M.P. Dharma Swatantrya Adhiniyam, 1968, §3; Orissa Freedom of Religion Act, 1967, §2; Gujarat Freedom of Religion Act, 2003, §3; The Himachal Pradesh Freedom of Religion Act, 2006, §3.
[3]Laura Dudley Jenkins, Legal Limits on Religious Conversion in India, 71 Law and Contemporary Problems 109, 120 (2008) available at https://scholarship.law.duke.edu/lcp/vol71/iss2/9/, (Last visited on April 04, 2021).
[4]Gujarat Freedom of Religion Act, 2003, §5(1); The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, §8(1) (November 27, 2020).
[5]The Himachal Pradesh Freedom of Religion Act, 2019, §3; The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, §3 (November 27, 2020), See Iram Siddique, MP ‘love jihad’ Bill tougher, but limits who can file FIR, December 27, 2020, available athttps://indianexpress.com/article/india/mp-love-jihad-bill-tougher-but-limits-who-can-file-fir-7121497/ (Last visited on April, 04, 2021).
[6] The Himachal Pradesh Freedom of Religion Act, 2019, §7(1); Madhya Pradesh Freedom of Religion Ordinance, 2020, §10(1) (January 9, 2021).
[7]The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, §8(2) (November 27, 2020).
[8]Id., §8(6).
[9]Id., §4.
[10]Charu Gupta, Hindu Women, Muslim Men: Love Jihad and Conversions, 14 Economic and Political Weekly (December 19, 2009).
[11] Nolan Pinto, After UP, MP, Haryana, Karnataka govt mulling law against ‘love jihad’, says Home Minister Bommai, November 04, 2020, available at https://www.indiatoday.in/india/story/after-up-mp-haryana-karnataka-govt-mulling-law-against-love-jihad-says-home-minister-bommai-1738043-2020-11-04 (Last visited on May 10, 2021).
[12]J.S. Mill, On Liberty, 30 (John Gray & G.W. Smith, 1st ed., 1991).
[13]Id., 91.
[14]Jeremy Bentham, An Introduction to the Principles of Morals and Legislation180 (1907), available at http://fs2.american.edu/dfagel/www/Philosophers/Bentham/principlesofMoralsAndLegislation.pdf, (Last visited on May 9, 2021).
[15]Navtej Singh Johar v. Union of India, (2018) 10 SCC 1, ⁋134 (per D. Y. Chandrachud J.).
[16]Bentham, supra note 14, 183–185.
[17]Id., ⁋X.1,183.
[18]Indian Express, Yogi’s love jihad warning: ‘Your Ram Naam Satya journey will begin if you don’t mend ways, October 31, 2020, available at https://indianexpress.com/article/cities/lucknow/yogi-adityanath-love-jihad-law-uttar-pradesh-6911537/, (Last visited on April 17, 2021).
[19]L.D. Jenkins, Religious freedom and mass conversions in India, 182, 205 (1st ed., 2019).
[20]Omar Rashid, SIT in Kanpur does not find conspiracy in ‘love jihad’ cases, November 24, 2020, available at https://www.thehindu.com/news/national/other-states/sit-in-kanpur-does-not-find-conspiracy-in-love-jihad-cases/article33164381.ece, (Last visited on April 17, 2021).
[21]Shafin Jahan v. Asokan K.M. & Ors., AIR 2018 SC 1933, ⁋82.
[22]Rajesh Ahuja, NIA ends Kerala probe, says there’s love but no jihad, October 18, 2018, available athttps://www.hindustantimes.com/india-news/nia-ends-kerala-probe-says-there-s-love-but-no-jihad/story-wlpWR7BMNcdJHkb1MUso4J.html, (Last visited on April 18, 2021).
[23]Neeta Sharma, “Love jihad” Not Defined, Not Reported by Central Agencies: Government, February 4, 2020, available at https://www.ndtv.com/india-news/love-jihad-not-defined-not-reported-by-central-agencies-government-2174808, (Last visited on April 17, 2021).
[24]Bentham, supra note 14, ⁋ XII, 184.
[25]Utkarsh Anand, 79 of 86 booked under new law are Muslims, January 9, 2021, available at https://www.hindustantimes.com/india-news/79-of-86-booked-under-new-law-are-muslims-101610162090746.html, (Last visited on April 16, 2021).
[26] N.C. Asthana, Ulterior Motive of ‘Love jihad’ Laws Is to Drive Muslims Out of the Social Ecosystem, November 9, 2020, available athttps://thewire.in/communalism/love-jihad-laws-muslim-exclusion-ulterior-motive-hindutva, (Last visited on April 18, 2021).
[27]Yogi Adityanath’s ‘Love jihad’ crackdown: A reality Check, November 6, 2020 available at https://www.ndtv.com/video/news/reality-check/yogi-adityanath-s-love-jihad-crackdown-a-reality-check-565619 (Last visited on May 10, 2021).
[28]The Constitution of India, 1950, Art. 20(1).
[29]UP Police Reopens ‘Settled Matter’ to Register First Case Under Yogi’s New Anti-Conversion Law, November 29, 2020, available at: https://thewire.in/government/uttar-pradesh-anti-conversion-ordinance-first-case, (Last visited on April 18, 2020).
[30]Bentham, supra note 14, ⁋ XIII, 184.
[31]K.S. Puttaswamy v. Union of India, AIR 2017 SC 4161.
[32]Id., 144.
[33]Indian Penal Code, 1860, §366.
[34]Hindu Marriage Act, 1955, §11; Special Marriage Act, 1954, §4.
[35]Mohiuddin v. Khatijabibi, (1939) 41 Bom L.R. 1020, ⁋6.
[36]Jeremy Bentham & Louis Crompton, Offences Against One’s Self: Pederasty, Journal of Homosexuality, 3:4, 389, 392 (1978) available at http://www.columbia.edu/cu/lweb/eresources/exhibitions/sw25/bentham/, (Last visited on April 20, 2021).
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