Individual rights are freedoms guaranteed by the Constitution. Group rights are politics. In a democracy, politicians pander to vote banks and hence often back rights demanded by religious or caste groups. Individual rights do not have the same political clout. The Supreme Court must stand up for individual rights threatened by politically backed groups.
New laws are planned or already enacted by eight BJPruled states on “love jihad”, an absurd but vicious ploy portraying love marriage of Muslims with partners of other religions as holy war. You might think secular parties would automatically oppose this, but the Congress and other Opposition parties unanimously backed a draconian love jihad law in Himachal Pradesh last year. The current Congress criticism of a similar law in Uttar Pradesh reflects cynical opportunism, not principle.
Many new laws echo the language of the Himachal Pradesh law. Using inducements or force for religious conversion has been a crime for decades. The courts have often refused convictions because the word “inducement” is so vague. So, the Himachal law defined it in detail as “any temptation in the form of any gift or gratification or material benefit, either in cash or kind or employment, free education in reputed school run by any religious body, easy money, better lifestyle, divine pleasure or otherwise.”
This outrageous definition can be used to jail anyone. Every convert believes he or she is moving to a superior divine order, so how can the promise of “divine pleasure” be called illegal inducement? Gifts are given to all married couples, so how can this be called illegal? When the Constitution entitles Christians or Muslims to give priority to their religious brethren in admission to their schools or colleges, how can the new law make this criminal?
Worst of all, the new laws make inducement a cognisable, non-bailable offence. The onus of proof is not on the police to prove the crime, but on defendants to prove their innocence. This facilitates the most blatant misuse of the law. Innocence must be assumed till guilt is proved.
The Supreme Court must come to the rescue. First, it must emphasise that consenting adults can marry anybody regardless of family, caste or religious objections. Second, the onus of proof must be placed on the prosecution. Third, such offences must not be cognisable (that is, police cannot arrest anybody without a formal complaint and an arrest warrant). Fourth, the broad definition of “inducement” is a veritable scandal, so the court should specifically prohibit the definition from covering gifts, divine promises, or college entry. Fifth, the court should scrap clauses permitting interfaith marriages to be cancelled because they supposedly threaten public order or promote enmity between communities.
Finally, the Supreme Court should consider throwing out all the new laws on the ground that forced conversion is already illegal, so the draconian love jihad laws are both superfluous and aimed at threatening several constitutionally-protected individual rights — to religious freedom, to privacy, and to conscience.
The new love jihad laws say the district magistrate must be given advance notice of intent to marry and must clear proposed religious conversions in advance. How can a secular state empower a government official to decide which religion an individual can subscribe to? This surely violates religious freedom and the right to privacy.
More than 95% of all marriages in India are arranged by parents, and love marriages have traditionally been regarded as ruination of family, caste or religious honour. When boys and girls elope and get married, the parents often register a case of kidnapping. In Bihar, Lalu Yadav’s “jungle raj” was ended in 2005 by Nitish Kumar, who re-instated law and order. Analysing crime data in the state, I was astonished to find that kidnappings had skyrocketed after Nitish took over. Inquiries revealed that the overwhelming majority of kidnap complaints came from parents whose children had eloped. Kidnappings accompanied by ransom demands had declined sharply.
Christians complain of false arrests on the ground of forced conversion. Yet some Christian pastors are happy to invoke the bogey of love jihad if a Christian girl elopes with a Muslim boy. Double standards are not the monopoly of Hindus or the BJP.
Khap panchayats in north India have long killed young Hindu couples marrying across castes. In Tamil Nadu, the Vanniyars, a backward caste, accuse Dalit boys of using force or inducement to trap Vanniyar girls into marriage, a caste-based echo of the love jihad theme. The Supreme Court must declare categorically that every adult can freely choose his or her marriage partner and religion without permission from government officials, family, or religious leaders.