Uncovering the Covered: Section 69 BNS and the Politics of Identity
- Hindu College Gazette Web Team
- Jul 28, 2025
- 10 min read
Updated: Jul 30, 2025
Change is the only constant, and as the social, political, and economic dynamics evolve, so must the laws that govern them. The new criminal laws have been implemented from 1st July, 2024, which override the Indian Penal Code (IPC) of 1860 to the Bhartiya Nyaya Sanhita (BNS), 2023, to change the philosophy of the Criminal Justice System from punitive and retributive justice to preventive and reformatory justice. The Union Home Minister stated that a colonial law cannot efficiently deal with the post-colonial society and offences. The BNS, which replaces the IPC, is expected to enact separate consolidated provisions under Chapter V titled “Offences against women and children”. However, it is equally condemned by various legal experts and scholars for being too ambiguous and prone to misuse, impracticalities and highly contentious interpretation.
The point of discussion of this article is Section 69, BNS which reads as when there is a sexual intercourse with a woman and the consent is obtained by deceitful means including false promise of marriage, employment, promotion, concealing the identity and so on, shall be punished with imprisonment up to 10 years along with a fine. This provision is profoundly criticised on the grounds of assuming women easily get seduced, lured, patriarchal, conservative, naïve, lack basic rationale and so on. However, in a case honourable Apex Court held that assuming a man is always a perpetrator of sexual offences or capable of deceiving is such a myopic view. On breaking down, “false promise of marriage” and “deceitful means” are the two terms that are the soul of this provision. There is a thin line difference between false promise of marriage and a mere breach of promise, which can be understood as, if the intention of the accused is not to marry from the very beginning that comes under the ambit of the term ‘false promise of marriage’, however if there is any subsequent impossibility that makes marriage impossible, then it is breach of promise, which can be a civil offence but not criminal, this has been discussed by Honorable Apex Court in plethora of cases.
The objective of this article is to provide in depth analysis of the term “deceitful means” with a special focus on “Marriage by Suppressing the Identity” specifically the inherent intent of targeting interfaith marriages or cases of so-called Love Jihad, how this section is politically motivated and the enshrined bias towards a particular minority religion, constitutionality and its criticism and finally the conclusion and way forward.
Marriage By Suppressing One’s Identity: Legal and Political Conundrum
The term ‘concealment of identity’ or ‘masking one’s identity to marry a woman’ under section 69 BNS is open to interpretation and, deep down, clearly shows the government’s intent to penalise interfaith marriages. Over the last few decades, the expression “Love Jihad” has been continuously used for interfaith marriages. The right-wing political activists backed by the ideology of “Hindutva” are profoundly using the term love jihad, in the context that Muslim men knowingly deceive naive Hindu women, trap them in the name of love, marry them and have children to increase their population.
It is indisputable that from time immemorial, religious disharmony and communal differences have been used for political uprising against the government. India, being a diverse nation in almost every aspect, be it language, culture, religion, demographics, etc, some political parties and lobbying groups try to widen these diversities rather than uniting them, just to make out something beneficial for themselves. The concept of Love Jihad is prominently encouraged by the current BJP government and Hindutva groups, including RSS and Bajrang Dal. BJP-dominated states like Uttar Pradesh, Haryana, Madhya Pradesh, Himachal Pradesh, and Gujarat have passed anti-religion conversion laws popularly known as ‘love jihad’ laws, to criminalise interfaith marriages and subsequent religious conversions. The BJP and Hindutva organisations justified the concept of 'Love Jihad' by mobilising Hindus around the age-old fear of becoming a minority. Since the 2021 Census has been delayed for over five years, the absence of reliable census data enables propaganda to flourish unchecked, transforming political myths into legislative realities. This narrative has taken deep root, especially in regions where love marriages and inter-caste unions still face social stigma, and where even honour killings are at times socially justified. As a result, the idea of ‘Love Jihad’ has found support among certain sections of the Hindu community, influenced by longstanding cultural fears and political messaging. A survey by India Today in 2021 found that 54% of extreme believers of the concept of “love jihad” conspiracy theory to convert naïve Hindu women to muslims, and 60% of them were in favour of laws against it.. This gave legitimacy to the government to transform a communal ideology of love jihad into legislative action.
In furtherance of the above, the parliament of India incorporated this very provision under section 69 of BNS in the disguise of the term “marriage by suppressing identity” and severely penalised with rigorous imprisonment of up to 10 years with a fine. Although not explicitly mentioned, as that would lead to unwelcome criticism by Human Rights NGOs, International Media and other organisations. UNHRC urges Indian states to abolish their anti-conversion legislations as they illegitimately criminalise willful religious conversions and interfaith marriages under suspicion of forced conversion.
