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The 'love jihad' law: A fraud on the Constitution

EDITOR’S CHOICE-08-12-2020

Americans can heave a sigh of relief that Mr Donald Trump will be finally out on January 20, 2021. Yet, they cannot wish away the sobering fact that 73,890,295 citizens of the United States voted for Mr Trump, only 6,136,426 less than the number that voted for President-elect Joe Biden. America is divided as never before since 1860.

The civil war of 1860 was fought on the issue of ‘right to equality’. Should black Americans be treated as equal before the law? The divisive factor was race. Eventually, after a bitter war in which an estimated 800,000 lives were lost, President Lincoln prevailed. He also got the Congress to pass the 13th Amendment to the Constitution.

Throughout the struggle for Indian Independence, Indians were not divided on race, religion, caste, language or gender. The pages of history of the struggle are filled with names of people who belonged to different regions, spoke different languages, identified themselves with different castes and practised different faiths.

Equality enshrined

At the dawn of independent India, therefore, ‘equality before law’ of every Indian was a given. The idea was effortlessly translated into fundamental rights of citizens and embodied in the Constitution: Article 14 - Equality and equal protection of the laws; Article 15 - Prohibition of discrimination; Article 16 - Equality of opportunity; Article 21 - Protection of life and personal liberty; and Article 25 - Freedom of conscience.

Mindful of the havoc wrought following the Partition, the Constituent Assembly made two special provisions to reassure minorities: Article 29 for protection of interests of minorities and Article 30 for rights of minorities to establish and administer educational institutions. Any citizen having a distinct language, script, culture or religion was a ‘minority’.

In the US, as the years rolled by, new facets of equality were discovered and upheld by the courts: among them were the right to vote, right to desegregated schools and public spaces, and right to abortion. The fountainhead was the 13th Amendment.

Primitive instincts

Many Indians seem to have forgotten history. Many appear to repudiate the fundamental principles of the Constitution. Many are proudly proclaiming their assumed distinctiveness and superiority. These primitive instincts were kept under check as long as the political space was dominated by persons who believed in liberty, equality and fraternity of all the people of India. When the BJP — and its mentor, the RSS — acquired a presence, and grew, in the political space, these primitive instincts acquired political legitimacy.

We can cite many examples: the imposition of Hindi on non-Hindi speaking people, the discriminatory National Register of Citizens and the Citizenship (Amendment) Act, the dismemberment of the state of Jammu and Kashmir, the denial of human rights to under-custody and under-trial prisoners, the detention of political leaders without charge or trial, the erosion by stealth of the reservation for SCs, STs and OBCs, the onslaught on federalism and the brazen attempt to impose an Oneness in everything from ration cards to entrance examinations to elections.

It is a majoritarian agenda. The 37.38 per cent vote and the 303 seats secured by the BJP in the last election to the Lok Sabha did not mean that 50 per cent + 1 citizens supported the agenda of the BJP. The BJP has the right to rule, but not the right to destroy or subvert the Constitution.

Onslaught on liberty

The BJP governments have the right to protect the cow but no right to stipulate that no one (including Christians and people of the Northeast) shall eat beef. They have the right to encourage the use of Hindi but no right to impose the language upon non-Hindi speaking people or make it difficult for the latter to participate in the governance of the country. They have the right to prevent obscenity in public but no right to unleash the police on young lovers in a park.

The latest excess - testing the limits of egregiousness - is the law made by Uttar Pradesh to punish what is crudely called ‘love jihad’. The targets are Muslim men who love or marry or live with Hindu women. The text of the UP law is directed against inter-faith marriages or living together, particularly Hindu-Muslim couples. The questionable text reads:

“No person shall convert or attempt to convert, either directly or otherwise, any other person from one religion to another by misrepresentation, force, undue influence, coercion, allurement, fraudulent means or marriage….”

The law equates marriage with misrepresentation, force, undue influence, coercion, allurement and fraudulent means!

It is a brazen attempt to legislate on something very private - choice of partner. The law departments of these states have evidently not read the judgments of the Supreme Court (Shafin Jahan, Puttaswamy) and the Allahabad High Court (Salamat Ansari vs State of UP, dated 11-11-2020). More likely, having read them, the draftsmen have been assured by their political masters that those judgments will be overruled and the law re-written to pander to the primitive instincts of the rulers.

The law is an onslaught on choice; on freedom; on privacy; on dignity; on the equality of man and woman; and on the right to love or live together or marry. The Constitutional courts, which have re-affirmed their foremost duty to protect liberty, will undoubtedly strike down the law.

The ultimate result is not in doubt. It is the ‘meanwhile’ that puts in peril democracy and freedom. The first victim, meanwhile, of the UP law is Mr Owais Ahmad.