UP Ordinance On Religious Conversion Is Being Misconstrued: Here's Why It Will Pass Judicial Scrutiny

Article 18 of the International Covenant on Civil and Political Rights (CCPR) impels its signatories including the Government of India and other treaty states to guarantee the right to freedom of thought, conscience and religion to all their citizens.

Further, the same article also directs the respective states to protect their citizens from coercive religious conversions and impose necessary limitations to ensure freedom of everyone.

The Constitution of India extends similar rights through a matrix of provisions in Part III of the Constitution.

In the recent weeks, the Governor of Uttar Pradesh, exercising its power under Article 213 of the Constitution, promulgated the Uttar Pradesh Prohibition of Unlawful Religious Conversion Ordinance, 2020.

This action of the UP government has attracted much ire from a section of the public, which includes politicians and activists associated with political parties opposed to the present dispensation.

Such contrarian voices perceive or claim to perceive this law as a blow to freedom of conscience and to interfaith marriages. Popularly recognised as the ‘Anti-love jihad law’, the ordinance has very little to do with interfaith marriages and by no means prohibits or restricts the same.

As is evident from the title of the ordinance, the present law is conceived with the objective of preventing unlawful religious conversions by unfair means.

In that context, and limited to the issue of such conversions alone, the ordinance includes a provision to nullify a marriage solemnised with the ‘sole purpose’ of unlawfully converting the bride or the groom to a different faith from their original faith.

A careful reading of most writings opposed to this ordinance reveals that their criticisms are based on mere assumptions, which are not founded or rooted in the text of the statute, and are based on the personal prejudices and biases of the critics.

We shall attempt to analyse such arguments on the touchstone of the mere text of the ordinance, rules of interpretation, the tenets established in our Constitution and the rule-based law laid out by the Supreme Court in precedents which may be of relevance to the issues at hand.

The UP government's law prohibits any religious conversion by use of misrepresentation, force, fraud, undue influence, coercion, allurement or marriage. Critics have argued that the definition of the term ‘allurement’ in the ordinance has a very broad scope, which includes gifts and other monetary and non-monetary gratifications. Their concern is that this may lead to penal actions if one person converts after receiving a gift from another in an ordinary course as well.

However, a similar issue was raised before the Supreme Court in Rev. Stainislaus vs State Of MP & Ors (1977) wherein provisions of conversion by inducement or allurement were deliberated in reference to the first two anti-conversions legislations of independent India.

The Supreme Court upheld the said scope of ‘allurement’ which is very similar to the definition of allurement in the current ordinance.

Interestingly, the Congress party, which is opposing the UP government’s ordinance, drafted the above stated independent India’s first anti-conversion law in the 1950s on the recommendation of the Niyogi Committee, which was finally enacted in 1968 as the The M.P. Dharma Swatantrya Adhiniyam, 1968.

Drawing parallels, we have seen how the legislatures and courts have broadly defined terms like 'bribery' or 'dowry' in other laws to keep a wider scope in lieu of covering a range of practices that might violate the very spirit of the legislation.

While analysing the issue of allurement and the fears raised by the opponents of this ordinance of its purported misuse or abuse, our attention must be drawn to the fact that any criminal or penal legislation is based on the concepts of intent, while any law — civil or criminal — is essentially premised on the principle of causality.

Therefore, the fear that a co-incidental and mere taking of a gift from a person of another faith before conversion can vitiate the conversion, is not only unfounded but also adventurous from the perspective of legal analysis.

The ordinance lays down a procedure to ensure that any conversion from one religion to another is only done with free consent.

Anyone who desires to convert, is required to give declarations to the District Magistrate at least 60 days before and within 60 days after the conversion.

Also, the Convertor (person who is facilitating such conversion) needs to give a notice of 30 days prior to the conversion. The authorities are required to conduct a routine enquiry regarding the cause of such conversion. This procedure is enforced to prevent conversions by unfair means.

It is alleged that this procedure is conceived to hinder interfaith marriages specifically. As a matter of fact, this procedure is applicable to any conversion by free will and does not prohibit interfaith marriage in any sense.

Even a person performing interfaith marriage may also convert before or after the marriage by making such declarations. The frailty of the argument that this ordinance and the procedure established under it, are aimed to prohibit interfaith marriages, is evident when one understands that the legislature of the Union has created a specific law to facilitate and govern interfaith marriages and under such law, there is no need for either adult getting married to convert from his/her faith.

The Special Marriage Act, 1954, is the law that holds the field for interfaith marriages and as such, the same are not prohibited nor intended to be prohibited under this ordinance.

So, practically, there is neither a requirement for couples to practise the same faith for solemnising marriage nor a requirement to convert after a marriage for its registration.

Meanwhile, the law is only equipped to invalidate those marriages which are performed with the 'sole purpose' of 'unlawfully converting' the bride or the groom. That too, with such causality being subject to judicial oversight under the laws and judicial system of this country.

Further, it is being pointed out that the burden of proof is on the accused. In many other penal legislations such as the Protection of Women from Domestic Violence Act, 2005 or Protection of Children from Sexual Offences Act, 2012, the burden of proof is on the accused.

It is considered that mostly victims in such cases are in a weaker or subservient position as compared to the accused. In this case, if a person’s religion is converted in any condition and a complaint is raised regarding the same, this minimum privilege is justified, considering that person on a weaker pedestal.

As a political rhetoric, the most vehement proclamation is that the law is communally spirited against minorities and particularly Muslims.

Nowhere in the ordinance, comprising of 14 sections and three schedules, the terms 'Hindu', 'Muslim', 'Christian' or 'Parsi' or 'religious majority' or 'minority' are used.

It is equally applicable on everyone irrespective of their religion or gender. Anyone who makes such an allegation on the legislators is actually admitting the existence of a pattern of strategic religious conversions in lieu of marriages — the pattern more commonly proclaimed as 'Love Jihad'.

Accommodating very diverse religious communities, India has a history of anti-conversion laws since British colonial times.

More than a dozen princely states including Kota, Bikaner, Jodhpur, Raigarh, Patna, Surguja, Udaipur, and Kalahandi enacted such laws. Foreign influences enhanced by colonialism necessitated these legislations within the princely states. Similarly, since Independence, nine states have enacted anti-conversion laws in the interests of public order, mainly to protect the underprivileged and primitive groups.

Is such a law needed in Uttar Pradesh as of now? The problem of forceful and deceitful conversions is that elephant in the room which will ferment public order, if ignored now. Irrespective of religion, it is not the prerogative but obligation of the state to frame preventive laws, even if one person’s freedom is at risk.

Examining the constitutionality of anti-conversion laws, the Supreme Court in Rev. Stainislaus vs State of MP (1977) observed “if an attempt is made to raise communal passions, e.g. on the ground that someone has been "forcibly" converted to another religion, it would, in all probability, give rise to an apprehension of a breach of public order, affecting the community at large.”

Perhaps, India is the only nation where anti-conversion laws are brought to protect the majority in the face of minority conversions.

In view of the recent ordinance, the opposition to it is more political in nature than constitutional.

The criticisms are based on mere presumptions, which are either unfounded or are a creation of the critics' own biases and agenda. This includes issues of interpretation, which have been settled by the Supreme Court on several instances.

It seems that if challenged before a competent court, the ordinance is all set to pass the tests of constitutionality. The freedom of conscience and religion will have no relevance if the law of the land fails to prevent coercive or deceitful religious conversions.

Tejasvi Surya is a Member of Parliament (Lok Sabha) and National President, Bhartiya Janta Yuva Morcha and Suyash Pande is an Advocate at the Supreme Court of India and graduate from National Law University, Raipur.