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Love Jihad

What is Love Jihad?
Love Jihad or Romeo Jihad is an Islam phobic conspiracy theory alleging that Muslim men target women belonging to non-Muslim communities for conversion to Islam by feigning love. Love jihad is an idea that crudely but effectively argues that Muslim men are waging jihad in India through love marriages. The young men apparently waging war through love — through the capture of innocent Hindu women — are also referred to as love Romeos. Love 'Jihad' is an unofficial term used by radical Hindu groups for referring to an alleged campaign by Muslim men to convert Hindu girls under the pretext of love.

Important Judgement must to be remembered:
  • Once a person becomes a major he or she can marry whosoever he/she likes. [Lata Singh Union of India, (2006) 5 SCC 475]
  • An inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage. [Indian Woman Says Gang-Raped on Orders of Village Court, In re, (2014) 4 SCC 786]
  • Choice of woman in choosing her partner in life is a legitimate constitutional right. It is founded on individual choice that is recognized in the Constitution under Article 19. [Asha Ranjan v. State of Bihar, (2017) 4 SCC 786]
  • The consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock…..it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution. [Shakti Vahini Union of India, (2018) 7 SCC 192]
  • Neither the State nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters…. Social approval for intimate personal decisions is not the basis for recognising them. [Shafin Jahan Asokan K.M., (2018) 16 SCC 368]
  • Privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination……. privacy is one of the most important rights to be protected both against State and non-State actors and be recognized as a fundamental right. [K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1]

History of Love Jihad
Allegations of Love Jihad first rose to national awareness in September 2009. Love Jihad was initially alleged to be conducted in Kerala and Mangalore in the coastal Karnataka region. According to the Kerala Catholic Bishops Council, by October 2009 up to 4,500 girls in Kerala had been targeted. Ten years ago, the Hindu Janajagruti Samiti in Dakshina Kannada district of Karnataka claimed that 30,000 young women had been duped by love Romeos in the state.

The Kerala High Court ordered an inquiry in 2010, while the Karnataka High Court, in the same year, stated that a case involving a 23-year-old woman who had converted to Islam to marry a Muslim man had national ramifications. Indeed, the Karnataka HC went egregiously further, ordering the woman be restored to her parents while the police investigated the case. On its part, the Kerala police found no evidence of love jihad and no organization named Romeo Jihad that was executing this.

The Karnataka police clarified that 404 girls were missing during the period and that they had been able to trace 332 of them. The majority were Hindu girls who had eloped to marry Hindu men, all of them breaking caste barriers to their marriages.

Hadiya Marriage Case {Shafin Jahan v. Ashokan K.M.}
Case Description:
The Court assessed the allegation that Hadiya was deceived into marrying her husband Mr. Shafin Jahan and forcibly converted to Islam. The Court found that the allegation, which was made by her parents, was clearly false.

Background:
On 9th April 2018, the Supreme Court delivered its judgment. There were two separate opinions:
  • Chief Justice Dipak Misra's majority opinion on behalf of himself and AM Khanwilkar.
  • Justice DY Chandrachud's concurring opinion.

Hadiya Jahan (originally Akhila Ashokan) converted to Islam during her medical studies in Coimbatore. She then met a Muslim man named Shafin Jahan and married him at the age of twenty-five.

When Akhila's father, Mr. K.M. Ashokan, found out about the marriage, he filed a Writ Petition in the Kerala High Court. He alleged that Hadiya had been misled and forced to become a Muslim. He also alleged that Akhila's husband had links to extremist Muslim organizations. Hadiya maintained throughout the High Court proceedings that her conversion to Islam as well as marriage to Shafin Jahan was of her own choice.

However, on 24th May 2017, High Court Justices Surendra Mohan Kuriakose and Abraham Mathew, annulled the marriage and called it a 'sham'. Their judgment observed that 'her [Hadiya's] marriage being the most important decision in her life can only be taken only with the active involvement of her parents'. The Justices granted Mr. Ashokan custody over Hadiya and ignored the fact that Hadiya, a legal adult, did not consent to parental custody.

Subsequently, Hadiya's husband approached the Supreme Court to challenge the annulment. On 8th March 2018, the three-judge bench of Supreme Court set aside the annulment. On 9th April 2018, it delivered the judgment, holding that the Kerala High Court could not have used Article 226 to annul the marriage of an adult.

The Bench was initially headed by Chief Justice Khehar, who took the extraordinary step of ordering the National Investigation Agency (NIA) to investigate Hadiya's marriage. CJI Khehar retired during the hearing on 27th August. Chief Justice Misra took over from him. CJI Misra, perhaps recognizing the problematic nature of the NIA investigation, never called for the NIA to present its report during the hearings. Furthermore, the NIA investigation finds no mention in the Court's judgement.

