Recently, a Bishop from Kerala directly accused Muslims for making ‘Catholic’ girls in the State, victims of ‘love and narcotic jihad’; on 10 September the CM of Gujarat (who has since resigned for other reasons) said that his Government is “dealing strictly with those who trap Hindu girls and elope with them.” Both the Bishop and the BJP CM are wrong on several counts – and in fact, their words are patently unconstitutional, writes Fr. Cedric Prakash SJ.
The bogey of ‘Love Jihad’ continues to be kept centre-stage! An insidious strategy to defocus on real issues plaguing society in India. Recently, a Bishop from Kerala directly accused Muslims for making ‘Catholic’ girls in the State, victims of ‘love and narcotic jihad’; on 10 September the CM of Gujarat (who has since resigned for other reasons) said that his Government is “dealing strictly with those who trap Hindu girls and elope with them.” Both the Bishop and the BJP CM are wrong on several counts – and in fact, their words are patently unconstitutional. Their words are reflective of a patriarchal mindset – which regards an adult Catholic/Hindu woman as a ‘moron’ who is unable to think and decide for herself: be it in marrying the person of one’s choice or for that matter embracing the religion of one’s choice. Secondly, both Bishop and CM have absolutely nothing substantive to prove their point: the Bishop is certainly unable to say how many Kerala Catholic girls have married Hindus or people from other faiths; or for that matter just left the Catholic Church. It is exactly the same for the CM. The Bishop needs to have the honesty to address the scandals: financial and sexual within the Church; the CM needs to address the dismal state of affairs on every possible front, in Gujarat! Both Bishop and CM should also take a visible and vocal stand in championing the rights (particularly, dignity and equality) of women in the Church and Country!
The questions the Bishop and the CM need to ask are: if two mature consenting adults would like to marry does the State or the Church, have the right to stop them from doing so? If a Dalit girl wants to embrace Buddhism, since it is the religion of her husband and will perhaps lead to enhancing the quality of her life, does she have the right to do so? Or for that matter, if a Christian girl wants to freely embrace Islam after marrying a Muslim, does she also have the right to do so? Why should the State (with its brutal mechanism and vigilantes) or the Church, interfere in matters which are personal and private and clearly violative of Article 21: the right to privacy? On 24 August 2017, the Supreme Court of India in a historic judgement declared the right to privacy as a fundamental right, protected under the Indian Constitution. In declaring that this right stems from the fundamental right to life and liberty, the Court’s decision has far-reaching consequences for every citizen
On 8 September 2021, the Gujarat High Court sent a notice to the Government as to why it should not quash the first ‘love jihad’ case under the newly amended law. The woman concerned has petitioned the court to do so; she says that the charges made against her husband were fabricated by the police. Earlier, on 19 August, in a landmark interim order, the High Court stayed the operation of several sections of the Freedom of Religion (Amendment) Act, 2021, including the provision that termed interfaith marriages as means for forceful conversion. The law, which was amended to bring in the clause on interfaith marriages as a means to carry out forced conversion, among other things, was passed by the Gujarat Assembly on 1 April; after the Gujarat Governor gave his assent on 22 May, the State Government notified it and enforced the amended law in the entire State from 15 June. There were two petitions that had challenged some provisions of the amended Act, primarily on the grounds that the law is completely arbitrary and violates the right to privacy.
A division bench headed by Chief Justice Vikram Nath (who has now been elevated to the Supreme Court) stayed sections 3, 4, 4A to 4C, 5, 6 and 6A of the amended Act pending further hearing, saying they “shall not operate merely because a marriage is solemnised by a person of one religion with a person of another religion without force or by allurement or by fraudulent means and such marriages cannot be termed as marriages for the purposes of unlawful conversion”. A week later the High Court (on 26 August) turned down the State Government’s plea seeking rectification of its recent order in which it stayed the operation of Section 5 of the new anti-conversion law. That Section of the Gujarat Freedom of Religion (Amendment) Act, 2021 mandates that religious priests must take prior permission from the district magistrate for converting any person from one religion to another. Moreover, the one who got converted also needs to “send an intimation” to the district magistrate in a prescribed form. “We do not find reason to make any changes in the order passed by us on August 19”, the same division bench stated after hearing the arguments put forth by the State Advocate General. The recent interim orders passed by the Gujarat High Court are indeed path-breaking and will surely be used as a precedence in the challenge of the other draconian and unconstitutional ‘anti-conversion’ laws (or by its more innocuous sounding sobriquet ‘freedom of religion’ or the more derogative ‘love jihad’) which exist in some of the States today and is high on the agenda of the ruling regime as a national legislation.
