The season of ‘love jihad’ is back. It never really goes away but resurfaces — every time with more frequency and vitriol — after periods of hibernation. ‘Love jihad’ emerged from Rashtriya Swayamsevak Sangh (RSS) laboratories in Kerala but only found its voice and a scope for destruction in the north under the gaze of Uttar Pradesh Chief Minister Yogi Adityanath . But following him closely in this latest season are ministers from Madhya Pradesh , Haryana , Karnataka , and Assam.
The U.P. Chief Minister had, in the past, toyed with anti-Romeo squads employing a similar rhetoric of ‘saving’ women from the unwelcome gaze of men but ‘love jihad’ additionally offers endless possibilities where anti-Muslim rhetoric is concerned. Mr. Adityanath is by no means alone. Bharatiya Janata Party leaders across the country are agonising about daughters and sisters who are apparently defenceless against ‘sensuous’ Muslim men, although these women may not care for such filial connections.
Rhetoric of shame and pity
The campaign builds on the ground prepared by the formerly potent khap panchayats , which had popularised that idea that women who seek consensual relationships must have been lured, tricked or duped. The only other alternative, in the eyes of influential khap leaders like Mahendra Tikait, was lack of shame since “only whores choose their partners.” ‘Love jihad’ weaponises this toxic rhetoric of shame and pity for women who seek to exercise their constitutionally guaranteed rights but also brings RSS’s years of experience and dedicated cadre into the picture. Unlike khap panchayats which were seen by the mainstream as localised power centres representing a distant, barbaric and medieval India, the anti-‘love jihad’ campaign is actually mainstream.
However, those eager to punish men who enter perfectly legal and consensual relationships might be getting short-changed by forthcoming laws. According to Justice (Retired) Aditya Nath Mittal, Chairperson of the U.P. State Law Commission, his 2019 report that proposes a regulation on religious conversions does not mention ‘love jihad’ nor restricts the scope of conversions to just Hindu-Muslim relationships. In an interview with The Hindu , Justice Mittal admitted that the scope is purposefully broad since a limited scope legislation will not stand in law. Haryana and Madhya Pradesh, meanwhile, are taking cues from Himachal Pradesh, the only State with an existing law that ostensibly curbs ‘love jihad’. This Freedom of Religion Act also does not refer to any religion in particular. It mandates, however, that those who wish to convert notify the district authorities at least one month in advance.
As recent Allahabad High Court judgments show, the curtailment of marriages that follow conversions may not be restricted to the conversion of Hindu women. What is clear, however, is that courts also appear very concerned about the faith of women who choose to convert in order to marry a loved one. The High Court posed the following question as part of a 2014 judgment, Noor Jahan Begum v. State of U.P. , that considered the affidavits of five couples who sought protection after consensual marriages: “Whether conversion of religion of a Hindu girl at the instance of a Muslim boy, without any knowledge of Islam or faith and belief in Islam and merely for the purpose of Marriage (Nikah) is valid?”
Also read | Won’t interfere in personal relations, says Allahabad High Court
Although Justice Surya Prakash Kesarwani admitted that it is difficult if not impossible to define or delimit the expression of religion, he held that it is a matter of personal faith, one that must stem from “the depth of the heart and mind”. Justice Kesarwani was ostensibly privy to the ‘depths of the hearts and minds’ of not one but five women whose fates he ruled on that day. What is significant is that Justice Kesarwani had, as part of this order, dismissed petitions for protection and non-interference in married life and not pleas that sought a court statement on the validity of marriages. Whether the existing laws and the ones State governments claim they will legislate hold such marriages null and void does not automatically strip women of their right to co-habit with men they love.
A question judges and State governments may well ask at this point is not ‘what is religion’ but rather, ‘what is marriage’? In Salamat Ansari v. State of U.P. , the High Court addressed this aspect while also critiquing its own past judgments as “not laying good law” since the task before the court was simply to ascertain “the wish and desire of the girls”. Justices Pankaj Naqvi and Vivek Agarwal remarked that they do not see the petitioners as Hindu and Muslim, “rather as two grown-up individuals who out of their own free will and choice are living together peacefully and happily over a year.”
Also read | U.P. Cabinet clears ordinance against ‘love jihad’
Facilitating marriages
If conversion is used as a convenient means to marry a partner who belongs to a different faith, the primary offender here may well be State governments and bureaucracies. While bureaucracies make the procedures for solemnising marriages under the Special Marriage Act difficult for both inter-faith and intra-faith couples, governments at times step in to further complicate the process. In 2018, when Justice Rajiv Narain Raina struck down the Haryana government’s ‘court marriage checklist’, he urged the state to facilitate rather than obstruct marriages. He said: “The State is not concerned with the marriage itself but with the procedure it adopts, which must reflect the mind-set of the changed times in a secular nation promoting inter-religion marriages instead of the officialdom raising eyebrows and laying snares and land mines beneath the sacrosanct feet of the Special Marriage Act …” Justice Raina said that India is a secular nation as if in a direct, defiant response to campaigns such as ‘love jihad’ and ruled that the state’s role in marriage does not pertain to its validity.
Ultimately, whether the laws are broad in scope or not may be relevant in individual courts and for individual judges but, constitutionally, it is still not the state’s mandate to decide which relationships are acceptable and permissible. Transforming this reality may well be the endgame.
Courting Desire: Litigating for Love in North India
