UNFOLDING THE NARRATIVES OF UP RELIGIOUS CONVERSION ORDINANCE: BEYOND LEGAL TROUBLES
“A right of any major individual to marry the person of his/her choice is a fundamental right enshrined in the Constitution of India and the said liberty relating to the personal relationships of two individuals cannot be encroached by anybody irrespective of caste or religion.”
-Karnataka High Court in a decision dated 27.11.2020
INTRODUCTION
Amidst the controversial “Love Jihad” debate, the Uttar Pradesh Government passed the UP Unlawful Religious Conversion Prohibition Ordinance, 2020 making religious conversion for marriage a non bailable offence if affected by force, undue influence, misrepresentation, allurement or any other fraudulent means. The Ordinance provides that the burden of proving the otherwise will be upon the person converting or any other person who has facilitated the same. The punishment invited by the ordinance in case of any violation is a minimum of 1 year extended upto 5 years and a fine of Rs 15,000. However, in a special provision added to the ordinance, any such offence subjected upon a minor or a woman belonging to the SC/ST community would further invite a minimum imprisonment of 3 years extended upto 10 years and a fine of Rs. 25,000. Having said so, the ordinance also makes mass conversion a criminal offence and a conversion done by a female for the “sole purpose of unlawful marriage” will be null and void, having no validity in the eyes of law.
This came in the wake of a recent judgment passed by the division bench of the Allahabad High Court[i] which dealt with a writ of mandamus directing the State of UP not to arrest an inter faith couple facing an FIR with respect to their marriage. Priyanka and Salamat, a couple having attained the age of majority, belonged to Hindu and Muslim faiths and were married since August 2019 out of their will and consent. While upholding the right to live with a person of his/her choice irrespective of their religion, the High Court held that
“Interference in a personal relationship would constitute a serious encroachment into the right to freedom of choice of the two individuals. We fail to understand that if the law permits two persons even of the same sex to live together peacefully then neither any individual nor a family nor even State can have objection to relationship of two major individuals who out of their own free will are living together.”
The Court, while relying on a series of judgments also opined that it is the right of any person to choose the partner after becoming a major[ii] and this right is a valuable right in a constitutionally democratic society which cannot be violated by anyone.[iii]
However, to think that the judgment of the Allahabad High Court is the conclusive relief to the issue of inter faith consensual marriages is to live in a false reality. It was after 2 days of the passing of the judgment that the UP government passed an ordinance making religious conversion an offence, completely defying the observation of it’s own State High Court. Before going into the reasons as to the loopholes in the ordinance, one must ponder to think carefully on the following questions- Why is necessary for a state to bring up a new law on forceful conversion of marriage when we already have a relevant alternative statutory remedy available? Does the ordinance help the couples or call upon any further problems that they are already facing? Whether personal liberty of consenting adults to love overrides the state’s restrictions of bring up a law curtailing individual freedoms?
In one recent development, a division bench of the Delhi High Court had passed an order providing relief to an adult woman to reside with the partner of her choice, respecting her free will and accord.[iv] The court also went ahead in directing the police authorities to counsel the parents of the woman as they must not take law in their own hands. This very order came on the same day the UP government passed the abovementioned ordinance. With this being said, it is equally important to note here that the Indian judiciary in plethora of judgments have upheld an individual’s right to marry a person of his/her choice, to live together and marry out of their respective religious barriers.
ANTI CONVERSION LAWS IN INDIA VIS-À-VIS U.P. ORDINANCE
Freedom of Religion is one of the fundamental rights enshrined in the Constitution of India under Art. 25. However, the said right has been into a direct tussle with the anti conversion laws enacted by various State Governments in India. Currently there are 6 States that have anti conversion laws in force which include the States of Arunachal Pradesh[v], Chattisgarh[vi], Himanchal Pradesh[vii], Gujarat[viii] and Odisha[ix]. Apart from these, States of Rajasthan and Tamil Nadu also tabled their respective anti conversion laws in the state legislature which never got the promulgated by the Governor.
The recent U.P. religious conversion ordinance is a mirroring legislative piece having a mixture of provisions added under other state laws. One such common characteristic is the requirement of prior permission of District Magistrate which is a prerequisite under Gujarat, M.P. and A.P. laws. Sec. 8(1) of the UP Ordinance uses the word “shall” making it mandatory for the couples intending to change their religion before marriage to give a declaration to DM or ADM signifying their free will in doing so. Apart from this, Sec. 8(2) makes it mandatory for the religious convertor performing the conversion to give a prior notice in advance to the DM or ADM indicating details and place where the ceremony is to be conducted. This is also a requirement under A.P., Chattisgarh and Odisha state laws.
