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Sunday, January 24, 2021

UP anti-conversion law overturns social culture of law-making in modern India

Overturning accepted principles of justice, the “burden of proof” is on the accused. The law agencies do not have to bother about proving guilt; instead, the accused will have to run from pillar to post to show evidence of innocence

Written by Pradip Kumar Datta | Updated: January 4, 2021 8:51:44 am
Jumping to our time, the UP ordinance shows that despite the lack of evidence of “love jihad” (testified by SIT probes), the organised insistence on a fictional conversion conspiracy has managed to have its way.

The Uttar Pradesh Vidhi Virudh Dharma Samaparivartan Pratishedh Adhyadesh 2020, known as the “love jihad” law, dramatically expands the scope of prohibitions against conversion, with catastrophic implications for inter-faith marriage.

The most effective feature of the ordinance are the procedures it stipulates for identifying illegitimate conversions. Conversions immediately preceding or succeeding marriage are prohibited. This is, of course, not a major impediment since a person can conceivably convert much before or much after marriage. But the actual act of conversion is made dangerous. This is done by adding “allurement” for conversion as a cognisable and non-bailable offence. Allurement takes the form of “material benefit”, employment, free education in “reputed schools”, “better lifestyle”, even “divine displeasure”. A gift can be accepted to strengthen social bonds; a school can be attended from a desire for education; but the same person may convert for reasons of faith — not for the “temptation” of gifts or of good education. How can the motivation to convert be established on the basis of what is really a coincidence of different actions?

The law provides a remarkable solution. Overturning accepted principles of justice, the “burden of proof” is on the accused. The law agencies do not have to bother about proving guilt; instead, the accused will have to run from pillar to post to show evidence of innocence. If this were not enough, a FIR can be lodged by any member of the family related through blood, marriage or adoption. Picture this scenario: An interfaith couple announces an intention to marry and this does not suit an unknown relative, who charges one of the partners with illegal conversion. To prove innocence in an already overburdened and slow-moving court system will take up a great part of one’s life.

In the case of conversion, this is doubly dangerous since the ordinance envisions no measures to protect the intended convert. On the contrary, the precise details of the probable convert will be displayed outside the DM’s office. There is little room for escaping the ministrations of the love terminators.

The testimony of the converted is not even mentioned in the document. What does the converted think of the conversion? Why has he or she converted? None of these questions that give personhood to the converted is mentioned in the procedures. Instead of giving the basic right of conscience to the individual, it is the police who are given the task of verifying the legitimacy of the conversion. Given the connection between conversion and inter-faith unions popularised by vigilante and police action, it is only logical to assume that the police can interfere with any inter-faith marriage.

Indeed, just after the ordinance, a consensual marriage with approval of the respective families was investigated by the UP police on the complaint of Hindu Yuva Vahini. Even the family no longer matters. It is the police with the backing of vigilante groups that can intervene at will.

The campaign against inter-faith unions is not new. About a century ago, an organisation called the Women’s Protection League, headed by lawyers and newspapermen, alleged that Muslim “goondas” were abducting Hindu women. They indiscriminately lumped together actual cases of physical kidnappings and sexual exploitation with consensual unions. Often the league’s narrative was refuted by the woman saying she had consented or had the approval of parents. The campaign did not cause physical violence. Nonetheless, their high-voltage publicity generated a tremendous sharpening of communal ill-will. It contributed to the repudiation of the heritage of the Non-cooperation-Khilafat movement. Interestingly, there was a turnaround a decade later. Under a different leadership, the League cited statistics showing that both Hindu and Muslim goondas abducted women. It also probed the family oppression of women, which led to their being entrapped in cases of actual abduction.

Jumping to our time, the UP ordinance shows that despite the lack of evidence of “love jihad” (testified by SIT probes), the organised insistence on a fictional conversion conspiracy has managed to have its way. In the process, it has plugged many of the embarrassing holes, such as the question of choice, that plagued the League campaign.

The ordinance also promises to overturn the social culture of law-making in modern India. Let me take two milestones in the making of modern law. The foundational moment is Rammohun Roy and his campaign to outlaw widow burning. Roy’s motivation for the campaign was to insist on the personhood and autonomy of the widow. He believed this would produce a society that would be bound together by mutual compassion and sympathy. The decisive moment is that of Ambedkar. A crucial concern for Ambedkar was with fraternity that could only be ensured by providing individual liberty and by gradually equalising opportunities for social segments. Fraternity was notably lacking in Indian society and it was the duty of law to provide its foundations. For both Roy and Ambedkar, the purpose of law was to remake social relations.

While neither thinker spoke on inter-faith marriages, it is significant that Roy was suspected of converting (even if he did not) while Ambedkar actually converted. More than anything else, it is clear that the ideal of fraternity is one that is served by inter-faith unions that may or may not include conversions. It promises a place where a range of modern syncretic cultures can develop alongside others. In a letter to a couple who braved communal tensions to enter an inter-faith marriage, Rabindranath Tagore wrote that love has its own rules that are not bound by dharma or varna. It is our culture of law-making that sanctions the exploration of the unknown, the experiments with truths, that are at grave risk in this drive to what may be called fraternicide.

This article first appeared in the print edition on January 4, 2021 under the title ‘Strike against fraternity’. The writer is a former professor of political thought at JNU

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