Summary of the judgment:
The High Court wrongly exercised its Habeas Corpus jurisdiction
The writ of habeas corpus is 'a great constitutional privilege' or 'the first security of civil liberty'. It is a remedy against illegal detention, which affects the liberty and freedom of the detainee. Its purpose is to see that no one is under illegal confinement, deprived of liberty without the sanction of the law. In this case, the High Court misused the habeas corpus. When Hadiya appeared before the High Court, she stated that she was not under illegal confinement. The High Court has no power to decide the 'just' way of life or 'correct' course of living for Hadiya. She has absolute autonomy over her person.

Moreover, in Hadiya's case, the High Court was guided by social considerations. It was wrong and unnecessary to go into aspects of social radicalization in a writ of habeas corpus. It is the job of the law enforcement agencies to look into aspects of criminality. The Court should only look at whether the person has been detained without lawful authority. Further, the argument that Mr. Jahan would take Ms Hadiya out of the country was also unnecessary to examine for a habeas corpus case. Apprehensions of any future activity must be governed and controlled by the State.

The High Court wrongly invoked the parens patriae jurisdiction
Parens patriae is the power of the State to intervene against an abusive or negligent parent or guardian. The State acts as the parent of such an individual. The courts can invoke this role only in exceptional cases where the individual is either mentally incompetent, or underage, or has either no parent/legal guardian or has an abusive one. Ms Hadiya is neither mentally incapacitated nor vulnerable. She equivocally expressed her choice, and the right to choose is a constitutionally guaranteed freedom and a facet of individual identity. It could not take precedence over social and moral values. A Constitutional Court must protect fundamental rights and thus could not reject Hadiya's choice.

The High Court transgressed on constitutional rights
Ms. Hadiya and Mr Shafin Jahan are adults, who decided to marry each other. Marital status is conferred through legislation or custom. The High Court was wrong in letting parental love and concern overrides the right of an adult to choose who she wishes to marry. Moreover, the Constitution guarantees that the ability to take such decisions is a part of liberty and individual autonomy. The right to marry a person of one's choice is integral to Article 21. Choice of a partner lies within the exclusive domain of an individual, and is a part of the core zone of privacy, which is inviolable. Thus, the High Court was wrong in using its powers under Article 226 to annul Hadiya's marriage with Shafin Jahan.

Shakti Vahini v. Union of India
On the 27th March,2018, the Supreme Court gave a landmark ruling in the Writ Petition (Civil) No.231 of 2010- Shakti Vahini v Union of India & Ors that any attempt by Khap Panchayats or any other assembly to scuttle or preventing two consenting adults from marrying is absolutely 'illegal' and laid down preventive, remedial and punitive measures in this regard. The court's judgment came on a petition filed by a non-government organisation (NGO) Shakti Vahini in 2010. The petitioner had sought directions to States and the Centre to put in place a plan to curb honor killings.

Current Scenario
In September 2020, Chief Minister Yogi Adityanath asked his government to come up with a strategy to prevent "religious conversions in the name of love" and even considered passing an ordinance for the same if needed.

The Governor of Uttar Pradesh, Anandiben Patel has promulgated the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020 (Uttar Pradesh Vidhi Viruddh Dharm Samparivartan Pratishedh Adhyadesh 2020).

The Uttar Pradesh Cabinet on Tuesday (24th November) gave its nod to the draft ordinance.

IMPORTANT PROVISIONS UNDER THIS ACT:
  1. The preamble to the Act Reads:
    To provide for prohibition of unlawful conversion from one religion to another by misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage and for the matters connected therewith or incidental thereto.
     
  2. Section 3 talks about Prohibition of conversion from one religion to another religion by misrepresentation, force, fraud, undue influence, coercion, allurement or marriage.
     
  3. Section 5 talks about Punishment for contravention of provision of Section 3. i.e. if any conversion is made due to any Allurement, Gift, Gratification, Easy Money, Material Benefit, Employment, Free education in reputed school or better lifestyle, divine displeasure or due to Coercion, Fraudulent means, then such a conversion shall be punishable under Section 5.
     
  4. Any aggrieved person, his parents, brother, sister, or any other person who is related to him by blood, marriage or adoption may lodge a complaint of such conversion which contravenes the provisions of section 3.
     
  5. The Ordinance also states that whoever contravenes the provisions of Section 3, shall, without prejudice to any civil liability, be punished with imprisonment for a term, which shall not be less than one year but which may extend to five years and shall also be liable to fine (not less than rupees 15,000).
     
  6. The Ordinance also provides that whoever contravenes the provisions Law in respect of a minor, a woman or a person belonging to the Scheduled Caste or Scheduled Tribe shall be punished with imprisonment for a term which shall not be less than two years but which may extend to seven years and shall also be liable to fine (not less than rupees 25,000).
     
  7. Mass Conversion:
    The Ordinance provides that whoever is found indulged in mass conversion (while contravening the provisions of law), shall be punished with imprisonment which shall not be less than three years but which may extend to 10 years and shall also be liable to fine which shall not be less than 50,000.
     
  8. Further, the Court can direct the Accused to pay as compensation (up to rupees 5 lakh) to the Victim of such Religious Conversion.
     
