To Obstruct India’s Ongoing Muslim Genocide the Nation’s Courts Must Determine the Constitutionality of Right-Wing Love Jihad Laws
Muslims in India, the world’s largest democracy and second most populous nation, are currently facing a genocidal crisis. Constituting approximately 14 percent of India’s population, compared to the nation’s Hindu majority of 80 percent, Muslims living under the rule of India’s far-right, Hindu nationalist Bharatiya Janata Party (BJP), led by Prime Minister Narendra Modi, have become direct targets of government measures put in place to prevent a “demographic imbalance,” in which Hindus no longer make up a majority of India’s population. These measures include religious leaders calling for mass killings, attacks on Muslim-owned businesses, and a series of laws and policies that outrightly target and exclude Muslims from Indian society. [1] Of these measures, love jihad laws, which criminalize interfaith marriages and the voluntary conversion from Hinduism to Islam by Hindu women, have played a critical role in maintaining the nation’s Hindu majority and accelerating the ongoing Muslim genocide. [2]
Coined by radical Hindu extremists, the term “love jihad” refers to an Islamophobic right-wing conspiracy theory that attempts to paint marriage between Muslim men and Hindu women as an act to wage “jihad.” Through this perspective, interfaith marriages follow the same plot: the “vile Muslim man” seduces the “innocent, gullible Hindu woman” into a love marriage, all for the purpose of ensuring her conversion to Islam. [3] India’s Supreme Court recently ruled against this theory in Shafin Jahan v. Ashokan K.M. (2018), a case in which Mr. K.M. Ashokan, father of Hadiya Jahan, alleged that Shafin Jahan, Hadiya’s Muslim husband, forced her into marriage and religious conversion. The Court noted that no evidence was found for love jihad, and granted Hadiya, a formerly Hindu woman who converted to Islam, complete autonomy in her choice for marriage. [4]
Yet, such propaganda laws continue to be enacted in an effort to criminalize and prosecute India’s Muslims, as the country’s judicial system has failed to address the constitutionality of love jihad laws altogether. An analysis of the contradictions between legal precedent and government legislation reveals that any solution to Islamophobia in Indian jurisprudence begins with ruling love jihad laws unconstitutional. Love jihad laws not only violate the rights enshrined in India’s constitution, but they are also a critical force in maintaining India’s Muslim genocide.
In November 2020, politicians from India’s BJP, including Anandiben Patel, Governor of the state of Uttar Pradesh (UP), and Yogi Adityanath, UP’s Chief Minister, worked in tandem to enact The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance. A form of love jihad legislation, the Ordinance emplaces penalties, reaching as far as ten years in prison, for those found guilty of a love jihad offense or of conducting a marriage through “fraudulent means.” [5] More specifically, Section 5, Subsection 1 places a hefty fine of ₹25,000 and threatens two to ten years of imprisonment for love jihad offenses that target “a minor, a woman, or a person belonging to the Scheduled Caste or Scheduled Tribe.” [6] While at the surface Patel and Adityanath’s legislation seems to protect India’s most vulnerable, the use of “Scheduled Caste or Scheduled Tribe” clearly demonstrates the Ordinance’s Islamophobic intent; solely Hindus, Sikhs, and Buddhist Dalits are included in this denomination while Muslims and Christians are explicitly left out. [7]
The legislation also produces a scheme in which the love jihad conspiracy is set up to prevail, as men are consistently illustrated as perpetrators forcing women to convert, and rarely as victims facing Islamophobia. Thus, in alignment with love jihad’s logic of the role men and women play in fraudulent marriages, men facing these punishments are inevitably more likely to be Muslim. This Islamophobia, in particular toward Muslim men, is further compounded by Section 12 of the Ordinance, which places the burden of proof—or in this context, the need to prove the marriage is not fraudulent—on the alleged perpetrator. [8] Simply put, Muslim men find themselves up against an unjust, heavily biased system. They must defend themselves, their marriages, and their religion when both the law and its underlying conspiracy are not built to believe Muslims in the first place. The implications outlined above are not merely hypotheticals, as the Ordinance was invoked in nearly forty-eight hours after its passage, and thirty-four individuals were arrested for love jihad-related crimes within the span of a month. [9]
Alongside the fact that the legislation is deeply rooted in Islamophobic conspiracy, it also clearly violates constitutional provisions. For example, Section 4 of the Ordinance violates a citizen’s right to personal autonomy which is granted in Article 21 of the Indian Constitution. [10] Section 4 permits anyone related to the victim, by adoption, blood, or marriage, to inform law enforcement of the situation by filing a First Information Report regarding the religious conversion. [11] This is particularly concerning, for it allows an outsider to intervene within the marriage, producing a slippery slope in which those engaging in socially and politically “unacceptable” marriages, such as interfaith marriages between Muslims and Hindus, are more at risk of being deprived of their right to personal autonomy in the context of marriage. Although Section 4 could be used as an avenue to relieve victims of forced marriages, it is a product of inherently discriminatory legislation that acts as a loophole, enabling law enforcement to more easily break up interfaith marriages and ultimately assist in maintaining the Muslim genocide. [12]
