7 Jan 2023 9:33 AM GMT
The myth of ‘love jihad’, slayed repeatedly and supposedly laid to rest, rises yet again. A hydra-headed monster that’s revived time and again by a not-so-subtle conspiracy between Hindutva forces, the executive, and the judiciary, it is making yet another come back at the close of 2022.This time its a multi-pronged effort, starting in March with a new anti-conversion law in...
The myth of ‘love jihad’, slayed repeatedly and supposedly laid to rest, rises yet again.
A hydra-headed monster that’s revived time and again by a not-so-subtle conspiracy between Hindutva forces, the executive, and the judiciary, it is making yet another come back at the close of 2022.
This time its a multi-pronged effort, starting in March with a new anti-conversion law in Haryana, followed by Karnataka on September 30 with its Protection of Freedom of Religion Act, 2022, and wrapping up the year with the Uttarakhand governor’s assent to making the draconian Uttarakhand Freedom of Religion Act, 2018 even more stringent, the Maharashtra Cabinet’s notification to snoop on interfaith marriages and relationships, and the Supreme Court eagerly trying to wade in on the wings of a fourth-attempt petition by a serial litigator from the BJP.
Currently the tally of states with ‘love jihad’ laws is 11, but keeping count is becoming difficult.
Some, like Himachal in 2019 and Gujarat and Madhya Pradesh in 2021, have enacted stringent new replacements for their old ‘Freedom of Religion’ Acts, aimed especially at preventing Hindu women from marrying outside the faith.
Orissa (1967), Chhattisgarh (1968), Arunachal Pradesh (1978) and Jharkhand (2017) have statutes to control religious conversions, but those Acts do not enter the private sphere of marriage.
The newcomers to the party, Uttarakhand (2018), Uttar Pradesh (2020), Karnataka (2021), and Haryana (2022) unabashedly made laws with the avowed purpose of fighting what they described as a “growing trend of love jihad.”
And of course, there are other BJP-ruled states like Maharashtra, testing the waters with a notification to pry and snoop and unleash the police force on hapless young people wanting to marry outside their faith, and extending this intrusion to “relationships” also.
This spate of legislation is sought to be justified on grounds of allegedly increasing, or even rampant, instances of Muslim men marrying Hindu women.
The Statement of Objects and Reasons accompanying the Uttarakhand Bill informed legislators that “there have been umpteen cases of religious conversions, both mass and individual”.
It also stated that
“…[W]ith an agenda to increase strength of their own religion by getting people from other religions converted to their own religion, people do marry girls of other religion by misrepresentation of their own religion…”
It further said:
“Several instances came in notice that people convert themselves to the other religion only for the purpose of marriage with the girl of that religion and after marriage they got that girl converted into their own religion”.
Based on these ‘instances,’ the Uttarakhand legislature made a law that not only criminalises love and inverts the burden to proof, but even allows interfaith marriages to be declared null and void if they result in conversion before or after the marriage. These sentiments were echoed by sundry chief ministers and others while introducing similar Bills in other states.
These alarmist, often incendiary, allegations of ‘love jihad’ have been a prelude to each one of the recent anti-conversion laws, but in no case have any actual facts, figures, or statistics been cited.
It therefore needs to be seen whether there is, or ever has been, any real evidence to support these claims.
The phrase ‘love jihad’ was coined in 2009 at the Catholic Bishops Council in Kerala, when a Bishop claimed without evidence that a large number of Catholic girls were being lured into marriage by Muslim boys. But it gained currency due to two unconnected cases in the Kerala and Karnataka high courts, each arising from police complaints filed by the fathers of girls who claimed that their daughters had been kidnapped and then forced to marry Muslim youths.
Dealing with a plea for anticipatory bail by two Muslim boys, Shahan Sha and Sirajuddin, accused of converting and then marrying a Christian and a Hindu girl, Justice K.T. Sankaran of the Kerala high court passed a lengthy order on September 29, 2009, rejecting bail on grounds that it was, “Well known that there was a movement known as Love Jihad or Romeo Jihad.”