Sec. 9(1) of the ordinance also makes it mandatory for the converted person to send a declaration within a period of 60days to the DM where such person ordinarily resides. This declaration shall contain details and particulars regarding DOB, permanent address, present place of residence, earlier religion and date of conversion. This is identical to the laws of Gujarat and H.P.
The most contradictory question that arises from the above comparison is on the legal challenge of these anti conversion state laws. One might question, if the earlier state laws having same provisions are valid in the eyes of law and still into force, why should one question the present UP Ordinance? The answer can be evaluated on the basis of a significant judgment in the case of Rev Stanislaus vs. State of Madhya Pradesh[x] in which the constitutional validity of Odisha and MP anti conversion laws was challenged. The Court while upholding the constitutional validity of the state laws overturned the earlier judgment of Madras HC which apparently declared the law as unconstitutional. The Supreme Court held that although Art. 25 safeguards the freedom of religion however the right to propagate does not include a persons’ right to convert any other person into his/her own religion. The Court did not define the boundaries and extent of “right to propagate” but it held that propagation of religion simply means to share religious ideas with another person thereby terming it as “freedom of conscience”. However, the horizons of the judgment are very restricted as it considered mainly two issues, namely the right to propagate religion and the competency of state legislature to enact such legislations to which the Court held that such laws fall within the exception of “public order” and hence, state legislature is well within the competency to promulgate laws under the same.
In another important and relatively recent judgment, the provisions of HP Freedom of Religion Act, 2006 and Rules of 2007 were challenged in the case of Evangelical Fellowship of India v. State of H.P[xi]. In this case, a division bench of HP High Court partially struck down the Act by holding that the State law cannot ask any intending person to disclose the details of conversion in advance to the DM. The Court while relying on the Delhi HC judgment in the case of Pranav Kumar Mishra v. Govt of NCT of Delhi[xii] held that “A person not only has a right of conscience, the right of belief, the right to change his belief, but also has the right to keep his beliefs secret. No doubt, the right to privacy is, like any other right, subject to public order, morality and the larger interest of the State. When rights of individuals clash with the larger public good, then the individual’s right must give way to what is in the larger public interest.”
The challenges to the anti conversion laws in India face a roadblock before Indian courts due to the judgments like Rev Stanislaus. However, given its restricted interpretation of right to propagate religion, there is a greater need for the Indian judiciary to reconsider it in the light of historical judgments like right to privacy, freedom to love (Navtej Johar) and other decisions on right to choose and marry partner of choice, live in relationships etc. The reason is mainly because the constitutional rights and freedoms have been transformed by the judiciary to give life to even those ideas which were pressed in the mud since years. To take an example, the HP High Court’s judgment in 2012 adjudicated upon the issue of right to privacy by considering it in the light of Govind v. State of MP however, if that would be the case today, Indian judiciary has much wider scope in reconsidering the anti conversion laws and even the very strict test of Rev Stanislaus.
SHORTCOMINGS OF THE UP ORDINANCE
Let us now look at some of the issues related to the ordinance.
1. Already existing alternative statutory remedies: The issue at hand concerning the law related to inter faith marriages is not new and is governed by Indian Penal Code, 1860, Indian Contract Act, 1872 and other relevant special statutes dealing with marriages including the Special Marriage Act, 1954. The Special Marriage Act. 1954 which provides for a requirement of a notice of intended marriage under Sec. 5. According to the said provision, the intended inter faith couples need to give a notice period of not less than 30 days to the DM whereas Sec. 18 legitimizes the status of children born out of inter caste marriage registered under the Act. It also provides that such children shall be entitled to succession over their parents’ property.
Sec. 13 of the Hindu Marriage Act, 1955 provides conversion to a different religion as one of the grounds in granting the decree of divorce. The Indian Penal Code makes abduction, kidnapping or inducement of a woman to compelling her for marriage a criminal offence.[xiii] As far as the point of conversion through coercion[xiv], undue influence[xv], fraud[xvi], misrepresentation[xvii] etc. is concerned, any consent obtained by the abovementioned factors is not a valid consent. Therefore, in the presence of already specific legislations that are doing enough justice in tackling the issues at hand, the need of promulgating an ordinance was not required. Having said that, the legislature is always free to amend and modify the existing laws in the interest of general public and therefore, the more legally safest option for better transparency is to strengthen the Special Marriage Act rather than implementing conflicting state laws on the same lines.