  9. Section 6:
    If any marriage is done for the sole purpose of unlawful conversion or vice versa, by the man of one religion with the woman of another religion either by converting himself before or after marriage or by converting the woman before or after marriage may be declared void by the family Court or where family Court is not established, the Court having jurisdiction to try such case on a petition presented by either party thereto against the other party of the marriage.

    The proviso to this Section states that all the provisions of sections 8 and 9 shall apply to such marriages.

    Desire to convert religion voluntarily - One who desires to convert his religion voluntary, he/she shall give a declaration in the form prescribed in Schedule I at least 60 days in advance, to the District Magistrate. It has to be clearly stated in the form that the conversion is being done out of free will and that the person wishes to convert his religion without force, undue influence, coercion, allurement, Failure to do so will invite imprisonment for a term which shall not be less than six months, but may extend to 3 years and shall also be liable to fine.
     
  10. Section 7 makes unlawful religious conversion a non-bailable and cognizable offence.
     
  11. Section 8 says that the DM will have to satisfy himself/herself that the Conversion is made voluntarily, if the permission is granted, then the concerned Priest, Pujari, Maulvi/Mulla, Padari shall inform the DM regarding the place and time of as to when he is going to convert a particular person. If he fails to inform the DM about the proposed Conversion, he shall also be liable to punishment.
     
  12. Declaration of Conversion of Marriage:
    Once converted, the person is required to send a declaration in the form prescribed in the Ordinance to the District Magistrate of the District in which converted person resides ordinarily within 60 days of such conversion and has to physically present himself before the District Magistrate within 21 days.
     
  13. Section 9 says that he/she has to state that he belonged to a particular religion and now he/she has converted to another religion. Failure to do so shall have the effect of rendering the said conversion illegal and void.
     
  14. Section 10 states that the State Government shall not provide any financial aid or grant to such institution or organization violating the provisions of this Act.
     
  15. Section 11 talks about Parties to Offence.
     
  16. Section 12 talks about Burden of Proof i.e. The burden of proof as to whether a religious conversion was not effected through misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage lies on the person who has caused the conversion and, where such conversion has been facilitated by any person, on such other person.
     
  17.  Schedules:
    1. Intimation regarding intended conversion from one religion to another (Schedule 1).
    2. Notice by the religious priest regarding intended conversion from one religion to another (Schedule 2).
    3. Intimation regarding conversion from one religion to another (Schedule 3).

     
Recent Cases happened on Love Jihad
  1.  Recently, The Allahabad High Court stayed the arrest of a man booked by the UP Police under the recently promulgated Prohibition of Unlawful Conversion of Religion Ordinance, 2020. (Nadeem v. State of U.P. & Ors.)

    A Division Bench comprising of Justices Pankaj Naqvi and Vivek Agarwal has asked the UP Police to not take any coercive action against the accused, Nadeem, until the next date of hearing. The Court said:
    "Victim is admittedly an adult who understands her well-being. She as well as the petitioner have a fundamental right to privacy and being grown up adults who are aware of the consequences of their alleged relationship."

    The Court also observed that the issue of right to privacy has been held to depend on the exercise of autonomy and agency by individuals.

    Nadeem, represented by Senior Advocate SFA Naqvi, has submitted that the impugned ordinance is in conflict with the Court's latest pronouncement in Salamat Ansari & Ors. v. Union of India & Ors., whereby it was held that Right to live with a person of his/her choice irrespective of religion professed by them, is intrinsic to right to life and personal liberty.
     
  2. A Moradabad Court (Uttar Pradesh) has ordered the release of two brothers named Rashid & Salim (or Saleem) who were arrested earlier this month, under the newly promulgated Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020 (Love-jihad law).

    The Muslim man (Rashid) and his brother (Salim or Saleem) were arrested (on 5th December) soon after they visited the registrar's office in Moradabad to record Rashid's marriage to a Hindu woman, named Pinky (now Muskan Jahan) whose family filed a complaint.
     
  3. Recently, The Mumbai-based NGO Citizens for Justice and Peace (CJP) has filed public interest litigation (PIL) in the Supreme Court challenging the constitutional validity of the 'love jihad' laws passed by Uttar Pradesh and Uttarakhand
     
  4. The Act and the Ordinance allow for an unnecessary intrusion in the lives of people who have their autonomy compromised by the State, which is also somewhere resulting into violation of Right to Privacy that was introduced in the case of KS Puttaswamy v. Union of India.
     
  5. The Allahabad High Court on Friday issued notices on a batch of PILs challenging the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020- promulgated by the UP Governor in November this year, to prohibit religious conversions in the name of 'love jihad'. (Ajit Singh Yadav v. State of U.P. & Ors.)

    A Bench comprising of Chief Justice Govind Mathur and Justice Piyush Agrawal has asked the UP Government to file a counter affidavit by January 4 and has fixed the case for hearing on January 7, 2020.

    The Bench refused to grant any interim relief in the form of stay order.

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