He directed the DGP of Kerala to file an affidavit answering eight questions on whether such movements existed, which organisations in India and abroad were involved, how the movement is funded, whether it has an all-India basis, how many students had been converted to Islam in the past three years, and whether there is any connection between ‘the love jihad movement’ and counterfeiting, smuggling, drug trafficking and terrorist activities.
Having denied the boys anticipatory bail, the judge directed that copies of his order be served on the Additional Solicitor General of India as well as the Secretary, Union home ministry, with directions to file an immediate response.
Almost simultaneously, on October 21, 2009, a bench of the Karnataka high court passed an interim order on a habeas corpus petition filed by C. Selvaraj, alleging that his daughter Silja Raj had been abducted by a Muslim boy and taken from Chamrajnagar to Kerala to study Islam at a madrassa, convert, and get married. Though Silja Raj appeared and informed the court that she had converted and married of her own free will, the division bench set up a Special Investigation Team supervised by the DGP of Karnataka to investigate “the larger conspiracy of the love jihad movement”, and directed Silja Raj to stay with her parents until the SIT made its report to the court.
The interim SIT report filed on November 13, 2009, disclosed that 24 CID teams sent to all districts of Karnataka to examine all cases of missing girls, had found no evidence of a ‘love jihad’ movement, and found that there was no ‘love jihad angle’ to Silja’s conversion and marriage with Akshar. Justices K. Sreedhar Rao and Ravi Malimath thus reunited Silja with her husband, and directed that she was free to go wherever she pleased.
The final SIT report filed by Karnataka’s DGP, D.V. Guruprasad, on December 31, 2009, disclosed that the CID had investigated 21,890 cases of girls reported missing between 2005 and 2009, and found that only 229 of them had married men of other faiths, and that conversion had taken place in only 63 out of these 229 cases. Of these 229 interfaith marriages, 149 Hindu girls married Muslim boys, 38 Muslim girls and 20 Christian girls married Hindu boys, 10 Hindu girls married Christian boys, 11 Christian girls married Muslim boys, and one Muslim girl married a Christian boy.
More importantly, the DGP stated in his report that there was no organised attempt or movement to entice girls or women into marrying Muslims with a view to converting them to Islam.
The Karnataka high court accepted this report after hearing the government advocate on November 6, 2013, and recording in its order:
“According to the Government Advocate, there are no incidents of love jihad in the State of Karnataka”.
In Kerala, meanwhile, Justice K.T. Sankaran was not ready to let go of the conspiracy theory he had floated.
Kerala’s DGP, Jacob Punnose, had filed a detailed affidavit on October 18, 2009, based on 14 reports by each of the District Superintendents of Police, and four reports by the heads of state CID, police intelligence, the Special Cell, and Crime Branch.
All eight questions posed by the hudge on September 29, 2009, were answered in the negative, making it clear that there was no organised activity or conspiracy, and that the only case in Kerala where such an allegation was levelled in the past three years, was the present one against Shahan Sha and Sirajuddin.
The DGP said that though no concrete instances existed, since some “source information” and “allegations” had been received, the intelligence cell would continue to keep a vigil on all schools and colleges, and would deal strictly with any instances that came to light.
Despite this, Justice K.T. Sankaran refused to allow Shahan Sha and Sirajuddin to withdraw their anticipatory bail petition on October 26, 2009, instead directing the DGP to file all 18 reports in a sealed cover, and to explain why he was willing to close the case if there “source information” and “allegations” were in existence. He also directed the Union government to file an affidavit disclosing what action they proposed to take.
On November 9, 2009, Kerala’s DGP filed the 18 reports, and an affidavit explaining that “source information” and “allegations” were unsupported by any materials or evidence, and were therefore not proof of any criminal activity or organisation, despite which the intelligence cell had been tasked with continuous vigilance and investigation of the allegations.
