ANTI- CONVERSION LAWS- HOW FAR ARE THESE LAWS REASONABLE?

Pritha Lahiri, 2nd Year Law Student, Institute of Law, Nirma University

Introduction

Anti- conversion laws or Love Jihad is a term loosely used to refer to laws passed on religious conversion. More recently, it has come to the limelight after the recent ordinance that was passed by Uttar Pradesh state cabinet and the proposed draft in Madhya Pradesh which prevents religious conversion after marriage ultimately putting a bar on interfaith marriages in the country. The movement has received criticisms from across the country due to its paternalistic approach towards the personal life of a woman.

UP Ordinance on unlawful religious conversion-

The Uttar Pradesh Prohibition of Unlawful Religious Conversion of Religion Ordinance, 2020 which is commonly referred to as the ‘love jihad law’ by most Indians is a law enacted by the Government of Uttar Pradesh, India. The Uttar Pradesh state cabinet cleared the ordinance on 24 November 2020 following which it was approved and signed by state Governor Anandiben Patel on 28 November 2020.

The preamble to the Act states that it seeks to prohibit unlawful conversion from one religion to another by misrepresentation, force, undue influence, coercion, allurement or by marriage and for the matters connected with it.

Key provisions in the Ordinance are as follows:

  • Section 3[i]– This section prohibits conversion and attempt of conversion from one religion to another by the use of misrepresentation, force, fraud, undue influence, coercion, allurement or marriage. it also prohibits a person from abetting, convincing or conspiring such conversion.
  • Section 5[ii]– This section lays down the punishment for contravention of Section 3. It states that if any conversion takes place as a result of any Allurement, Gift, Gratification, Easy Money, Material Benefit, Employment, Free education in reputed school or better lifestyle, divine displeasure or due to Coercion, Fraudulent means, then such conversion shall be made punishable under Section 5.
  • Section 2(a)[iii]It defines the term “Allurement”. According to this section, allurement includes any gift, gratification, easy money or material benefit either in cash or kind, employment, free education in a reputed school run by any religious body or better lifestyle, divine pleasure or otherwise.
  • Section 12[iv]– Burden of Proof on the Accused – It states that the burden of proof as to whether a religious conversion was affected by misrepresentation, intimidation, undue influence, coercion, attraction, or by any deceptive means, or by marriage, rests with the individual who caused the conversion and where the conversion was facilitated by any person, with that other person.
  • Punishment- The ordinance makes conversion non-bailable with up to 10 years of jail time if it is carried out unlawfully. It further requires that religious conversions for marriage in the state of Uttar Pradesh have to be approved by a District Magistrate.

Flaws in the ordinance-

The proposed ordinance has been hotly debated across the country due to it being flawed and violative of the basic rights guaranteed by our constitution. The idea of enacting such an ordinance was proposed by Uttar Pradesh Chief Minister, Yogi Adityanath. It legitimizes a term which is nowhere defined under the existing laws and constitutes insult against inter-faith marriages and relationships in which one of the parties is a Muslim man. On one hand, it does not restrict interfaith marriage, on the other hand, no legal sanction has been given to political terms such as ‘Love Jihad’. The proposal has been criticized to be a vicious mix of patriarchy and communalism.

  • Violation of Article 21 of the Indian Constitution

Article 21 of the Indian Constitution[v]guarantees Right to Life and the personal liberty of a person within the territory of India. It states that except according to the procedure established by law, no person shall be deprived of his life or personal liberty. Over the years, owing to various precedents, several other rights intrinsic to human survival have come into the ambit of Art. 21.

Very recently in the landmark case of Justice K.S Puttaswamy v. Union of India[vi], the Hon’ble Supreme Court unanimously recognised privacy as a fundamental right guaranteed by the Constitution under Article 21 and went on to observe that:

“Privacy includes the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy often connotes the right to be left alone. It preserves human autonomy and respects the individual’s authority to manage essential aspects of his or her life. Personal decisions that control a way of life are intrinsic to privacy.”

Again, in the case of Salamat Ansari v. State of U.P.[vii], it was observed by the court that:

The right to live with a person of his or her choosing, regardless of their professed religion, is inherent in the right to life and personal freedom. Interference in a personal relationship would constitute a severe violation of the right to freedom of choice, to choose a partner and to live a dignified life, as provided for in Article 21 of the Indian Constitution.”

