Prohibition of Unlawful Conversion: A Constitutional Inquiry: Madhura Anand Vaidya

Prohibition of Unlawful Conversion: A Constitutional Inquiry

Author: Madhura Anand Vaidya

Chanakya National Law University, Patna.

ISSN: 2582-3655 

Abstract

Prohibiting religious conversions in order to prevent exploitation of weaker sections of the society from religious propagators is not a new phenomenon in India. Many such laws have been passed and even proved to be effective in cases where such conversions were made by fraudulent and dishonest means. However, certain nuances in these laws in present times demand inquiry from a constitutional perspective, so as to enable one to determine whether they are in conformity with the text of the constitution, and perhaps more importantly, fit into the vision of our constitutional framework. This paper discussed some of the concerns from a purely legal and procedural point of view, regarding the U.P. ordinance prohibiting religious conversions in certain cases. It inquires into whether, prohibiting persons from converting into another religion by a specific personal act, i.e., marriage, and putting additional requirements to the performance of such a personal act violates the rights of persons to life, liberty, privacy and also delves into the propriety of the restrictions that can be placed over these rights in the name of reasonable restrictions.

Introduction

In a democratic society founded on the rule of law, the system of checks and balances between the branches of government is paramount. It becomes incumbent upon the judicial branch to uphold the individual rights and liberties from assaults that may be caused by an overzealous executive or a majoritarian legislature. The current times are ripe with legislatures and executives forming laws that are challenged in front of the courts as unconstitutional. One must go beyond the rhetoric propagated in the popular media and political persons and tackle the subject matter of these laws in order to examine their validity, both in terms of the constitutional framework and on the test of the potential justness or misuse in their implementation. While the first consideration outrightly deems a law to be invalidated by higher courts, the latter must alarm the political society and compel it to reconsider its legislative priorities.

Laws prohibiting conversion by immoral means like fraud or coercion are not novel to Indian states. States with large tribal populations, such as Orissa, Himachal Pradesh and Madhya Pradesh have already passed laws to guard their underprivileged classes from being taken advantage of and being converted into other religions fraudulently. In the month of November, however, the state of Uttar Pradesh came up with an ordinance named as “Uttar Pradesh Vidhi Virudh Dharma Samparivartan Pratishedh Adhyadhesh, 2020”, which effectively prohibits[1] conversions which are deemed unlawful in the law. Considering the robust majority that the ruling fraction has in the state legislature, this ordinance has every chance of being turned into an Act. The constitutionality, necessity and nuance of this ordinance, then, is pertinent to be examined.

The Peculiarity of the UP Ordinance

The first question is of precedent. If there already are laws on these lines, then why does this particular ordinance deserve fresh scrutiny? The reasons are twofold, first related to the actual contents of the ordinance, while the second to the manner in which it was promulgated. Coming to the textual differences, this ordinance, among the laws in the state of Uttarakhand and Himachal Pradesh, is the only law that mentions the term marriage as a purpose of conversion that deems the conversion as unlawful, in addition to grounds like fraud, coercion, etc.

Another crucial distinction is that of not the offences created per se, but the degree of severity and punishment that they have been given. For instance, a comparison between the previous laws and this ordinance shows that the quantum of punishment has been drastically increased. Where the Orissa law prescribes[2] one year of imprisonment or fine up to five thousand rupees or both and Himachal Pradesh Act prescribes[3] imprisonment of two years or fine up to twenty-five thousand rupees or both, the Uttar Pradesh Ordinance prescribes[4] a punishment of five years of imprisonment and a mandatory minimum fine of rupees fifteen thousand, for same or similar offences. This escalation in retribution for the offence seems to be wholly unjustified, especially when one looks at the content of the ordinance. The only other comparable state Act that prescribes similar punishment[5] is that from the state of Uttarakhand, the validity of which is itself challenged[6] in the Apex Court.

While examining the constitutional validity of law there are only two grounds that are relevant: first, incompetence of the authority making the law and second, violation of fundamental rights. It is essential in the case of the second ground that, the law is not saved by any of the “reasonable restriction” clauses in part III of the constitution. Here, the term law is used in the sense of Article 13, which encompassed all forms of legislative and executive law-making, i.e., ordinances included.