The Union home ministry also filed its affidavit on December 1, 2009, in which it declared that there was no ‘love jihad’ movement or organisation in existence.
Yet, ignoring all these affidavits, Justice Sankaran in his lengthy judgment dated December 9, 2009, proceeded to read and discard all 14 reports filed by the District SPs, and to rely instead on unnamed sources and anonymous allegations, and to hold in para 43 of his verbose judgment that, “It is clear that there is a concerted effort to convert girls belonging to particular religions to another religion. It is also clear that this is being done with the blessings of some outfits mentioned in the Report.”
After lecturing the government on its duty to protect citizens who were allegedly converted, he went on to hold that even where children have attained majority, their parents retained a say in their future and their career. He rejected the petitioners’ applications to withdraw their bail applications, and denied them anticipatory bail.
Fortunately for Shahan Sha and Sirajuddin, this judicial insanity was redressed just a week later, when Justice M. Shashidharan Nambiar found prima facie merit in their petition for quashing the criminal complaints against them, and granted stay of prosecution.
Nevertheless, in view of his brother judge’s observations, Justice Nambiar called for detailed reports from the District Judges of Thiruvananthapuram and Ernakulam. A year later, after noting that reports by both District Judges found that there was no evidence of ‘love jihad’ or conspiracy to convert, and that no case prosecutable case existed against Shahan Sha and Sirajuddin, Justice Nambiar on December 10, 2010, quashed the FIRs and discharged both boys from the case.
Adding another dose of sanity from North India, a division bench of the Himachal Pradesh high court in its August 30, 2012, judgment in Evangelical Fellowship of India v. State, held that those provisions of the Himachal Pradesh Freedom of Religion Act, 2006 and Rules of 2007, which required persons wishing to convert to give prior intimations to the District Magistrate, and to face a prior police scrutiny, were grossly violative of the right to privacy.
Justice Deepak Gupta, speaking for a bench which included Justice Rajiv Sharma, struck down Section 4 of the HP Act as well as Rule 3 and part of Rule 5 of the Rules as violative of Article 14 and unconstitutional. Significantly, Justice Gupta noted in Para 41:
“No material has been placed on record by the State to show that there has been any adverse effect on public order by conversion in the State whether prior to or after the enactment of the Himachal Pradesh Act. In fact, till date only one case has been registered under this Act”.
But truth has never got in the way of communal zealots, and just a few years later another judge of the Kerala high court decided to pick up where Justice K.T. Sankaran had left things.
This time it was in the case of a post-graduate homoeopathy student, Akhila, who chose to convert to Islam, adopted the name Hadiya, and perhaps without the knowledge of her parents, got married to Shafin Jahan. Hadiya’s father Asokan filed a habeas corpus petition claiming his daughter had been abducted and indoctrinated by the Islamic State, and that she should be produced in court and reunited with her parents. A division bench interviewed 23-year-old Hadiya, found that she had been privately practicing Islam for three years, after which she had formally converted, and that she was living independently of her own free will.
Accordingly, by its judgment dated January 25, 2016, the bench dismissed Asokan’s petition.
Undeterred by this rejection, Asokan K.M. found a more amenable bench headed by Justice K. Surendra Mohan, who had directed police investigation in a similar case filed by Apunny Nambiar in respect of his daughter Athira. This time Asokan embellished his allegations based on the old playbook of ‘love jihad’, forcible marriage, conversion, and human trafficking to Syria or the ISIS, all of which had been debunked after comprehensive court-supervised police investigations in 2009-2013.
Basing their infamous judgment dated May 24, 2017, entirely on fiction generated by fertile imaginations, Justices K. Surendra Mohan and K. Abraham Mathew waxed eloquent about ‘love jihad’ and human transportation, and refused to accept Hadiya’s fervent plea to be left alone to lead her own life in the manner chosen by her.
In a bizarre inversion of law, Justice Surendra Mohan held that a 24-year old post-graduate student had no right to choose her own partner, that the parents alone had the right to get their daughter married, and accordingly annulled Hadiya’s marriage to Shafin Jahan.