Similarly, in the case of Shafin Jahan v. Ashokan K.M.[viii] which is famously known as the Hadiya case, the Hon’ble SC emphasizing on individual’s Right to Privacy observed that:

The choice of a partner lies within the exclusive domain of an individual and is a part of the core zone of privacy, which is inviolable and the ability to make decisions relating to marriage is a part of a person’s liberty and individual autonomy and is guaranteed by the Constitution under Article 21.”

The ordinance passed by the Uttar Pradesh State cabinet focuses on the unlawful conversion of religion upon marriage. Its sole purpose is to prohibit what is commonly known as ‘love jihad’ which has no clear definition. Till date, the police, investigative agencies, and courts in the country have said that there is no evidence of such a thing as ‘Love Jihad’.

The ordinance has mixed up the patriarchal notion that family honour is bound in how a young woman behaves and by doing so it encroaches on the domain of private life of two individuals. The ordinance also states that the burden of proof lies on the person alleged to have converted into another faith to prove that no conversion has taken place.

Prominent women group the All- India Progressive Women’s Association (AIPWA) referred to the Ordinance as being a lethal attack on the freedom of Hindu women and their Constitutional right to make their own decisions. In doing so, the Ordinance clearly violates Article 21 of the Indian Constitution.

  • Shadow on India’s Secularism

India is known as a Secular country. It doesn’t have any official religion and all the people of different religions and faiths have the freedom to practise and follow their religion without any fear or domination.

Article 25 of the Indian Constitution[ix] guarantees to every person the freedom of conscience and free profession, practice and propagation of religion by stating that all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion subject to public order, morality and health.

In the case of Shafin Jahan v Ashokan K.M[x], it was observed by the court that “choosing a particular faith is intrinsic to a person’s autonomy without which the right of choice reduces to a mere shadow. A person’s right to choose a religion and marry is fundamental in her existence and neither the State nor “patriarchal supremacy” can interfere in such a decision. Constitution protects the ability of each individual to pursue a way of life or faith to which she or he wants to follow.”

The present ordinance prohibits the conversion from one religion to another religion by misrepresentation, force, fraud, undue influence, coercion, allurement or marriage. The word “marriage” used in the provision has not been defined anywhere in the Ordinance. Such loosely stated terms contradict Article 25 of the Indian Constitution by preventing the conversion of religion even by a consenting adult after marriage. It has ignored the principles laid down in the case of Hadiya. The whole idea of secularism and freedom to practice and propagate religion has gone for a toss since the enactment of this Ordinance and since then it has been a subject of criticism from people across the country.

Conclusion

It is therefore apparent that the laws framed against religious conversion or love jihad are unreasonable and violates the basic rights guaranteed by the Indian constitution. It is a blemish on the guiding principles enshrined in our constitution. In the 21st century where women and men stand on equal footing and all the religions are treated equally, such laws and ordinance demonstrate the age-old patriarchal beliefs and norms which impairs two consenting individuals from exercising their fundamental rights and further disturbing the secular environment of the country. It is high time that we emphasize more on the autonomy of an individual and not let other people enter into the domain of private life which is intrinsic to an individual’s privacy. Only then would the true meaning of human existence be realized.

REFERENCES:


[i] The Uttar Pradesh Prohibition of Unlawful Conversion of Religious Ordinance, 2020, § 3, No. 21, Acts

of Uttar Pradesh State Legislature, 2020 (India).

[ii]The Uttar Pradesh Prohibition of Unlawful Conversion of Religious Ordinance, 2020, § 5, No. 21, Acts

of Uttar Pradesh, 2020 (India).

[iii] The Uttar Pradesh Prohibition of Unlawful Conversion of Religious Ordinance, 2020, § 2(a), No. 21, Acts

of Uttar Pradesh State Legislature, 2020 (India).

[iv] The Uttar Pradesh Prohibition of Unlawful Conversion of Religious Ordinance, 2020, § 12, No. 21, Acts

of Uttar Pradesh State Legislature, 2020 (India).

[v] India Const. Art. 21.

[vi]Justice K. S. Puttaswamy (Retd.) and Anr. v. Union of India And Ors, (2017) 10 SCC 1.

[vii] Salamat Ansari and Ors v. State of U.P. and Ors, Criminal misc. Writ petition no. – 11367 of 2020.

[viii] Shafin Jahan v. Asokan K.M., 2018 SC 343. 

[ix] India Const. Art. 25, Cl. 1.

[x] Shafin Jahan v. Asokan K.M., 2018 SC 343.

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