Politicising Faith And Marriages: Uttar Pradesh´┐Żs New Anti- Conversion Law
The secular structure of the Indian State and the liberty of faith and
worship guaranteed to every citizen and enshrined in the Constitution of India,
have been gradually corroded by a consistent process of dilution. The recent
move of the UP Government towards invalidating religious conversions intended
solely for the purpose of marriage through the Uttar Pradesh Prohibition of
Unlawful Religious Conversion Ordinance, 2020 is a striking example of this.
The ordinance was passed by the UP State Government on 24th November 2020 and
received the assent of Governor Anandiben Patel on 28th November 2020. This
enactment is an unabashed advocation of the anti-Islamic stance of the BJP
Government in the state led by Chief Minister Yogi Adityanath and has been
glorified as a law to combat ´┐ŻLove Jihad´┐Ż, a conspiracy theory holding Muslim
men as culprits for enticing non-Muslim, particularly Hindu women into marrying
them only to induce them into adopting Islam. Following the same footsteps, the
states of Uttarakhand, Himachal Pradesh and Madhya Pradesh, have also passed
anti-conversion laws in 2020.
History Of Anti-Conversion Laws
Anti-conversion laws are regulations intended to curb religious conversions
achieved through employment of force, fraud, deception or allurement. Such laws
were initially enacted by the Princely States including Kota, Bikaner, Jodhpur,
Raigarh, Patna, Surguja, Udaipur, and Kalahandi during the British Rule in India
in order to preserve Hindu religious identities against the backdrop of growing
popularity of Foreign missionaries. Being Indian was perceived as imparting a
sense of identity synonymous with being Hindu which caused Muslims and
Christians to be viewed as aliens.
Post-Independence, the newly established State was hesitant to legislate any
such laws at the Union level which would have generated communal hostilities and
endangered the unity and integrity of a pluralist nation with a multitude of
distinct and diverse ethnic and religious groups.
However, from 1960s onwards and in the context of widening appeal of right-wing
Hinduism, anti-conversion laws emerged at the level of states and Orissa became
the first to adopt an anti-conversion law ironically named as the Orissa Freedom
of Religion Act in 1967. Other states quickly jumped the bandwagon including
Madhya Pradesh, Tamil Nadu, Andhra Pradesh, Arunachal Pradesh, Chattisgarh,
Jharkhand, Gujarat, Himachal Pradesh and Rajasthan.
The statutes prohibited conversion, attempt or abetment of the same, directly or
indirectly, of any person from one religion to another by use of force,
allurement, inducement, misrepresentation or any fraudulent means.
Interestingly, the meaning of the constituent elements was conveniently left
ambiguous to widen their ambit of interpretation, encompassing a multitude of
acts within their scope.
Another remarkable feature is the requirement of informing the District
Magistrate of such conversions prior to the performance of conversion ceremony,
which is a blatant infringement of a declared civil right, personal choice and
Provisions Of The Up Ordinance 2020
The UP Ordinance of 2020 has derived its essential character from the framework
of the above mentioned statutes. Section 3 of the said Ordinance forbids
exercising misrepresentation, force, undue influence, coercion, allurement or
any other fraudulent method or using the institution of marriage for religious
conversion of any person, abetment, attempt, or conspiracy to commit the
same. Contravention of the same attracts imprisonment for one to three years and
fine of not less than rupees fifteen thousand. This offence is non-bailable
(bail can only be granted by a Magistrate or Judge) and cognisable, thereby
allowing the police to take action without a warrant or any prior authorisation.
A notable aspect is that minors, women and members of the Scheduled Castes and
Scheduled Tribes have been specifically identified as groups more ´┐Żvulnerable´┐Ż,
as manifested in the enhanced punishment of imprisonment for two to ten years
and fine of not less than rupees twenty five thousand for offences committed
with regard to these persons.
Mass conversions (two or more persons) invites a punishment of imprisonment for
three to ten years and a fine of not less than rupees fifty thousand. Any person
intending to convert to another religion must provide a notice to the District
Magistrate sixty days in advance and such officer upon receiving information
must conduct an enquiry into the genuineness of the said conversion.