Indeed, the danger of this type of outside interference is exemplified in Shafin Jahan v. Ashokan K.M., a case in which the Supreme Court reversed a ruling in favor of love jihad issued by the High Court of the state of Kerala. Prior to the Supreme Court decision, the Kerala High Court annulled the marriage between Hadiya Jahan—a recent Muslim convert—and appellant Shafin Jafan, granting Ashokan K.M., Hadiya’s father, full custody of his adult daughter. Despite Hadiya’s firm assertion that she chose to convert to Islam and marry Jahan, Hadiya’s father claimed that she was forced into the marriage, and alleged that Jahan had links to terrorism. [13] Confronted with a clear case of Islamophobia underpinning love jihad, the Supreme Court held that the Kerala High Court had no legal right to take such action. Hadiya, as an adult and Indian citizen, had the right, under Article 21 of the Constitution, to marry a person of her own choice. The case presented an incomprehensible question to India’s courts: by refusing to accept his daughter’s choice, Hadiya’s father effectively asked the Court, which is bound by the Constitution to protect her right to make an autonomous decision, to undermine this right in service of an Islamophobic agenda. [14]
Moreover, permitting intervention in the context of marriage also contradicts the right to privacy enshrined in Article 21. [15] In Justice K.S. Puttaswamy & Anr. v. Union of India (2017), India’s Supreme Court set a precedent by recognizing the right to privacy as fundamental to Article 21, subsequent to an earlier 2012 challenge of the Aadhaar Act’s constitutionality and a 2015 order to reexamine the decisions of M.P. Sharma & Ors. v. Satish Chandra and Ors. (1954) and Kharak Singh v. State of Uttar Pradesh (1964). [16] A catalyst for this precedent, the Aadhaar Act provides twelve-digit identification numbers to all legal Indian residents contingent on the submission of biometric data, such as the scan of retinas and fingerprints, for storage in a database. [17] Although the Act relates to privacy rights in the realm of personal biological information, the ruling carries weight in the debate about love jihad’s constitutionality: autonomous decision-making, such as the liberty to personally choose who one wishes to marry, is a fundamental facet of privacy.
At the same time, by distinctly labeling interfaith marriages as “forced” or “fraudulent” and intrafaith marriages as “genuine,” the Ordinance undermines the constitutional right, granted by the Court in Shakti Vahini vs. Union of India (2018), of women and couples to legally engage in interfaith marriages without interference. [18] In Shakti Vahini v. Union of India, a case rooted in a debate about consent and the legality of honor killings due to family disapproval of one’s choice for marriage, the Court held that two consenting adults are the only parties required of consent to get married, and thus, family interference is illegal. [19] Yet, in questioning the sincerity of one’s choice to marry and ultimately limiting free will, the Ordinance disproportionately discriminates not only against Muslims, but Indian women at large. All the while, Article 15 of India’s Constitution bars discrimination on the basis of religion, caste, sex, or place of birth. [20] More specifically, Shakti Vahini v. Union of India makes clear what the Ordinance does not: discrimination (of Muslims and women) lies in the principle of consent. The law does not consider women and Muslims to be “consenting individuals,” as only individuals who reiterate the love jihad narrative are believed. This reality is exemplified by avenues in the law that easily allow for interference if an outsider slightly disagrees. Although this example places consent within the context of marriage, it remains a force behind Muslim genocide as the narrative around who is believed in Indian society openly excludes Muslims.
In addition to discrimination through consent, the Ordinance also infringes on one’s right, specifically a woman’s right, to live life with dignity as protected in Charu Khurana and Others v. Union of India and Others (2014). [21] After female make-up artist Khurana was rejected from Mumbai’s Cine Costume Make-Up Artists and Hairdressers Association on the basis of sex due to its by-laws prohibiting women, the Court held that the Association’s by-laws were sexist, violating Article 15 of the Constitution, and that dignity is critical to one’s humanity as gender justice is integral to India’s Constitution. [22] This also follows the precedent set from decades prior in Francis Coralie Mullin v. The Administrator (1981) in which Mullin was detained in Delhi’s Tihar Prison Complex and, unlike other prisoners, faced difficulty contacting a lawyer, and was only permitted to meet with her family once a month. [23] Ultimately, the Court ruled that Mullin’s unequal regulation violated her right to equality under the law granted by Articles 14 and 15, her right to liberty under Article 21, and her right to life, including her right to live life with human dignity. [24] These rights are undermined by the Ordinance, which targets women, specifically those who wish to marry Muslim men and eventually convert to Islam. It effectively nullifies the right of women to choose their partners and practice religion, thereby encroaching on their right to dignity.
