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Uttar Pradesh Prohibition Of Unlawful Religious Conversion Ordinance 2020: An Analysis

The Uttar Pradesh Prohibition Of Unlawful Religious Conversion Ordinance, 2020 (In Hindi Mentioned As: Uttar Pradesh Vidhi Virudh Dharma Samparivartan Pratishedh Adhyadhesh, 2020) oftentimes referred to as the Love Jihad Law By The Chief Minister Of Uttar Pradesh Shree Yogi Adityanath, media and other Hindu vigilantes has been the centre of every debate in the recent times.

The Uttar Pradesh State cabinet cleared the anti conversion ordinance on 24th November 2020 which was eventually signed and approved by the Uttar Pradesh State Governor SMT. Anandiben Patel on 28th November 2020. The ordinance makes conversion a non-bailable offence with Up to 10 years of jail time if the conversion is made through misinformation, by force, unlawfully or by any other such deceitful and dishonest means.

The law requires that the religious conversion for the purpose of marriage in the state must be approved by a District Magistrate and provides a strident action for the mass conversion and any other deceitful religious conversion for the sole purpose of marriage. Although the ordinance itself has no mentions of the term"LOVE JIHAD" but there have been several instances of the law being called as law to curb love jihad being done by the perpetrators against Hindu women and girls. The chief minister of Uttar Pradesh himself had earlier announced through his rally at Jaunpur that his government is working on the matter and will soon pass a law to curb"LOVE JIHAD"

Uttar Pradesh to bring strict law against 'Love Jihad', says CM Yogi Adityanath - The Economic Times

From being termed as a law that brings ignominy and hatred against the Muslim minority in India to a law parallel to the Hitler's rein Each and every ornate terms from the dictionary have been used to outline it. A meticulous Scrutiny of the controversial Ordinance reflects that while many of these assertions have a Strong basis, others give the impressions of just a erroneous alarm.

Historical Background
The history of anti religious conversions dates back to even prior India gained its independence from the British rule. During the rule of the Crown several princely states in an attempt to preserve the religious Hindu identity against Muslims passed multiple laws prohibiting religious conversions in their Respective states which included Patna, Kalahandi, Udaipur Kota and Surguja

Anti Conversion Laws That Were Passed During The Pre Independence Era Were:
  • Raigarh State Conversion Act Of 1936
  • Surguja State Apostasy Act Of 1942
  • Udaipur State Anti-Conversion Act, 1946

Anti Conversion Laws That Took Force Post Independence Were:
  • Orissa Freedom Of Religion Act Of 1967
  • Madhya Pradesh Freedom Of Religion Act Of 1968
  • Arunachal Pradesh Freedom Of Religion act Of 1978
  • Chattisgarh Freedom Of Religion Act Of 2000
  • Gujrat Freedom Of Religion Act Of 2003
  • Himachal Pradesh Freedom Of Religion Act Of 2006
  • Jharkhand Freedom Of Religion Act 2017
  • Uttarakhand Freedom Of Religion Act Of 2018
And the recent furore has been by the caused by the Addition of the state of Uttar Pradesh which has joined the list of States prohibiting religious conversion. The narrative that the concept of prohibition of religious conversion is floating only during the BJP regime seems to be a little slant.

Various other governments like the Congress Party government in Himachal Pradesh in 2006, Swatantra Party government in 1968 have also passed such laws to curb religious conversions And the grounds given for enactment of these laws in these States were similar to those given by the BJP ruled Government in State of Uttar Pradesh.

The Apex court of India i.e the SUPREME COURT OF INDIA and various other high courts and courts in succession across the country have stated that if the conversion of an individual"Is resorted to merely with the object of creating a ground for some claim of right" it would be" a fraud upon the law". Even In the case of Lily Thomas vs Union Of India in 2000 the Supreme Court outlawed the marriage on the basis that if someone "feigns to have adopted another religion just for some worldly gain or benefit" it will be held as" religious bigotry".

Provisions
The Uttar Pradesh Prohibition of unlawful conversion of religion ordinance,2020 defines allurement, conversion, religion, coercion, religion converter, unlawful conversion and undue influence. The ordinance contains 14 sections and 3 schedules within it's purview. a religion convertor is described as"a person of any religion who performs any act of conversion from one religion to another religion by whatever name he is called such as Father Karmkandi, Maulvi,or Mulla, etc

Allurement is described as"any gift, gratification, easy money or material benefit either in cash or material kind, employment, free education in a reputed school run by any religious body or better lifestyle, divine pleasure or otherwise. The ordinance prohibits any religious conversion by any fraudulent means but has exempted the person to get converted to his/her immediate previous religion (section 3).

