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Uttar Pradesh’s “Love-Jihad” Ordinance: A Travesty of Secularism and Freedom to Conscience

Tanisha Sethi*

 

Abstract

On 24th November 2020, the Uttar Pradesh government drew power from Article 213 of the Indian Constitution to enact the Uttar Pradesh Prohibition of Unlawful Religious Conversion Ordinance, 2020. The Ordinance was signed by the State Governor and came into effect on 28th November 2020. The U.P. government’s overt aim through the Ordinance is to protect Hindu dominancy in the country by condemning Muslim men from marrying and religiously converting Hindu women. The law is tyrannical and illegitimate, for it undermines the women of our country and detriments the right of individuals to marry outside the faith. The Supreme and High Courts of the country have in many judgments held that the right to choice of faith and choice of life partner is an inviolable fundamental right[1] promised under the Constitution; nevertheless, the U.P. government has been persistent in its efforts to come up with a law, too obscure and unconstitutional it empowers law vigilantes and police officials to disrupt public order by terrorizing innocent inter-faith couples, making arrests without warrants, and presuming guilt attracting punishment of up to ten years until proof of innocence. The Ordinance is repugnant with the aims of the Indian Constitution; it must be annulled.

Keywords: Uttar Pradesh, Love-jihad Ordinance, marriage and religious conversion, reconversion, the burden of proof, procedural irregularities, secularism, democracy, constitutional validity.


Introduction

The Uttar Pradesh Prohibition of Unlawful Religious Conversion Ordinance proscribes and makes religious conversions a cognizable and non-bailable criminal offense on two grounds.[2] The first being religious conversions resulting from coercion, force, undue influence, allurement, and fraud.[3] These provisions should remain uncontentious, as it cannot be denied that a marriage devoid of free consent arising from the conditions mentioned above is unlawful and, therefore, must be declared void by law. However, the Ordinance’s language remains vague on terms like "allurement" and "undue influence". As per the Ordinance, "allurement" is described to include within its ambit “any gift or material benefit of cash or kind, or bestowing a better lifestyle”.[4] Interpreting this provision, if a man proposes to a woman of a different religion with a ring as is customary, or if a woman by free-will marries into a higher-class family practising a separate religion then, the Ordinance would have the power to suspend an interfaith marriage citing “allurement”. If a Muslim provided a non-Muslim with a copy of the Quran, the religious text of Islam, and upon reading it, if a person persuaded by Allah’s teachings converted to the religion out of free-will, then the conversion would be terminated on account of being allured by gifts. At the same time, the term “undue influence” is delineated as using one’s power or influence for persuasion.[5] That would mean that if Dalai Lama, the spiritual leader of Tibetan Buddhism, through his knowledge and influence, preaches the teachings of Buddha converting non-Buddhists into Buddhists, the conversions made out of free will would be annulled having taken place by “undue influence”.

Adding to the equivocal nature of the Ordinance is the bewildering usage of the word "or otherwise" under definitions of "allurement" and "fraudulent means", leaving a great deal to be desired. Although the Ordinance does not prohibit religious conversions made out of free consent, the ambiguity causes more injustice than justice, giving police officials unfair power to make arrests without warrants for acts that are not conspicuously prohibited by law. An actual instance of this happened in Uttar Pradesh when a Muslim boy walking home from a party with a friend, a Hindu girl, was harassed by a group of men for furthering the Hindutva insecurity of "love jihad", an alleged Islamophobic conspiracy by Muslim men to feign love to marry and convert Hindu women reducing Hinduism to a minority. Despite the Hindu girl expressing her free will, the boy was later arrested by police officials and kept in judicial custody for inducing the girl to elope to marry and convert her into a Muslim. The vague language of the Ordinance is leaving room for misuse, which is threatening Indian secularism.


