Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020 – An Observation
More than a month has passed since the state of Uttar Pradesh passed an ordinance for tackling the so-called menace of forced conversions also termed politically as “love jihad”. 14 cases have already come in where 51 arrests have been made and 49 of the accused are in jail. Although anti-conversion laws already existed in eight other states namely- Odisha, Madhya Pradesh, Arunachal Pradesh, Chhattisgarh, Gujrat, Himachal Pradesh, Rajasthan, Tamil Nadu and Uttarakhand. Compared to the laws passed in these states, the laws passed in Uttar Pradesh are more stringent and non-sensical.
Beginning with the statement and the object of the act itself. It aims to prevent the unlawful conversion from one religion to another religion and provides a legal method for converting. Ironically, while unlawful conversion is defined as conversion that is against the law of the land, this ordinance is the only piece of legislation that declares conversions unlawful within the state of Uttar Pradesh that did not have anti-conversion laws prior to this ordinance.
As per Section 3 of this Ordinance a person shall be held liable for converting or attempting to convert another person through the use of the practice of undue influence, coercion, allurement and by fraudulent means or even by marriage. While arguments can be made for punishing conversion through fraudulent and other unlawful means mentioned in the ordinance, the inclusion of marriage within the purview of this section goes directly against the liberty of a person to choose what household they want to marry into.
What makes matters worse however, is that unless a person who wishes to marry another from a another religion for example A, a Hindu girl decides to marry B, a Muslim man does not make a declaration sixty days in advance under Section 8 of the Ordinance to the district or additional district magistrate, the marriage itself would be held void by the family courts or any other courts that have the jurisdiction to try this case. Such developments of law not only infringe the personal liberty of a person but also contravenes the stance taken by the Allahabad High Court recently, in the case of Salamat Ansari vs the State of Uttar Pradesh[1].
Herein the court held that the right to live with any person irrespective of their religion is an intrinsic right to life and personal liberty. The court at the same time also mentions that it fails to see why the state should intervene and have objection in the relationship between two adults who are in the age of majority to live together since it falls under their right to life and liberty.
At the same time the court further supported the stance taken by the Supreme Court in Nanda Kumar vs State of Kerala [2] where the court mentioned that after attaining majority the individual has a right to make his own choice. Both the courts have also noted that it is the constitutional right of an individual to choose a faith as it is the “substratum” of individuality as the expression and freedom to make such a choice forms a key aspect of an individual’s right and privacy which is well substantiated upon in the K.S Puttaswamy judgement[3].
Apart from the subject of individual autonomy in deciding to marry or convert one’s religion the ordinance contains sections that make it very easy to misuse. For example as per section 4 the power to file a FIR not only lies with the aggrieved person themselves but also with the relatives of such person who are related by blood or marriage with this person. Such a provision is similar to the anti-conversion laws in Madhya Pradesh however, the parents of the aggrieved must take the permission of the court to file an FIR.
All such issues with respect to personal laws, the Special Marriage Act, 1958 has come out as a saviour for such couples facing these issues. The Allahabad High Court recently in Safiya Sulthana v State of UP.[4] The landmark verdict delivered by the Allahabad High Court removed the mandatory publication of notice under the Special Marriage Act, 1954. It mentions the issues arising out of the Ordinance. It is high time for the Judiciary to step in and address the major issues arising out of the law and rectify it for the benefit of the citizens.
[1] Crl. Mis. Writ Petition No- 11367 of 2020
[2] 2018 SCC OnLine SC 492
[3] Justice K.S.Puttaswamy (Retd) vs Union Of India, Writ Petition (Civil) No 494 OF 2012
[4] Habeas Corpus No. – 16907 Of 2020