Not content with this travesty of justice, the Bench directed that the DGP of Kerala state should personally take over the investigation of Crime No. 21 of 2016 against Shafin Jahan, and club that with Crime No. 510 of 2016 in respect of Athira’s alleged forcible conversion. He was directed to carry out a comprehensive investigation into the activities of the organisations listed in the judgment, and ensure that the guilty are brought to book. The court also directed that departmental proceedings be taken against the investigating officer in Crime No. 21 of 2016 for not nailing Shafin Jahan.
Sadly, even the Supreme Court initially fell prey to the prejudice and bias created by Justice K. Surendra Mohan’s vitriolic judgment.
When Shafin Jahan moved his special leave petition to challenge the outlandish order annulling his marriage with Hadiya, the SC in a series of orders in August 2017 directed the National Investigation Agency to take over the investigation which Kerala’s DGP had been directed to conduct, and allowed a full-fledged national and international investigation under Section 6 of the NIA Act, 2008.
So incensed was the court by the falsehoods enumerated in the high court judgment, that it directed that Hadiya would continue in virtual incarceration until the conclusion of NIA’s investigations.
Ultimately, it was only on November 27, 2017, that the SC finally interviewed Hadiya in open court, and acknowledged that she was an educated adult who had made her own life choices. The court thus directed that though the NIA investigation would continue, Hadiya shall be re-admitted in her homoeopathy college and hostel at Salem, where she could complete her internship, and enjoy her freedom like any other student.
When arguments in Shafin Jahan v. Asokan concluded on March 8, 2018, the Supreme Court passed a short order setting aside the annulment of Shafin’s marriage with Hadiya, and directed that she was at liberty to pursue her life and future endeavours as she pleased. Once again, however, the court clarified that investigations by the NIA may continue.
Finally, by a resounding judgment dated April 9, 2018, the court set aside Justice K. Surendra Mohan’s judgment, upholding the absolute right of a major to choose her life partner as well as her faith, and to change her faith if she so desired. CJI Dipak Misra, speaking for himself and Justices A.M. Khanwilkar and now CJI, Justice D.Y. Chandrachud, in his concurring opinion, minced no words in holding that faith and marriage were personal choices protected by the right to privacy, and that no third party, whether parent or otherwise, could interfere with these choices.
Both CJI Misra and Justice Chandrachud reiterated that the NIA was free to continue with the investigations set in motion by the Supreme Court in August 2017, though it could not interfere with the marriage of Hadiya and Shafin Jahan.
This last direction is significant, as it helped nail the monstrous lie of ‘love jihad,’ which almost destroyed the lives of two young adults.
Anti-Conversion Laws Are Coming For Political Reasons Than Actual Reasons: Ex-Judge Justice Deepak Gupta | Transcript Of Interview
A recurring spectre
Despite the alacrity with which it took over the Kerala DGP’s investigations, and though it cast its net far and wide as per the Supreme Court’s orders dated August 10, 2017, and August 16, 2017, the NIA could not find a single case of ‘love jihad’, nor any conspiracy, whether local or international.
Indeed, by a written reply dated February 4, 2020, to a Starred Question, the Lok Sabha was informed by the Minister of State for Home Affairs, G. Kishan Reddy, that no case of ‘love jihad’ in Kerala has been reported by any of the Central agencies.
It does appear, however, that no matter how many times it is exposed as a mere bogey, the spectre of ‘love jihad’ will be resuscitated by none other than the judiciary.
Just a week before the Supreme Court set Hadiya free the Uttarakhand high court on November 20, 2017, ‘suggested’ that the state government should enact an anti-conversion law on the lines of those in Madhya Pradesh and Himachal Pradesh.
