New Delhi: While sentencing a Muslim boy to life imprisonment recently, a judge in Bareilly made several unverified claims about systematic attempts by Muslim men to target Hindu women for converting them to Islam. However, by using the phrase “love jihad”— an extremist right-wing conspiracy theory to deter Hindu women from loving or marrying Muslim men — to express his personal views, judge Ravi Kumar Diwakar entered into what has so far largely been a matter of the political domain.
The term “love jihad”, though popularly and loosely used by mainstream media and the Sangh Parivar ecosystem, has no legal basis, definition or record. In fact, Diwakar’s use of the phrase stands at odds with the Uttar Pradesh government’s own legal stand about its special law against unlawful conversion.
Bharatiya Janata Party (BJP) leaders, including members of its government in Uttar Pradesh as well as other states, and other Hindutva constituents of the Sangh Parivar ecosystem have over the years used the phrase ‘love jihad’ to hint at a concerted conspiracy by Muslim men to convert Hindu women to Islam through the deceptive use of love. The phrase has often been used in political rallies, political events and press conferences.
However, while the saffron party has left no stones unturned to popularise the myth among public and the media, in legal terms, they have refrained from defining it. By using the phrase ‘love jihad’ repeatedly, judge Diwakar only reproduced the political views of the ruling dispensation.
Also read: UP Court Convicts Three For ‘Mass Conversion’ Based on Testimonies of BJP Man, Friend and Two Cops
In 2020, when the Adityanath government introduced a new law against unlawful conversions, it was brought in soon after he promised to bring an “effective law” against “love jihad”. The actual law, however, made no such reference and was neutral in its scope.
The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021, its original form in the shape of an ordinance and its amended version in 2024, do not make any reference to “love jihad”, which legally speaking, would amount to discrimination in the law.
In the 2021 Act’s statement of objects and reasons, the state government explained that the law was enacted due to numerous recent cases where ‘gullible persons have been converted from one religion to another by misrepresentation, force, undue influence, coercion, allurement or by fraudulent means.’
The Act further said, “The Constitution of India guarantees religious freedom to all persons which reflects the social harmony and spirit of India. The objective of this right is to sustain the spirit of secularism in India. According to the Constitution, State has no religion and all religions are equal before the State, and no religion shall be given preference over the other. All persons are free to preach, practice and propagate any religion of their choice.”
In 2021, while responding to Public Interest Litigations (PILs) filed in the Allahabad high court challenging the constitutional validity of its unlawful conversion law (then an ordinance), the government stressed that nowhere in the draft of the law had the term “love jihad” been employed.
“The ordinance is equally applicable to all forms of forceful conversion and is not confined to inter faith marriages. Hence it cannot be said that the ordinance is promulgated in the name of “love jihad”,” the government said in August 2021.
In one the PILs, petitioner Saurabh Kumar, a lawyer, had submitted that the Uttar Pradesh ordinance gave a license to the police authorities to “terrorise and harass the inter-faith couples who want to exercise their right to marry according to their choice” in the guise of “unfounded radical theories of ‘love jihad’.”
Similar objections were raised by the Association for Advocacy and Legal Initiatives Trust in its petition, in which it claimed that the unlawful conversion law “negates consent and robs a person of their agency and capacity to love.”
Responding to the petitions in the Allahabad high court, the state government pointed out that the term ‘love jihad’ had not been mentioned anywhere in the law, including its Statement of Objects and Reasons.
“The impugned Act does not indirectly discriminate against anyone. Testing for indirect discrimination, if the impact of the legislation is tested, it would be found that the legislation has a direct impact on terrorists and terror organisations which have been probed by the Anti-Terrorism Squad. The impugned act seeks to enliven the autonomy of all those individuals who have been forcefully and unlawfully converted from their religion to another,” the government submitted in the high court.
While the government has since 2020 been maintaining records of cases lodged under the unlawful conversion law, there is no separate record of crimes under ‘love jihad’, which remains a legally-unrecognised term.
In February 2020, the Union government told Parliament that ‘love jihad’ was not defined under any existing laws.
“No such case of ‘love jihad’ has been reported by any of the central agencies. However, two cases from Kerala involving inter-faith marriages have been investigated by the National Investigation Agency (NIA),” Union minister of state for home affairs G. Kishan Reddy said then in response to a question about such allegations in the southern state.