Reconversion Under the Ordinance

It is further shocking that under Section 3 of the Ordinance, reconversion to one’s previous religion is not to be considered unlawful. The Ordinance remains silent on whether reconversion through coercion, force, misrepresentation, allurement or undue influence would remain unlawful. The Ordinance sends a dreadful message to society to be intolerant towards conversions to other religions but is tolerant towards conversion to one’s original religion even if devoid of free consent. The State government has backed the law as “Freedom to Religion”, claiming its application on every individual irrespective of religion or sex, safeguarding people from being coerced into converting. But, it is predictable for a BJP-led State government to exclude forceful reconversion from criminal liability. With over 70% of the Indian population comprising Hindus’, the Modi government fears the day when religious conversions would gradually drive Hinduism in India to a minority. The Ordinance does not explicitly mention any religion, but it is palpable that to protect Hindu dominancy, reconversion to previous religion remains legal.


Religious Conversion and Marriage

The second and draconian ground for the criminal conversion is a religious conversion done for marriage or marriage between an interfaith couple for religious conversion. The Ordinance on face value does not discourage interfaith marriage, as they are legally permitted under the Special Marriages Act, 1954. However, the Special Marriages Act does impose undesirable conditions and consequences on the parties. Under the Act, the parties are required to submit a notice of their nuptials to the respective district's Marriage Office.[6] The Marriage Officer is then obligated to make copies of the notice to publicize it at the office’s notice board to invite any objections until the expiry of 30 days from the day of publishing.[7] The notice’s publication includes personal details, summons harassment, and public ignominy for the couple. This is an outright infringement of their right to privacy and personal liberty to marry a person of one’s choice, as enshrined under Article 21 of the Constitution. This provision of the Special Marriages Act is unconstitutional, and this finds support from the Supreme Court judgment in Lata Singh v the State of U.P., where it held, a person of marriageable age enjoys the fundamental right to marry whosoever they like. If people object to the couple’s marriage, the maximum they can do is cut-off social ties with the couple but cannot practice violence or harassment against the married couple. The Allahabad High Court has also, in its recent landmark judgment, Salamat Ansari v.the State of U.P., opined, Right to live with a person of his/her choice irrespective of religion is intrinsic to right to life and personal liberty.” The provision of the Special Marriages Act thus blatantly violates fundamental rights; however, it remains intact.

To avoid the Special Marriages Act’s ramifications, one party to a marriage converts into the religion of the other party to facilitate legal benefits after marriage. Moreover, by making religious conversions done for the sole purpose of marriage unlawful, the ordinance discourages interfaith marriages. The Uttar Pradesh Chief Minister Yogi Adityanath has been vocal in his Jaunpur rally that the law was meant to curb “love-jihad”, a Hindu daughter’s marriage to a Muslim family. Punishment for illegal conversion under the law is one to five years but if the victim is forced or deceived into conversion is a minor, a person of Scheduled Caste or Tribe, or a woman, the offender is punished with a term extending from two to ten years. The law invalidates a woman’s agency by marginalizing them into an unwary, guileless section of the society in need of protection, thereby subjecting them to patriarchal control.


Lawful Conversion Under the Ordinance

As per the Ordinance, lawful conversion requires a converter to submit notice to the district magistrate declaring that they convert without any force or coercion. To this declaration, the magistrate will enquire into the real reason for conversion. This subjects a person’s religious decisions to the whims of the State for lawful approval and goes against the freedom of conscience and freedom to profess, practise, and propagate any religion, which is inscribed in Article 25 of the Indian constitution. It further violates Articles 16 and 18 of the Universal Declaration of Human Rights (UDHC). Article 16 UDHC grants all persons of legal age the prerogative to marry and build a family with a partner of their choice without any restriction to race, nationality, or religion, and Article 18 UDHC grants everyone the right to change their religion.

India enshrines secularism in its constitution, and it is neither pro-religion nor anti-religion. Matters of faith and belief are the personal domain of Indian citizens not subject to the States’s control. The country’s apex court has recognized every individual’s right to love and the right to faith. In Shafin Jahan v Ashok K.M. (2018), the Court held, “Matters of belief and faith, including whether to believe are at the core of constitutional liberty…Matters of dress and food, of ideas and ideology, of love and partnership are within the central aspects of identity…Choices of faith and belief as indeed choices in matters of marriage lie within an area where individual autonomy is supreme. Neither the State nor the law can dictate or limit the free ability of every person to decide on these matters”. Thus, in a country where each individual is accorded with the autonomy to practice any religion and to freely chose and married a partner, their personal decision to change their faith, be it for marriage or any other reason unless made out of duress, should not be of concern to a secular State. The Ordinance is outlawing what the Constitution treasures for every citizen.


