Love Jihad: A challenge to the Constitution?

FOR IMMEDIATE RELEASE
(Free-Press-Release.com) December 27, 2009 -- A new offensive seems to be in the offing with the controversy building around what Hindutva groups have been calling 'Love Jihad' or 'Romeo Jihad'. What this phrase means, according to Hindutva activists, is the use by Muslim youth of 'love' as a weapon to 'convert' innocent Hindu girls. Within this understanding, any Hindu girl who converts to Islam or (as the Kerala Catholic Bishops Council alleges) Christianity, is a victim of 'love jihad', regardless of the fact that she is legally competent to marry.

The orders of the high courts of Karnataka and Kerala have given this term greater currency in recent times. When these courts were confronted with cases of Hindu girls who decided to run away and marry Muslim boys and whose parents sought illegal custody of their major daughters, the courts converted an individual dispute between parental authority and children's autonomy into the fictional phenomenon called ‘love jihad’.

The core constitutional objection to those who project 'love jihad' as a threat to Hindu society from Muslim youth is that they privilege public morality over constitutional morality. However much parents might object to their daughters choosing to marry someone from another community, the choice of the young person is constitutionally protected. The Indian Constitution is envisaged not just as an instrument to protect certain rights, but also as a mechanism which will facilitate reform in 'Indian society'. In particular the Preamble's promise of fraternity is nothing but an attack on Indian society as comprising a series of discrete and insular communities with no form of social interaction between them.

In the light of this understanding of the Indian Constitution, laws such as the Special Marriage Act, 1954, which recognises marriages between girls over 18 and boys over 21, regardless of considerations of religion and caste, have a social role beyond facilitating the marriage of two parties who desire to marry each other. Dr Ambedkar recognised the importance of promoting inter-marriage for the very meaning of Indian democracy.

The role of laws such as the Special Marriage Act is clearly to promote the fulfilment of a vision of India premised on the idea that communities are not insular but instead have deep fraternal relations with each other. This might very well be one of the very practical reasons for 'conversion' before marriage. A more meaningful notion of democracy demands that we expand the range of real and effective choices open to people by amending the Special Marriage Act and doing away with the requirement of notice altogether.

(Arvind Narrain is a lawyer and human rights activist with the Alternative Law Forum)

Infochange News & Features, December 2009

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