These comments came at the hearing of a petition by the father of a Hindu girl who had eloped with a Muslim man who had converted to Hinduism. However, the petition was already moot when the comments were made, as the girl, having been confined by court orders in a place where she would be free of the influence of her parents as well as her putative husband, had at the commencement of the hearing informed the court that she wanted to return home with her parents.
Yet, after noting that the court had no jurisdiction or authority to ask the state to legislate, Justice Rajiv Sharma proceeded to suggest that, “In order to curb this tendency, the state government is expected to legislate Freedom of Religion Act on the analogy of Madhya Pradesh Freedom of Religion Act”.
Perhaps taking a cue from this judicial suggestion, on May 14, 2018, the government notified the Uttarakhand Freedom of Religion Act, 2018. The Statement of Objects and Reasons attached to the Bill speaks of “umpteen cases of religious conversions, both mass and individual”, of “the presence of pseudo-social organizations with a hidden agenda to convert the vulnerable sections of other religions…”, of “gullible people…converted by offering allurement or under undue influence”, and of “forced conversions”.
The Uttarakhand assembly was solemnly, if inelegantly, informed in para 4 of the Statement of Objects and Reasons that:
“We have come across incidents in which with an agenda to increase strength of their own religion by getting people from other religions converted to their own religion, people do marry girls of other religions by misrepresentation of their own religion and after getting marriage to such girls, they get them converted to their own religion. Several instances came in notice that people convert themselves to the other religion only for the purpose of marriage with the girl of that religion and after marriage they got that girl converted into their own religion”.
Amazingly, the Statement then goes on to state that:
“Recently Hon’ble Supreme Court also took judicial notice of such instances in the cases of SLP (Crl.) No. 5777 of 2017 Shafin Jahan v. Asokan K.M. & Ors. and Writ Petition (Crl.) No. 142 of 2016 Aman Beg v. State of Madhya Pradesh & Ors.”.
Conveniently, the Legislature was either not told, or chose to ignore, the judgment that the Supreme Court had delivered on April 09, 2018, in Shafin Jahan v. Asokan K.M. & Ors.
The story of Uttar Pradesh’s ‘love jihad’ law, though not instigated by judicial pronouncements, is equally intriguing.
Since the cry of ‘love jihad’ was said to have resulted in the disastrous Muzaffarnagar riots of 2013, Cobrapost and Gulail carried out a year-long investigation culminating in a print and television report released on one October 4, 2015. The investigation, titled Operation Juliet: Busting the myth of love jihad, was based on televised stings of leading members of the Rashtriya Swayamsevak Sangh, Vishwa Hindu Parishad, Bharatiya Janata Party, and Bajrang Dal, including Union minister Sanjeev Kumar Balyan, MP from Kairana Hukum Singh, MLA from Sardhana Sangeet Som, and the Muzaffarnagar heads of the RSS and the VHP.
Cobrapost and Gulail captured them admitting on camera that they had filed fake rape and kidnapping cases, had faked documents to show that the women concerned were minors, and that they used their clout with the police to convert routine marriages into love jihad cases.
Importantly, the investigation revealed that not a single ‘rescued’ woman had sought the help of the Hindutva forces, nor had any of them claimed that she was a victim of kidnapping or ‘love jihad.’
Despite the comprehensive debunking of this myth by Cobrapost and Gulail, on November 21, 2019, Justice Aditya Nath Mittal of the Uttar Pradesh Law Commission presented a draft anti-conversion Bill to chief minister Adityanath. Taking a cue from the Law Commission, the CM got the IGP of Kanpur Range to set up a Special Investigation Team to investigate the phenomenon of ‘love jihad.’
On November 24, 2020, the SIT’s findings were announced by IGP Mohit Agarwal at a press conference. He revealed that there were only 14 cases lodged throughout Kanpur district during the past two years, eight of which pertained to minor girls. Three cases were closed as the girls were major, and had married their Muslim partners of their own free will, while kidnapping and forced marriage cases were registered against the male partners in the remaining 11, including those of eight minors.