The amendments of the ‘Gujarat Freedom of Religion Act’ were passed by the Gujarat State Assembly, amidst strong protests from the Opposition members. If it not for the fact that the original act of 2003 and its present amendments are blatantly violative of the Constitution, some of the provisions are so ridiculous that they could lead to tears of laughter! For example, ‘The Statement of Objects and Reasons of the Bill’ states that, “there are episodes of religious conversion promising better lifestyle, divine blessings and impersonation. There is an emerging trend in which women are lured to marriage for the purpose of religious conversion”.
The ‘Gujarat Freedom of Religion Act 2003’, which was passed by the Gujarat Assembly on 26 March 2003; at that time, the entire Opposition walked out. It took full five years till 2008, for the Gujarat Government to frame the necessary rules. The law is easily one of the most draconian ones in the history of any democracy in the world and was piloted by the then Chief Minister of Gujarat, Narendra Modi who is currently the Prime Minister of India! During his election campaign in 2002, he singled out Muslims and Christians and promised to bring in an anti-conversion law.
The provisions of the 2003 law include the following:
- It prohibits forcible conversion by allurement or fraudulent means. ‘Allurement’ is defined as “any gift or grant of any material benefit, either monetary or otherwise”. ‘Force’ is defined as “show of force or a threat of injury of any kind, including threat of divine displeasure or social ex-communication”. ‘Fraudulent means’ is defined as “misrepresentation of any other fraudulent contrivance”.
- It provides for punishment of those who seek to forcibly convert for a period up to three years imprisonment and a fine up to Rs.50,000. but if the person being forcibly converted is a “minor, a woman, or a person belonging to scheduled caste or scheduled tribe”, the punishment is for a term of up to four years imprisonment and a fine of Rs. 1 lakh.
- Anyone seeking to convert someone from one religion to another, either by performing a ceremony as a religious priest, or takes part directly or indirectly in the ceremony, shall have to take prior permission from the district magistrate (a civil authority) through a prescribed format.
- The person who is sought to be converted shall have to intimate the district magistrate about the ceremony within a prescribed period, to be laid down in the rules. In case of default, the converted shall face upto one year imprisonment or a fine of Rs.1,000 or both.\
The Act was clearly aimed at the minorities of the State particularly the Muslims and Christians.
In February 2006, in keeping with the letter and spirit of his anti-Constitutional law, at a Shabri Kumbh (a mass gathering of Hindus) programme in the Dangs (supported by the Gujarat Government), Modi warned the Christians “It is my constitutional duty to prevent conversions. Our Constitution disapproves of them, and yet some people turn a blind eye.” Morari Bapu accused the Christians of bringing in plane-loads of missionaries from the Vatican “who come here to carry out conversion activities but when we organise a ‘ghar wapsi’ why should it be termed as bad?” Both Modi and Morari Bapu also clearly endorsed the ‘ghar wapsi’ programmes which were part of that programme. In 2009, the constitutional validity of this law was challenged in the Gujarat High Court by the Gujarat United Christian Forum for Human Rights and others. A notice was sent to the Government to respond, but they did not do so. The petitioners later withdrew their petition with an intention of making it stronger.
The basic premise is not whether one has the right ‘to convert another’; but whether a citizen has the right to freely choose a religion of one’s choice. Article 25 of the Constitution of India guarantees the freedom of conscience, the freedom to profess, practice and propagate religion to all citizens and Article 18 of the Universal Declaration of Human Rights (of which India is a signatory)asserts that “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance”.
Whilst piloting the recent amendments, the Home Minister of Gujarat Pradipsinh Jadeja, did not try to hide the communal intent of the Gujarat Government saying, “Our Government will never forgive the Jihadi elements who abuse our daughters. Love Jihad is not our political agenda but it is our pain and our government is determined to take strict action by converting this pain into the system”. In a manner which has come to characterise the mindset of the ruling regime, Jadeja added that love jihad was a ploy of Muslim countries to control India and attack the social fabric of the country. The April 1 amendments are not jokes nor tomfoolery. Referred to now as the ‘Gujarat Freedom of Religion Act, 2021’ it provides more stringent punishment against forced religious conversions through marriage. The new law has provision for three to ten years in jail and a fine of up to five lakh rupees if the accused is found guilty. The Bill amends a 2003 Act and seeks to curb the emerging trend in which women are lured to marriage for the purpose of religious conversion. Gujarat is the fourth State to have a law on so-called ‘forced’ conversion after Uttar Pradesh, Madhya Pradesh and Himachal Pradesh.
The key amendments in the ‘Gujarat Freedom of Religion Act, 2021’ include:
- The original act of 2003 specified only two categories of allurement or offer of temptation (under Section 2 of the Act): Any gift or gratification, either in cash or kind, and a grant of any material benefit, monetary or otherwise. However, the amendment bill proposes a third category — “better lifestyle, divine blessings or otherwise”.
