Ed Note: This is Part I of a two-part series on the UP Anti-Conversion Ordinance.

PART-A

Introduction

Since the Governor of Uttar Pradesh has promulgated the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 (hereinafter the “Ordinance”), a lot of criticism has flown in for it. It has already been criticised on the grounds that it is overburdening and communal, prone to misuse by fringe elements and parents alike, is against the autonomy of women, and does not conform to the necessity requirement for an Ordinance under article 213 of the Indian Constitution, and therefore, is unconstitutional.

There has been the criticism that no statistic or data has been cited by the government warranting its ‘necessity’. Considering the extreme impact the Ordinance has on the lives of young boys and girls, the fact that there exists a statistical vacuum behind the Ordinance is even more shocking. This article aims to venture into that vacuum and look at relevant habeas corpus writ petitions filed before the Allahabad High Court (hereinafter the “Court” or “High Court”). Although habeas corpus writ petitions may not be an absolute indicator of ascertaining whether there is indeed a necessity for such an Ordinance or not, the authors believe that they might nevertheless speak volumes on the subject of coercion, misrepresentation, and the like. This is because— as the authors found— while ascertaining the legality of detention, the High Court, as a matter of practice delves into the question of whether there was any question of misrepresentation/coercion in the marriage or not. This ascertainment directly impacts the Ordinance’s presumption of malice in interfaith marriages.

Between the years 2010 and 2019, a total of 602 habeas corpus petitions filed before the Allahabad High Court were reported on SCC Online. Out of these, we found 205 judgements which form the sample space for this study. Each of these cases involved a young girl and a boy, whose courtship/relationship/marriage was disapproved by either the parents of the girl, the parents of the boy, or both.

These petitions, the authors observed, were the result of either of these two scenarios:

1. The writ petition is filed by the family of the girl: this happens when the wife marries against the wishes of the family, and the family claims that their daughter had been detained illegally by the husband.
2. The writ petition is filed by either the husband or the wife: this happens when the wife goes back to her parental home and her family detains her against her wishes. The petitioner here claims that the detention by the family members is illegal.

We carefully analyse this data to look at the distribution and/or pattern of the cases of interfaith marriages/courtships.

Based on this analysis, we argue that the concept of ‘Love Jihad’ that the Ordinance relies on, is in fact nothing more than a myth. And since there is nothing such as ‘Love Jihad’ in reality, the law is unnecessary and must be struck down.

Further, our data also reveals if the ‘will’ of the girl is, in fact, free or not: whether the girl is being ‘coerced’, ‘allured’, ‘disillusioned’ or not? In these cases, the Court’s rulings help us determine whether parental intervention was, in fact, held to be legitimate or not.^[1] The ratio of the number of cases where parental intervention was held to be legitimate to the number of cases where it was held to be illegitimate shall help us make our second argument against the necessity of the Ordinance. We argue that we have a demonstrated history of illegitimate parental intervention in matters of marriage. In such circumstances, section 4 of the Ordinance which provides for blood relatives to be able to register an FIR and thereby initiate criminal proceedings, will result in unnecessary litigation. It will also heavily (and wrongfully) affect the personal liberties of a lot of young boys and girls.

Further, we note that the Ordinance makes an extreme departure from the general principle of criminal law by inserting a reverse onus clause. This, combined with the tendency of illegitimate parental intervention, as argued in the second argument, will facilitate wrongful incarceration of a number of young couples.

In light of the previous argument and statistics, we conclude by arguing that the law, besides being unnecessary, is also unreasonable, disproportionate and extremely dangerous.

Sorry, Love Jihad? Who’s converting whom?

The Ordinance was brought in to curb the menace of “Love Jihad”.^[2] This can be inferred from the remarks of the Chief Minister, Mr. Yogi Adityanath. This idea of ‘Love Jihad’ is one that apparently poses a threat to the public welfare. It survives on the idea that there exists a ‘Muslim conspiracy’ to lure Hindu girls into converting them into Islam and marrying them. In this part of this article, we contend that there exists no real danger; that ‘Love Jihad’ is a myth.