Therefore, there is nothing wrong in saying that political ideology propaganda has been given the legislative colour under Section 69 of BNS.
Constitutionality of Section 69 BNS penalising the term ‘marriage by suppressing identity’
India, being a traditional society, is bound by its cultural norms and mindset, which prohibit inter-religious marriages, and the individuals who go against this societal norm have to face dire consequences, which extend to honour killings as well.
In 2020, a case was reported where an interfaith marriage between a muslim man and his Hindu lover was prevented from concluding by the Uttar Pradesh police. Similarly, in another case, a pregnant interfaith married couple were detained and separated, which caused her miscarriage in the shelter home. Moreover, another reported incident where a mother of a 22-year-old woman lodged a complaint about kidnapping of her daughter by a Muslim man and was converted to Islam and married against her will, this entire complaint was lodged on mere suspicion that she “felt” Muslims were “the type” to engage in ‘love jihad’.
These case studies show the dire repercussions of interfaith marriages, even though in a plethora of judgments, the apex court has reiterated Right to marry a partner of their own choice is a fundamental right under Article 21. In Common Cause (A Regd. Society) v Union of India, it was held that a person has the right to bodily autonomy over every aspect of life, including the ability to decide: what to wear, eat, think, speak, whom to love or marry, etc. Further in K S Puttaswamy v Union of India it was reiterated that matters close to one’s personal life, like marriage, family, procreation, sexual orientation, etc, are all integral to the individual’s dignity.” Moreover, in Lata Singh v. State of U.P., this court upheld that a major individual can marry as per their free will, i.e. whomever they like. Further, in another case, it was reaffirmed that the freedom of marriage of one's free will is an inherent part of one's life, thus protected under Article 21 of the Constitution.
One of the landmark cases in this regard was of Shafin Jahan v. Asokan K.M., it was upheld that the Constitution recognises “personal liberty” and “individual autonomy,” enabling women to choose a partner. Thus, “neither the state nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters.”
Moreover, the right to marry a partner of their own free will is not merely a right recognised under the domestic law of India; rather, it is recognised internationally. “Article 16 of UDHR underpinned the fundamental importance of marriage as an incident of human liberty. Which reads as men and women of the age of majority entitled to equal rights as to marriage, during marriage and at its dissolution with the free and full consent of the intending spouses without any limitation on grounds of race, nationality or religion, entered into only. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State.”
Conflict Between Section 69 BNS and the Special Marriage Act, 1954
Section 69 of the BNS, 2023, overlaps with the objectives of the Special Marriage Act, 1954 (SMA), a secular law enacted to legalise interfaith and inter-caste marriages without any religious conversion. Under Sections 5–7 of the SMA, couples must give a 30-day public notice of their intent to marry, which is a matter of outrage by various state and non-state actors. They often criticised these provisions for violating privacy and exposing couples to community pressure, threats, or honour-based violence. Section 69 BNS aims to criminalise “suppressing identity” in relationships, which ultimately places interfaith couples in a legal dilemma, which is a) if the intended interfaith couples publicly disclose about the same as required under SMA, they may face societal retaliation. and b) if they avoid disclosure to overcome the first issue, they can be prosecuted under Section 69.
This conflict defeats the secular intent of the SMA and infringes on the constitutional right to marry a partner of one’s choice. Thus, what begins as a protective provision may, through its vagueness and overlap with SMA procedures, turn out to criminalise consensual interfaith marriages.
How is the term ‘marriage by suppressing identity’ prone to being weaponised?
Charu Gupta, a historian at the University of Delhi, in her work "The Myth of Love Jihad” stated that "When a Hindu man marries a Muslim woman, it is always portrayed as romance and love by Hindu organisations, while when the reverse happens, it is depicted as coercion"
The term “marriage by suppressing identity” is prone to be used as a weapon rather than a shield; the ambiguity of this term invites false complaints motivated by family pressure, post-breakup vengeance or communal bias cases. Even in consensual interfaith marriages, the interested party (parent or guardian), as done in the hadiya case can file a criminal complaint against the Muslim man as per Section 2(y) of Bhartiya Nyaya Suraksha Sanhita, which defines the expression ‘Victim’ not only a person who incurred any loss or injury, but also includes their guardian or legal heirs. Further, in the case it was upheld that the term ‘victim’ includes all those who are direct sufferers, be it physically or emotionally.