2. Requirements of advance notices as a tool of persecution of intending couples: The ordinance makes it mandatory for intending person to communicate the willingness to convert to the DM by serving a notice of two months before the conversion failure of which the person shall be imprisoned for minimum 6 months extended upto 3 years and a fine of Rs. 10, 000. It also mandates the religious convertor to give a one month advance notice to the DM carrying a much greater punishment. These preconditions of conversion notices give ample of details of the willing couples out in the public well in advance. The ordinance also has a provision for post conversion notice within 60 days by converted person. Not to mention, these notices are much detailed as compared to the notice under Special Marriage Act. These will pose as a great threat for couples in terms of increasing incidents of honour killings, concern for which was already noted by the Allahabad High Court order and by the Supreme Court in the Shakti Vahini case. This two months time duration provides ample of opportunity to the parents and relatives to find out about the inter faith marriage and stop the couple by use of force and other aggravated measures.
3. Lack of public consultation: Public consultation in the legislative process is one of the basic tenets of the functioning of a democratic nation. It not only ensures fairness in the legislative process but also takes into account the cumulative conscious of the target audience. This becomes worse in cases of State legislations where laws are passed with a specific objective targeting a particular group or class. For instance, as per the Census data of 2011, there are 199,812,341 women in the State of UP constituting a total of 47.71% of the total percentage.[xviii] This is the same in cases of SC ST Women, prior research on religious conversions, data on FIRs etc. The UP ordinance was passed without giving any details in the public domain, without consulting legal experts, civil liberties union representatives etc., without consulting the women of the State which forms a huge part of its population. In simple words, why wasn’t the rationale communicated to the general public or was given an opportunity to give their suggestions by way of public consultation? Perhaps, these are just a few of many questions involved in the issue.
4. Lack of statistical backing: the UP Ordinance is not backed by any statistical data or a well designed research plan. Neither is it done after a well constructed method of public consultation. This is also followed by other state conversion laws. These laws are implemented without taking the data of conversion history or about the impact or misuse of these laws in the hands of State machineries.
5. Excess of power given to the State authorities which might result in its abuse and other practical implications: The state anti conversion laws are mostly backed up on the basis of State’s own suited agenda and are therefore often used by the state authorities in a way best convenient to their cause. One such major fallout of the ordinance is its higher dependency on the grant of powers to the district authorities without any provision to implicate such authorities if they in any given case abuse their powers or act in excess of them. This makes the ordinance a single edged sword drafted to attack the inter faith marriages rather than aiming towards their protection, especially to those doing it with full consent.
The issues related to the Ordinance are not limited to the above-mentioned as the Ordinance is yet to be published by the State government. However, these might give us a greater perspective to look at the issue at hand. The ordinance so promulgated is based on conventional stereotypes against the men who might influence the women to get converted for the purpose of marriage completely negating the aspect of free will and choice to marry a person. It also drives with itself a preconceived ill thought that every conversion for marriage between two consenting adults is bad in the eyes of law despite the fact that the Indian judiciary have been consistent in upholding marriage rights of consenting adults in inter faith marriages. With this being said, I would end by quoting Hon’ble Justice A.K. Sikri:
“Choosing a faith is the substratum of individuality and sans it, the right of choice becomes a shadow. It has to be remembered that the realization of a right is more important than the conferment of the right. Such actualization indeed ostracises any kind of societal notoriety and keeps at bay the patriarchal supremacy.”
-Nanda Kumar v. State of Kerala (2018)
The author is an advocate enrolled in New Delhi and tweets at nupur_0111. She can be reached at nupurthapliyal013@gmail.com
[i] Salamat Ansari & Ors. v. State of U.P. & Ors. Crl. Misc. W.P. №11367 of 2020
[ii] Shafin Jahan v. Asokan K.M (2018) 16 SCC 368
[iii] NandaKumar v. State of Kerala (2018) 16 SCC 602
[iv] Ms. Parveen v. State of NCT of Delhi & Ors. W.P. (Crl) 1729/2020, Delhi High Court
[v] Arunachal Pradesh Freedom of Religion Act 1978
[vi] Chhattisgarh Dharma Swatantraya Adhiniyam 1968
[vii] Himachal Pradesh Freedom of Religion Act 2006
[viii] Gujarat Freedom of Religion Act 2003
[ix] Orissa Freedom of Religion Act 1967
[x] AIR 1977 SC 908
[xi] 2012 SCC Online H.P. 5554
[xii] W.P. © №748 of 2009
[xiii] Sec. 366 of the Indian Penal Code, 1860
[xiv] Sec. 15 of the Indian Contract Act, 1872
[xv] Sec. 16 of the Indian Contract Act, 1872
[xvi] Sec. 17 of the Indian Contract Act, 1872
[xvii] Sec. 18 of the Indian Contract Act, 1872
[xviii] https://www.census2011.co.in/census/state/uttar+pradesh.html