The UP Chief Minister in promulgating this Ordinance placed reliance on a
judgement of a single-judge bench of the Allahabad High Court which outlawed
religious conversions only for purposes of marriage. However, this ruling of
September 2020 was overruled as ´┐Żnot a good law´┐Ż by a two-judge bench of the
same Court in November 2020 where it held that the decision of an adult
individual to choose their partner irrespective of their religion is ´┐Żintrinsic
to right to life and personal liberty."
A rather comprehensive criticism of this law was offered by former Chief Justice
of Delhi High Court, also former Chairman of Law Commission, Justice A.P.
Shah who reiterated that this law violates the provisions of Article 25 of the
Indian Constitution which guarantees right to freedom of religion including
freedom of conscience and free profession, practice, and propagation of any
The law stands incongruent to one of the most fundamental principles of criminal
law as it places the burden of proof not on the prosecution but on the accused
who is required to establish as a fact that the said conversion was not in
violation of this law. Thus there is a presumption of guilt and every conversion
assumed to be illegal.
Another peculiar aspect is that while voluntary and wilful conversions are
presumed to be illegal, even forced and unwilling reconversions are not barred.
Conversions have been portrayed as antipathetic to the solidarity of the nation
but reconversions to the ´┐Żreligion of our forefathers´┐Ż i.e., Hinduism, a
practice also proposed by the Shuddhi Movement launched by the Arya Samajists in
early twentieth century, is welcomed.
One may question the inclusion of women and SC/ST persons, along with minors,
among those more prone to such forced or illegally motivated conversions. On one
hand, the law re-establishes the ideal of patriarchy, pronouncing women as
secondary citizens possessing no freedom to choose for themselves and on the
other hand, denies individual agency to even adult members of scheduled castes
and scheduled tribes. If one follows the rationale adopted in formulating this
statue, it may be safe to say that the law perceives and declares women and
members of the SC/ST as persons incapable of independent decision-making
regardless their age, education level and accomplishments.
Challenging The Ordinance
Only two days after the Ordinance was promulgated, Nadeem was apprehended by the
police and booked under the same. He approached the High Court where he pointed
out how the law has been abused by the State Police who are only targeting
Muslim men marrying Hindu women and not vice-versa. He asserts that the
Ordinance defies the Special Marriage Act, 1954 by adding new levels in degrees
of prohibited relationships based on grounds of religion to incite communal
tensions and create an atmosphere of terror and fear.
Amidst the controversy regarding the legality of the anti-conversions laws,
petitions have been filed in the Supreme Court challenging the validity of the
laws passed in UP and Uttarakhand. One of these is forwarded by Advocates Vishal
Thakre, Abhay Singh and another who have urged the court to direct the states:
Not to give effect to impugned provisions/ordinance and withdraw the same or in
the alternative modify the said bill´┐Ż for it ´┐Żdisturbs the Basic Structure of
the Constitution as laid down by Law.´┐Ż
Another plea has been filed by the NGO Citizens for Justice and Peace (CJP)
which argues that the laws encroach upon the right to personal liberty and right
to freedom of religion as conferred upon citizens by Article 21 and Article 25
respectively of the Indian Constitution. Some of the provisions of the Ordinance
have been described as ´┐Żoppressive, horrible...and absolutely obnoxious.´┐Ż
In its response, the Apex Court on 6th January 2021 has issued notice to both
the States seeking a response within four weeks. But at the same time, the Court
has refused to pass stay orders against the laws.
Anti-conversion laws were legislated by the State Governments aspiring to
maintain ´┐Żpeace´┐Ż and ´┐Żharmony´┐Ż and restore ´┐Żpublic order´┐Ż but have in fact
caused shrinkage of the secular fabric of the nation. In reality, conversions
and inter-faith marriages pose a threat to the hegemony of the upper caste
Hindus and the laws reverberate the Islamophobic, regressive, repressive and
chauvinist attitudes of the Hindu extremists.
Bestowing utmost paramountcy to spiritual sincerity of the conversions is only
a facade of the ongoing Hindu nationalist agenda. It is a glaring example of the
State´┐Żs continuous efforts to invade the private realm of its citizens , denying
them the control of personal decisions of their life. Indeed the laws are a
blatant transgression of the Constitutional liberties and protection accorded to
each citizen of the nation and must be struck down by the Court to preserve the
democratic ideals of a nation ruled by law and a Constitution.
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