- Insertion of new Section 3A on Lodging of Complaint : Any aggrieved person, his parents, brother, sister or any other person related by blood, marriage or adoption may lodge a first information report with the police station having jurisdiction against the person
- Insertion of new section 4A for Punishment for contravention of provisions Section 3 in case of marriage by unlawful conversion: Notwithstanding anything contained in Section 4, whoever contravenes the provisions of Section 3, insofar as conversion by marriage or by getting a person married shall be punished with imprisonment which shall not be less than 3 years but which may extend to 5 years and shall also be liable to fine which shall not less than Rs. Two lakhs.
- Insertion of new section 4B on Marriage by unlawful conversion: Any marriage which is done for the purpose of unlawful conversion by the person of one religion with the person of another religion, either by converting himself/herself before or after marriage shall be declared void by the Family Court or were the Family Court is not established by the Court having jurisdiction to try such cases.
- Section 4 (C), if any institution or organisation is found contravening the law, then every person who was in charge or was responsible for violation of law could be punished for imprisonment for three years (may extend up to 10 years) in jail and a fine of up to ₹5 lakh can be imposed.
- Insertion of section 6A on Burden of Proof: The burden of proof as to whether a religious conversion was not affected through misrepresentation, force, undue influence, coercion, allurement, or by any fraudulent means or by marriage shall lie on the person who has caused the conversion and, where such conversion has been facilitated by any person by act, omission, aid, abetment or counselling, on such other person.
- Offences to Be Cognizable and Non Bailable in Section 7: The offences under the Act have been made Cognizable and Non Bailable and they will be investigated only by an officer who isn’t below the rank of Deputy Superintendent of Police.
There are several points both in the original Act of 2003 and in the recent amendments, which are not only contentious but blatantly unconstitutional. For example, the point of ‘better lifestyle, divine blessings or otherwise’: this certainly has far-reaching implications and can have a whole range of interpretations. Let’s talk about ‘better lifestyle’: who decides what is a so-called ‘better lifestyle’? Take the instance of a person whose original religion dictated plenty of fast and penance – now s/he embraces a religion which say, allows eating plenty and perhaps a different type of food and also with less rigorous penance; all of this makes the ‘converter’ a happier person – could this be interpreted as a ‘better lifestyle?’
Then there is the aspect of ‘divine blessing’; for centuries, people from all walks of life have been invoking God’s blessings on each other! So, does it now mean that in Gujarat we can no longer say “God bless you!” or invoke God’s blessings (or divine intervention) on another for whatever the reason? Strange indeed! Then comes the whole dimension of preaching: the sermons and homilies that Christian priests, religious and catechists give all the time. One speaks about ‘heaven’, ‘eternal life’, ‘finding peace in God’ and so on – does all this contravene the newly amended law? The opposite is ‘divine displeasure’ which may come under this ambit: can one say that one may go to ‘hell’ if one does not obey the commandments of God or maybe even embrace a particular religion? The icing on the cake is the word ‘otherwise’ – what does it mean legally, is it tenable or does one leave it to the whims and fancies of the so-called interpreter and judge of the law?
Any informed and concerned citizen knows that there are ample provisions in the CrPC to deal with anything to do with force and fraud, bribery and corruption, threat and kidnap – why are these not being used to deal with say the bogey of ‘love jihad’? On the other hand, why are these not being used against our high and mighty politicians and other vested interests? They have made promises galore, cheated the poor and the marginalised of what is rightfully theirs and looted the nation. Many of them should have been imprisoned for life, long ago! The amended Gujarat Freedom of Religion law has provisions like the ‘offences to be cognizable and non-bailable’ which seem to be taken right out from another draconian and anti-people legislation, the Unlawful Activities Prevention Act (UAPA). We the people of India, are certainly experiencing difficult days under a fascist regime! These laws are against democratic tenets, the nation’s secular fabric and the fundamental rights of citizens. It reveals the agenda of a fascist regime that is clearly afraid that a thinking and discerning citizenry will expose their hegemony on the marginalised and the minorities, the Dalits and Adivasis of the country; above all, it is a pitiable attempt to defocus from the urgent and pressing issues which are destroying the nation today!
The Gujarat Court’s interim orders are a ray of hope to many who cherish the rights and freedoms enshrined in the Constitution. The so-called ‘love jihad’ is clearly a bogey! The Bishop needs to wake to the Gospel of Jesus; and together with the CM of Gujarat (where the issue is sub-judice) and their ilk, should realise that we have a Constitution which is sacred and meant to guarantee and protect the rights of all citizens!
(Fr Cedric Prakash SJ is a human rights, reconciliation & peace activist/writer.
Contact: email@example.com )