Notwithstanding the prolonged SIT probe and FIRs, however, the IGP stated to the press:
“The conspiracy part could not be established. The inquiry team also did not find any organisation to be behind the youths (accused). Also, they were not being funded from abroad”.
Not to be held back by anything as trivial as lack of evidence, UP’s CM got Governor Anandiben Patel to sign off an Ordinance just three days after the IGP’s press conference, criminalising conversion for marriage, reversing the burden of proof, and incorporating all the vicious elements of the 2018 Uttarakhand law, with a few more refinements thrown in.
The Ordinance was replaced by the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021, the Statement of Objects and Reasons of which blithely proclaimed that “in the recent past many such examples have come to light where gullible persons have been converted from one religion to another by misrepresentation, force, undue influence, coercion, allurement or by fraudulent means”.
An interesting aside: barely a month and a half after signing the UP Ordinance, Governor Anandiben Patel, now in Madhya Pradesh, promulgated a similar Ordinance, based on similar lack of foundation or basis, in that state.
Another interesting aside: a series of investigative reports and personal interviews released by NewsLaundry in 2021 revealed that in seven out of the 11 cases filed by the SIT, the claims of “forced conversion” and “coercion” were denied by the alleged victims, and were utterly hollow.
UP Ordinance Criminalizing Religious Conversion By Marriage Is An Assault On Personal Liberty
The relentless march of ‘love jihad’ laws continues even where courts have been vigilant in protecting citizens’ rights.
While striking down certain provisions of the Himachal Pradesh Act of 2006 in Evangelical Fellowship of India, Justice Deepak Gupta noted that only one case had been registered in the six years since it was enacted. Yet in October 2019, the 2006 Act was repealed and re-enacted as the Himachal Pradesh Freedom of Religion Act, 2019; and with brazen insouciance, the provisions struck down by the high court have been brought back, multiplied many times over.
Without a shred of evidence, the Statement of Objects and Reasons with the Bill stated that “It has been observed that there is a rise in conversions by fraudulent means…” and further, that a complete revamp of the 2006 law was found necessary as:
“The punishments provided in the Act are not as sufficient as to have a deterrent effect and therefore, adequate punishments are required to be provided on the analogy of some other States like Uttarakhand. There is also no provision to check the marriages solemnized only for sole purpose of conversion. Besides, the Act also does not provide punishment to an institution or organisation involved in conversions”.
Coming full circle, while the judiciary has time and again acted like the B-team of communal zealots in playing up the fiction of love jihad, there has also been a marked pushback by some.
In a scathing judgment dated 19.10.2017 in Anees Hameed v. Kerala, Justices V. Chitambaresh and Sathish Ninan of the Kerala high court recorded that they were “appalled to notice the recent trend in the State to sensationalise every case of inter-religious marriage as either ‘love jihad’ or ‘ghar wapsi’, even if there was platonic love between the spouses before”.
The court directed police investigation and action against a Yoga Kendra that was being used for forcible indoctrination of Hindu girls who wished to marry outside their caste or religion. The court found that Anees Hameed’s wife, Aruthi Meledath had been forcibly incarcerated by her parents in this Yoga Kendra after gaining unlawful custody of her from the police, who had picked up the husband and wife from Sonepat in Haryana, brought them to Kerala, and handed the wife over to her parents. The bench reunited the couple after issuing severe strictures against the authorities.
The Supreme Court has also weighed in strongly in favour of freedom to choose faith and partner, though not in the context of these anti-conversion laws. Having cemented the right to privacy as a fundamental right in Puttaswamy (2017), the court held that the right to choose a partner or to change one’s faith were essential elements of privacy and equality in Shafin Jahan (2018), and in Shakti Vahini (2018) it held that the right of adults to marry persons of their choice could not be interfered with by parents, communities, khap panchayats, or the authorities.
It can only be hoped that when serial litigators try to raise this bogey yet again, the Supreme Court will have learnt from the past.
Chander Uday Singh is a Senior Advocate.
The article was first published in 'The Wire'.