Reddy further said, “Article 25 of the constitution provides for the freedom to profess, practice and propagate religion subject to public order, morality and health. Various courts have upheld this view including the Kerala high court.”
Judge Diwakar’s controversial references to “love jihad” have also been severely criticised by legal experts. On September 30, while sentencing a Muslim youth, Aalim, in Bareilly to life imprisonment for allegedly raping his Hindu girlfriend by presuming a false Hindu identity, Diwakar ruled that it was a case of “love jihad.”
Notably, Diwakar referred to the term associated with right-wing propaganda and concluded that it was a case of “unlawful conversion through love jihad” even though the criminal case against Aalim and his father Sabir did not involve charges under the state’s unlawful conversion law. “Conversions through love jihad” were being carried out through a “syndicate” to “entrap Hindu girls in love,” said Diwakar.
The All India Lawyers’ Association for Justice (AILAJ), a pan-India organisation of lawyers, criticised Diwakar, describing his judgment as “communal, misogynous and paternalistic” and demanded action against him. AILAJ accused judge Diwakar of being “motivated by his prejudices against the Muslim community,” and force-fitting evidence to “suit his pre-conceived communal conspiracy theory of love jihad.”
“Importantly, this was a case about rape, not one of unlawful conversion, and yet the additional district judge Ravi Kumar Diwakar indulges in the bogey of conversion, ultimately even ruling that this is a case of unlawful conversion through love jihad. This conviction order is not only problematic for its right-wing views and its propagandising of anti-Muslim sentiments but for its questionable understanding of women’s consent,” said AILAJ.
Other lawyers said that the use of the phrase ‘love jihad’, which was a clear reference to a community, reflected religious bias in the judgment. Lawyer Zia Jilani, who represented some of the accused in a recent mass conversion conviction case in Uttar Pradesh, said there was “no such term as ‘love jihad’ in the legal terminology.”
“The judge is just promoting the ideology of the right-wing outfits, the interpretation that he has made in that judgment. He has completely exceeded his jurisdiction in interpreting the judicial mind as a judicial officer,” said Jilani.
Shashwat Anand, an Allahabad high court lawyer who argued against the unlawful conversion Act for one of the petitioners, said it was “well-settled by a catena of judgments of the apex court that a court’s judgment cannot contain the judge’s personal opinions on various subjects.”
“Similarly, advisory jurisdiction cannot be exercised by the court by incorporating advice to the parties or advice in general,” said Anand, highlighting that “a judge has to decide a case, not preach.”
In November 2019, the Uttar Pradesh State Law Commission headed by retired high court judge Aditya Nath Mittal had submitted a report along with a draft legislation to the state government recommending a new law to regulate conversions and control conversions at the behest of fraud, inducement, allurement, coercion and those done for the sole purpose of marriage.
Also read: SC Bars Citation of Allahabad HC Judge’s Remarks on Hindus Becoming a Minority Due to Conversions
Mittal’s draft, however, did not mention ‘love jihad’ or restrict the scope of conversions to Hindu-Muslim relationships. Speaking to The Wire from Aligarh where he offers free coaching to law students, Mittal argued that a trial court judge must confine himself or herself to the facts of the case. If it warrants, then certainly the judge may make observations but “if it is out of context, he cannot,” said Mittal, adding that the judge cannot take notice of any extraneous news or matter.
“If in the statement no such allegations are made, then the judge must refrain from commenting. He is not a social reformer,” said Mittal.
Explaining why he did not include the term ‘love jihad’ in his draft, Mittal said he considered ‘jihad’ to be a “pious action.” “If it is connected with love, marriage or sex, it has no relevance,” he said, adding that there was no need to legally define “love jihad”.
Mittal also pointed out that the allegations of unlawful conversion had also been levelled against Christians and not just Muslims.
This was not the first time that judge Diwakar made politically-charged comments in his orders. Earlier this year, the Allahabad high court expunged the controversial observations made by him in an order in which he had hailed chief minister Adityanath as a modern-day ‘philosopher king’ and blamed appeasement of Muslims by various political parties for communal riots in the country.
The high court said Diwakar’s comments were “unwarranted expressions containing political over-tones and personal views.”
“It is not expected from the judicial officer to express or depict his personal or pre conceived notions or inclinations in the matter. The judicial order is meant for public consumption and such type of order is likely to be misconstrued by the masses,” noted Justice Ram Manohar Narayan Mishra of the high court in March.