The concept of love jihad is not just detrimental to Muslim men but also to the Hindu women, these laws criminalise lawful and consensual interfaith marriages, infringes Article 14 and 21 of the Constitution of India due to overbreadth and potential misuse, forms assumption that women are often infantilising, considered as gullible and incapable of making informed choices about relationships. It portrayed them as passive victims of deceit rather than as autonomous agents with full sexual and emotional knowledge. This paternalistic approach reinforces the patriarchal notions that women require protection from "outsiders". Moreover, these laws confer the burden of proof on the accused, contrary to the general rule that the prosecution establishes that the accused committed that particular offence.
Therefore, Section 69 BNS replaces colonial morality with communal morality, masking moral policing as legal protection, and turning female autonomy into a battlefield for identity politics.
Conclusion
The philosophy of Section 69 of the BNS, 2023, is to protect women from sexual exploitation based on deceit; indeed, it is a progressive legislative action to tackle genuine cases. This Section could be viewed as an effort to safeguard women from evolving forms of psychological coercion that traditional laws were ill-equipped to address. However, even with fair intentions, the provision’s current framing leaves room for overbreadth, selective prosecution, and misuse influenced by communal bias. However, this must be evaluated against the contemporary political and social backdrop of India, where any “deceit” in sexual relationships, especially when individuals are from different religious communities, is increasingly being racialized and communalised and in many instances, to weaponised under the guise of ‘protection’.
Moreover, the conflict between the Special Marriage Act, 1954 and Section 69, BNS, needs to be addressed through legislative or judicial interventions. It is pertinent to emphasise that there might be cases of forceful conversion or love jihad; however, not every interfaith relationship is a crime, consensual relationships where no deceit is involved are not punishable and mere conversion or interfaith love is not an offence under this section. To attain the very objective of this section, reform, not repeal, is the way forward. Clearer definitions, stronger judicial safeguards, and the removal of communal undertones are essential to prevent misuse. Police must take utmost caution and abide by the guidelines related to arrests as laid down in Arnesh Kumar vs. State of Bihar. Only then can Section 69 truly serve its protective purpose without becoming a legislative tool for moral policing and identity politics.
By Anuradha
Anuradha is a 3rd-year B.A. LL.B. (Hons.) student at Guru Gobind Singh University, Dwarka Main Campus, Delhi.
References
Section 69, BNS (2023)
Vimal Vijay v. Union of India & Ors. [WP(C) No: 31598/ 2024] https://www.verdictum.in/court-updates/high-courts/vimal-vijay-v-union-of-india-ors-wpc-no-31598-2024-rape-false-promise-to-marry-1551006
Deepak Gulati v. State of Haryana (2013) 7 SCC 675; Prashant Bharti v. State (NCT of Delhi) (2013) 9 SCC 293, etc.
Bharti Mishra Nath, ‘Opinion: Will Proposed Criminal Laws Curb Marriages Through Deceit?’ (NDTV, 23 November 2023)
Ryan Bishop and Kim Knights, ‘The Securitisation of Love Jihad’ (2021) 12 Religions 1074
David James Strohl, ‘Love Jihad in India’s Moral Imaginaries: Religion, Kinship, and Citizenship in Late Liberalism’ (2019) South Asia: Journal of South Asian Studies
Karvy, Insights. 2021. Mood of the Nation Poll January 2021
United Nations Human Rights Council (UNHRC) Universal Periodic Review of the Republic of India
Apporvanand, Al Jazeera, 15 January 2021, “India’s ‘love jihad’ laws: Another attempt to subjugate Muslims”,
S Raju, Hindustan Times, 13 December 2020 “Woman detained under UP’s new law against ‘love jihad’ suffers miscarriage”
Mariyam Alavi, “With No Credible Evidence, ‘Love Jihad’ Cases In Kanpur Crumble”, NDTV, 28 November 2021.
Indian Young Lawyers Association & Ors. vs. The State of Kerala & Ors (2019) 11 SCC 1, Shakti Vahini v. UOI, AIR 2018 SC 1601, K S Puttaswamy v UOI, 2017 (10) SCC 1, etc.
Article 21 of the Indian Constitution
Writ Petition (Civil) No. 215 of 2005
Constitutionality of Anti-Conversion Laws “Citizens for Justice and Peace v State of Uttar Pradesh” (scc observer)
Lata Singh v. State of U.P., MANU/SC/2960/2006
Smt. Shakti Vahini v. Union of India and Others MANU/SC/0242/2014
MANU/SC/0340/2018
Article 16 of the UDHR.
Special Marriage Act, 1954
‘Love Jihad’ is an Islamophobic Campaign: Why Honour is about Controlling Women's Bodies
Ram Phal vs. State & Ors, 2015 (151) DRJ 562
a good read