It is senseless that we in the 21st century are still dealing with religion as though it was a means to determine one’s relationship to the State.
At common law, it used to be the case that when a woman married a foreigner, she would assume the nationality of her husband. This position has clearly since changed as the march of history has moved forward. Yet in India, we tend to replace nationality with religion and think that merely because a woman marries a man of another faith, she takes on the faith of her husband.
But there is a problem with the analogy I just drew. Religion unlike nationality is something in India that is a function of freedom of choice. We can choose to be religious or we can choose not to be. That is inalienable freedom that is guaranteed under the Constitution. Therefore the question of the State trying to decide if a “conversion” is valid or not is deeply problematic.
Which is why the judgment of a single judge Allahabad High Court in October was so problematic. While hearing a writ petition from a couple asking for police protection because the woman had converted to marry, the court said that the conversion would not be bonafide if it was only done to remove a legal disability to go ahead with a marriage.
Unlike the Hindu Marriage Act, which allows for the solemnisation of a Hindu marriage if only one of the parties is Hindu, this is not the case under Muslim law, which has its own requirements about the faith of the parties. Simply put, it will be difficult to solemnise a marriage under Muslim rites if both the parties are not Muslim. This is perhaps where the root of the controversy stems from.
However, on Monday, the Allahabad High Court overruled its 30 October order and said that whether the conversion was valid or not is immaterial to deciding the right of two people to live together safely. This comes in the wake various states in India proposing what are called “Love Jihad Laws” the most prominent being Uttar Pradesh.
Under these laws, people who do conversions via fraudulent means or misrepresentation will be prosecuted and punished. If the marriage was done solely to change the religion, then the marriage would become null. Further, people will have to fill up a form and convert before the district magistrate. If there was ever a recipe for disaster it is this. For right now, people can change their faith organically. With these laws in place, people will only be able to change their faith by the diktat of the state.
But the broader question of whether these laws will achieve the object to stop the so-called “Love Jihad” is something that needs to be examined.
If a person wants to stop following a faith and follow another they can do so. They need not tell anyone. A Hindu may start attending a mosque and a Muslim may start attending a temple. The only way to check if the conversion is real or not would be to examine the party and put questions to them on matters touching upon their conscience. This happened once before in India. In Portuguese India to be exact and it was called the Goa Inquisition.
The inquisition was sent to check whether those who had converted to catholicism had actually converted or not. It will be impossible to, without a means of inquisition, to determine if a conversion is truly bonafide or not. For under Indian law right now, you can change religions once every minute if you like. The law does not extend to matters of conscience right now. But this procedural requirement could result in chaos. Individuals may be observed and reported by others for changing their faith without the prior sanction of the law. Family disputes could turn into legal disputes.
It is senseless that we in the 21st century are still dealing with religion as though it was a means to determine one’s relationship to the State. The State is no respecter of religions under our Constitution, the State remains secular. If that is the case, what is the State’s interest in ensuring that a conversation is “valid”. Who is the government to come and tell a person that they are too Hindu or too Muslim to be considered otherwise? This is nothing but a blatant assault of civil liberties at the most fundamental level. One hopes these laws will be struck down.
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