Burden of Proof

The Ordinance infringes on the legal principle of presumption of innocence. In criminal law, every accused has the legal right of being considered innocent until proven guilty beyond a reasonable doubt. Due to this legal principle, the burden of proving the guilt of the accused lies with the prosecution. However, Section 12 of the Ordinance shifts the burden of proof upon the accused to prove their innocence, that they have not caused the victim's religious conversion by force, misrepresentation, coercion, undue influence, allurement, or fraud. A law that presumes guilt sentencing one to imprisonment that can extend up to a decade, unless proven innocent, is dangerous to public order.


Procedural Irregularities

The Ordinance is flawed in law; however, it has no basis in law as its promulgation goes against the procedure established by law. It was put into effect through Article 213 of the Constitution, which empowers the Governor of a State to draw ordinances when the legislature is not in session. While promulgating the Ordinance, the article explicitly states that the Governor should feel satisfied that “circumstances exist which render it necessary to take immediate action”. The State’s necessary circumstance was the increase in the cases of forced religious conversions for marriage or “love-jihad”, as previously mentioned in the article. However, an investigation by the U.P. police into the instances of “love-jihad” evinced that most inter-faith Hindu-Muslim marriages took form out of the woman’s free will, proving the absence of any emergency circumstances. To buttress the Ordinance, Chief Minister Yogi Adityanath mentioned two Allahabad High Court case,s namely Priyanshi Km. Share and Others v. the State of U.P. and Noor Jahan Begum and Others v. the State of U.P.,[8] which held religious conversions for the sake of marriage to be void. This decision is unconstitutional, as this article elucidates. The Allahabad High Court in Salamat Ansari V. State of U.P. has also criticized these two precedents holding them to be not fair laws.


Conclusion

Every Bill, before getting the Governor’s or President’s assent, undergoes debate and discussion in the Legislative Assembly/House of Parliaments on whether it should be passed. An Ordinance is issued when the Parliaments are not in session. The Uttar Pradesh government promulgated the law as an Ordinance stating emergency circumstances only to avoid debate and discussion in the Parliament. The U.P. law is a violation of democracy for the way it was established. It is in addition gravely sexist for weakening a woman’s authority and representing men as deceitful lovers, thus violating the principles of Article 14 and 15 of our constitution. The law intervenes on a gamut of other constitutional rights like right to privacy, conscience and liberty; threatening the peace of innocent couples with violence from religious fanatics who eschew secular marriages.

However, every Ordinance promulgated by the President or Governor under Article 123 and Article 213 respectively must be introduced as a Bill and approved by the Parliament within six weeks of reassembly or they cease to operate. On 25th February 2021, the Uttar Pradesh assembly had passed the controversial Bill giving it the status of the Act. The U.P. law is a threat to secularism, fundamental rights, and public order. The Indian Judiciary, entrusted with the authority of Judicial Review, must scrap the U.P. anti-conversion law to fortify the doctrine of the Constitution.



[1] Shafin Jahan v. Asokan K.M 2017 SCC OnLine SC 1259 [2] The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, § 7, No. 21, 2020. [3] The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, § 3, No. 21, 2020. [4] The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, § 2(a), No. 21, 2020. [5] The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, § 2(j), No. 21, 2020. [6] The Special Marriages Act, § 5, No. 43, Acts of Parliament, 1954. [7]The Special Marriages Act, § 6, No. 43, Acts of Parliament, 1954. [8] Noor Jahan Begum and Others v. the State of U.P.; 2014 SCC OnLine All 11820


 

[*] Tanisha Sethi is an undergraduate student from Jindal Global Law School, Sonepat. For any discussion related to the article, she can be contacted via mail: tanishasethi2001@gmail.com

Preferred Citation – Tanisha Sethi, “Uttar Pradesh’s “Love-Jihad” Ordinance: A Travesty of Secularism and Freedom to Conscience", Syin & Sern Law Review, Published on 12th March 2021.

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