Currently, love jihad-related cases continue to take up space on dockets across India’s court system. Most recently, for example, Citizens for Justice and Peace, a Muslim-based NGO, filed a Public Interest Litigation to challenge the constitutionality of India’s love jihad laws, including the Ordinance and the Uttarakhand Freedom of Religion Act of 2018. As of November 2022, India’s Supreme Court has agreed to hear these pleas challenging love jihad. [25] These cases, in which courts are forced to move beyond situation-dependent love jihad analysis and determine overall constitutionality, offer a starting solution for obstructing India’s ongoing Muslim genocide. Determining constitutionality, as I have begun to do so above, gets to the root of the Islamophobic love-jihad laws and helps legally prevent their initial production and passage. These laws have created an Indian society that contradicts the principles and values outlined in India’s Constitution. By explicitly refusing to protect Muslims and violating their rights to dignity, liberty, privacy, and equality under the law, love jihad places Muslims as second-class citizens subject to genocide with seemingly no end. Muslims in India are dying, suffering, and losing grip on their right to life, but India’s Courts can be the place to save them. For now, however, to be Muslim in India presents a legal battle that is predetermined and riddled with Islamophobic conspiracy and violence.
Edited by Tal Dimenstein
Sources:
[1] Al Jazeera and News Agencies, “Expert Warns of Impending ‘Genocide’ of Muslims in India,” Al Jazeera, January 16, 2022,
https://www.aljazeera.com/news/2022/1/16/expert-warns-of-possible-genocide-against-muslims-in-india.
[2] Shashwata Sahu, “Love Jihad,” Legal Service India, https://www.legalserviceindia.com/legal/article-6611-love-jihad.html.
[3] Md. Zeeshan Ahmad and Zain Haider, “The Politics of Love Jihad and its Constitutional Validity,” The Leaflet, February 1, 2021, https://theleaflet.in/the-politics-of-love-jihad-and-its-constitutional-validity/.
[4] Shafin Jahan v. Ashokan K.M., (2018) 16 SCC 409 (India).
[5] Omar Rashid, “U.P. Governor Promulgates Ordinance on Unlawful Conversion,” The Hindu, November 28, 2020, https://www.thehindu.com/news/national/other-states/up-governor-gives-assent-to-ordinance-on-unlawful-conversion/article33198888.ece.
[6] The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, §5(1) (November 24, 2020).
[7] Anubhuti Vishnoi, “Centre Mulls Panel to Explore Scheduled Caste Benefits for Muslims, Christian Dalits,” The Economic Times, January 25, 2022, https://economictimes.indiatimes.com/news/india/centre-mulls-panel-to-explore-scheduled-caste-benefits-for-muslim-christian-dalits/articleshow/89104198.cms?from=mdr.
[8] The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, §12 (November 24, 2020).
[9] Omar Rashid, “11 FIR’s Under U.P. Ordinance So Far,” The Hindu, December 21, 2020, https://www.thehindu.com/news/national/other-states/11-firs-under-up-ordinance-so-far/article33380361.ece.
[10] Sahu, “Love Jihad,” Legal Service India.
[11] The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, §4 (November 24, 2020).
[12] India Const. art. 21.
[13] Shafin Jahan v. Ashokan K.M., (2018) 16 SCC 409 (India).
[14] Shafin Jahan v. Ashokan K.M., (2018) 16 SCC 409 (India).
[15] India Const. art. 21.
[16] Justice K.S. Puttaswamy & Anr. v. Union of India, (2017) 10 SCC 1.
[17] The Aadhaar Act, 2016, §3.
[18] Sahu, “Love Jihad,” Legal Service India.
[19] Shakti Vahini v. Union of India, (2018) 7 SCC 192.
[20] India Const. art. 15, cl. 1.
[21] Sahu, “Love Jihad,” Legal Service India.
[22] Charu Khurana and others v. Union of India, (2015) 1 SCC 192.
[23] Sahu, “Love Jihad,” Legal Service India.
[24] Francis Coralie Mullin v. The Administrator, (1981) 2 SCR 516 (India).
[25] Nakshab Khan, “Supreme Court to Hear Pleas Challenging Religious Conversion Laws by Some States in the Name of ‘Love Jihad’,” Citizens for Justice and Peace, November 24, 2022, https://cjp.org.in/supreme-court-to-hear-pleas-challenging-religious-conversion-laws-by-some-states-in-the-name-of-love-jihad/.