Right to Privacy and Freedom of Association

First and foremost, the concern is that of privacy, as it is a fundamental right as a part of the right to life and dignity. This right is violated by the state machinery if it attempts to control a personal and private activity through a compulsion to act in a certain way or asks for disclosure of the same through mandating a declaration or notice. In the ordinance under consideration, both these control mechanisms are present. The first, through the prohibition and invalidation of marriages, deemed “unlawful” and second, through the requirement[7] of a prior declaration of the intention to convert, to be given to the District Magistrate.[8]

A similar concern can be seen[9] regarding the guidelines issued by the Rajasthan High Court in the Chirag Singhvi case, where the court, in spite of the particular state not having had a prohibition of conversion law, thought it correct to impose certain restrictions like notification to the DM, public notice and a waiting period of a week after conversion for the marriage. The ordinance has a similar requirement whereby the DM is to exhibit the declaration filed by the applicant for conversion on his office board.[10] Such a public notice is

It is true, that even the fundamental right to life and personal liberty, and by extension the right to privacy can be curtailed by a procedure established by law.[11] However, the validity of such a restriction has been clearly delineated in the recent K.S. Puttuswamy judgment of the supreme court. The triple test of legality, necessity and proportionality as laid down in Puttuswamy[12] has to be satisfied by the state before imposing any restrictions on the privacy of an individual. Meaning, the restrictions have to be put by a valid law, must be in order to provide for some social necessity and they must be proportionate to the object of the law, i.e., there has to be a reasonable nexus between the means and the ends to be achieved by the law.

This ordinance, however, satisfies only one of the limbs of the test, in that it was validly promulgated by the governor of the state. The two preconditions for promulgating as an ordinance by the governor are twofold, the first being objective and the second being subjective.[13] The first is that the legislature must not be in session and second is that the governor must be satisfied as to the circumstances that require the ordinance. Here, the first is apparently satisfied, and the second cannot be placed on the anvil of the objective test.[14] However, if such a requirement is not fulfilled, it is concluded that the ordinance making power is exercised only primarily to by-pass debate and discussion in the legislature and is as such unconstitutional.[15]

Regarding the second and third prong, there is copious doubt regarding the proportionality and necessity of the ordinance. The ordinance was justified by the executive of the state on the basis of mainly two factors. First is the purpose of curbing the “menace of Love-Jihad”[16] and second is the opinion of the Allahabad High court that voided marriages after religious conversions.[17] However, neither of these are valid grounds, for the simple fact of not being factually true. In spite of the harsh rhetoric by multiple politicians, the love-jihad phenomenon has not stood the test of investigations, and authorities including the Kanpur Special Investigative Team[18] as well as the National Investigative Agency[19] have refuted the claim. Regarding the opinion of the precedents, they are of no help either, as they were recently overruled[20] by a division bench of the same court as not being good laws. Therefore, it must be concluded that the ordinance does not stand the test of necessity or proportionality for violating the privacy rights of individuals.

Individual Autonomy and Freedom of Marriage

The apex court has explicitly and vehemently defended a person’s right to express his or her choice as regards to the partner in marriage as a guarantee under Article 19 and 21, as long as it is within the valid confines of the law.[21] Allahabad high court also recently upheld this right and stated that the right of a woman to live with the person of her choice irrespective of the religion of either of the parties is an intrinsic right and thus cannot be taken away.[22] In its decision, the court specifically referred to the familial and societal impediments to such unions and denied any standing to such actors, as long as the union was between two consenting adults.

The ordinance under consideration, however, puts laborious requirements and checks on the exercise of this choice when it comes to certain unions. Although a classification on the basis of religion is not patently illegal or violative of Article 14, making only the couples from disparate faiths the subjects of these requirements firstly, does not satisfy the reasonable nexus test[23], and secondly discourages people from entering into inter-faith unions, thus hampering social integration.

Another aspect of these onerous requirements is that of burden of proof being put on the person who has been or is to be converted, to prove that he or she was not doing so under any of the factors mentioned, i.e., by marriage or under the influence of allurement, force, etc.[24] Presumption of innocence and the burden of proof being on the person who asserts a fact[25] are fundamentals of criminal law and the law of evidence respectively. Both of these tenets are flouted by the reversed burden in the ordinance. It essentially insinuates that unless proved, all the marriages in which conversion of a party is involved are unlawful, illegal and thus should be held void.

Conclusion:

A myriad of objections has been raised to this ordinance, including arguments that it takes away the agency from women, reinforces parens patrie principle in a misplaced manner, and that vilifies a particular religion. However, all these arguments are based on the surrounding conduct of the enacting authority which, is not necessarily a relevant consideration while holding a law as invalid or unconstitutional. It is crucial to be noted that the law per se is neutral, both in the sense of religion and sex. It does not mention a particular religion as the vulnerable religion, neither does it specify women like the one getting converted. Thus, when in court, arguments on the validity of the law would be strictly limited by the letter of the law.