Before moving on to establish this argument through the data gathered from our empirical study, it would be worthwhile to note that shortly before the passing of the Ordinance, a report submitted by the Kanpur Special Investigation Team denied any ‘Muslim conspiracy’ to lure Hindu girls into converting into Islam and marrying them. In fact, early last year, the Ministry of Home Affairs too submitted before the Parliament that no case of ‘Love Jihad’ has been reported by any central agency.

Now, to further rebut the myth of Love Jihad, we studied writ petitions of habeas corpus filed before the Allahabad High Court involving inter-faith marriages. Out of the database of 205 cases, it was found that only 21 involved interfaith marriages.

Before we dwell on scrutinising our data, we may note that out of the 205 cases, we found 5 cases where it could not be positively ascertained if a conversion had indeed taken place or not. Further, we also found 2 such cases where marriage had not actually taken place, and the couple had just started living with each other.

The first inference that we may make from this data is that the number of interfaith marriages is merely 21 out of 205 (or only 10.2% of the total marriage cases). This number is inclusive even of cases where a Hindu boy converts a Muslim girl into Hinduism and marries her. Had the claim that there is a sinister ‘Muslim conspiracy’ to convert Hindu girls fraudulently been true, there would have been a large number of interfaith cases coming before the High Court as habeas corpus writ petitions. However, as is sufficiently clear from the data, this has not been the case.

Further, to completely and wholly dispel the myth of ‘Love Jihad’, we sharpened our data to examine the ‘direction of conversion’, or in other words— who is converting whom?

Looking exclusively at cases of inter-faith marriages coming before the Allahabad High Court as habeas corpus writ petitions, we identified four possibilities:

1. Muslim Boy converting Hindu Girl
2. Hindu Boy converting Muslim Girl
3. Muslim Girl converting Hindu Boy
4. Hindu Girl converting Muslim Boy

Note: Out of the 21 cases of interfaith marriages that were studied, the judgements of 5 of them were ambiguous in the sense that the direction of conversion could not be positively ascertained from them.

Now, again, had there been a ‘Muslim conspiracy’ to convert Hindu girls fraudulently, there would have been an overwhelming number of P(A). However, as we can see, this has not been the case:

From a bare perusal of this data, it is evident that contrary to the fears expressed by the Chief Minister which culminated in the Ordinance, the cases involving P(A) are only 42.9% (9 out of 21) in number. In fact, the opposite case, where a Hindu Boy converts a Muslim Girl, P(B), are 28.6% (6 out of 21). P(D), where a Hindu Girl converts a Muslim Boy, is 4.8% (1 out of 21).

In fact, to counter the ‘Muslim conspiracy’ claim, if we look at total conversions from the Muslim faith to the Hindu faith [P(B) + P(D)], we find that the number adds up to 7 out of 21 (or 33.33%), whereas there were no cases where a Muslim Girl converts a Hindu Boy, stagnating the number of conversions from the Hindu faith to the Muslim faith at the same 9 out of 21 (42.9%).

Thus, it would be safe to observe here that statistical data goes very much against the myth of ‘Love Jihad’. Therefore, it is the authors’ contention that since there exists no Love Jihad, there exists no sound necessity for the Ordinance.

The list of all 205 cases analysed can be found here.

^[1] This paper understands ‘legitimacy’ as being granted by the final decision of the Hon’ble High Court, recognising the contention of either of the parties (petitioners or the respondents) as valid.

^[2] Although no proper definition of ‘Love Jihad’ has been given, it has been commonly referred to as “love between a Hindu woman and a Muslim man which, as a transgression of communal boundaries, is alleged to be a conspiracy to convert Hindu women.” See Sarkar, T. (2018) ‘Special Guest Contribution: Is Love without Borders Possible?’, Feminist Review, 119(1), pp. 7–19. doi: 10.1057/s41305-018-0120-0.