But, as is clear from the arguments presented, even when conceived in a religious and sex-neutral way, the law does not stand the test of constitutionality. It bases its purpose on extraneous and untrue grounds, imposes burdensome restrictions on the exercise of choices of individuals that should be personal to them and provides for problematic procedural and evidentiary requirements through a reversal of the burden of proof and public declaration.


[1] The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, No. 21, U.P. Ordinance, 2020.

[2] The Orissa Freedom of Religion Act, 1967, No. 2, 1968.

[3] The Himachal Pradesh Freedom of Religion Act, 2006, No. 5, 2007.

[4] The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, No. 21, U.P. Ordinance, 2020.

[5] The Uttarakhand Freedom of Religion Act, 2018, No. 28, 2018.

[6] Debayan Roy, Plea in Supreme Court challenges Uttarakhand Freedom of Religion Act and Uttar Pradesh anti-conversion ordinance as unconstitutional, Bar and Bench (Dec. 16, 2020, 7:59 PM), https://www.barandbench.com/news/litigation/strike-down-uttarakhands-freedom-of-religion-act-ups-anti-conversion-ordinance-as-unconstitutional-plea-in-supreme-court.

[7] The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, No. 21, U.P. Ordinance, 2020.

[8] The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, No. 21, U.P. Ordinance, 2020.

[9] Vasudev Devadasan, The Rajasthan High Court’s Religious Conversion and Marriage “Guidelines”: Some Privacy Concerns (Jan. 20, 2018),

https://indconlawphil.wordpress.com/2018/01/20/the-rajasthan-high-courts-religious-conversion-and-marriage-guidelines-some-privacy-concerns/.

[10] The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, No. 21, U.P. Ordinance, 2020.

[11] INDIA CONST. ART. 21.

[12] Justice K. S. Puttaswamy v. Union of India, (2017) 10 SCC 1.

[13] INDIA CONST. ART. 213.

[14] Lalit Narayan Mishra Institute of Economic Development and Social Change, Patna vs State of Bihar And Ors., 1987 (35) BLJR 33.

[15] Rustom Cavasjee Cooper vs Union of India, 1970 AIR 564.

[16] UP govt to bring strict law against ‘love jihad’, says Yogi Adityanath, livemint (Oct. 31, 2020, 7:18 PM),

https://www.livemint.com/politics/news/up-govt-to-bring-strict-law-against-love-jihad-says-yogi-adityanath-11604151525355.html.

[17] Priyanshi @ Km. Shamren v. State of U.P. and Noor Jahan Begum @ Anjali Mishra vs. State of U.P., Crl. Mis. Writ Petition No- 11367 of 2020.

[18] Alok Pandey and Mariyam Alavi, No Conspiracy, Foreign Funding in Inter-Faith Marriages, Say Kanpur Cops, NDTV (Nov. 24, 2020, 11:49 AM), https://www.ndtv.com/india-news/no-conspiracy-foreign-funding-in-inter-faith-marriages-say-kanpur-cops-2329238.

[19] Rajesh Ahuja, NIA ends Kerala probe, says there’s love but no jihad, Hindustan Times (Oct. 18, 2018 7:56 PM), https://www.hindustantimes.com/india-news/nia-ends-kerala-probe-says-there-s-love-but-no-jihad/story-wlpWR7BMNcdJHkb1MUso4J.html

[20] Sparsh Upadhyay, “Right To Choose A Partner Of Choice A Fundamental Right”: Allahabad High Court Says The Judgments Which Held “Conversion For The Purpose Of Marriage Only” Not Good Law, Livelaw (Nov. 23, 2020, 10:11 PM), https://www.livelaw.in/top-stories/right-to-choose-a-partner-of-choice-a-fundamental-right-allahabad-high-court-says-the-judgments-which-held-conversion-for-the-purpose-of-marriage-only-not-good-law-166287.

[21] Shafin Jahan vs Asokan K.M., AIR 2018 SC 357.

[22] Priyanshi @ Km. Shamren v. State of U.P. and Noor Jahan Begum @ Anjali Mishra vs. State of U.P., Crl. Mis. Writ Petition No- 11367 of 2020.

[23] The State of West Bengal vs Anwar Ali Sarkar, AIR 1952 SC 75.

[24] The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, No. 21, U.P. Ordinance, 2020.

[25] The Indian Evidence Act, 1872, No. 1, 1872.

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