The law makes the unlawful religious conversion a compoundable offence the punishment for which will be of minimum three years and can extend to ten years along with fine of not less than of fifteen thousands rupees which could be extended to of twenty five thousands rupees ( section 5).

The law mandates the religious conversion for marriage to be approved in the state of Uttar Pradesh by a district magistrate for which a declaration must be submitted by the person who wishes to get his / her religion converted at least 60 days in advance and the declaration given must contain the wilful consent to get his/her religion converted and the assertion that his/her wilful consent to get converted is devoid of any coercion, force allurement and undue influence.

Not only the person who wants to get his/her religion get converted needs to give the declaration but also the person who will perform the religious conversion ceremony of that person also has to give a one moth advance notice to the district magistrate or additional district magistrate that he going to perform such religious conversion ceremony of that person (SECTION 8). The law also mandates the courts to declare the marriage as void if the sole purpose of the marriage was just to get the person converted to the other person's religion in question on petition or request of the either parties ( section 6).

Usage
The"Uttar Pradesh prohibition of unlawful religious conversion ordinance" opponents since it roll out have frequently cited it as"The love jihad conspiracy theory" and that the law is nothing but just that´┐Ż an Islamophobic theory" which only purports that the Muslim youth and men target the majority Hindu women and girls and make them fall in their love by depicting themselves as charming individuals just to get them converted to Islam which they consider more superior in respect to the Hindu religion. The opponents of the act say that Since it roll outlaw it has not proved to be of any benefit to the society and has just been proposed and rolled out to target the Muslims minority in India.

Since the law has come into effect multiple arrests have been made against the offenders. The first case that was registered under the act was of"Muskan Jahan" which was registered few hours after the ordinance came into effect. At the time when the case was filed Muskan was 3 months pregnant she was sent into the protection home and become the first women to be detained under the new ordinance. the fact was that Muskan and her husband were fond of each other and were in love and she was very well aware of the fact that he was a Muslim and devoid of this fact she went to court to marry him without any pressure or allurement by him.

Devoid of this fact her husband was taken into custody and she was sent to a protection home where she suffered miscarriage due to the negligence of the protection home concerned authorities. They both were released by the court as the court at the time of the proceeding found no evidence forceful conversion or any fraud done by the husband of the Muskan during any stage of their relationship and marriage. The husband was apprehended just because a complaint was received by the police that the forceful conversion is being done which was lacking of any proof.

According to a report cited by the"theprint.in" using the police data as the source shows that within the nine months of the ordinance rollout 108 cases were filed and 189 people had been arrested in link to anti conversion case. The aforementioned cases were filed withing one year of the time frame since the ordinance was promulgated and according to the Uttar Pradesh police data accessed by the"ThePrint" the final reports were filed only in 11 cases due too the lack of evidences against the apprehended and the chargesheets have been filed in 72 out of the 108. A few of the cases where the final reports were submitted have been in the news for alleged misuse of law.

The police data of Uttar Pradesh shows that the highest numbers of the cases in Uttar Pradesh have been filed in Bareilly, Meerut, Gorakhpur, Lucknow and Agra. There have also been some instances where the women faced a lot of torture in by the 'shelter care homes' and by the 'Bajrang dal' activists. For instance there was a Incident in December 2020 where the Muslim husband was arrested along with his brothers and his Hindu wife was send to the Nari Niketan. at the time of her disposal to Nari Niketan she was pregnant but she was not provided with any due care.

In the Nari Niketan and was allegedly torture at the Nari Niketan due too which she suffered a miscarriage And in her interview to ThePrint she told that she and her husband were forcefully dragged and taken to the police station by the Bajrang dal activists. The women's husband and his brother who were arrested for the alleged conversion were later released due to lack of evidence to proof that forceful religious conversion has taken place.

Analysis Of Controversial Provisions
There has been very much public furore since the ordinance has been promulgated. They have been made multiple allegations by the opponents of the ordinance related to the constitutional validity of the ordinance. The ordinance is firstly questioned on the very point of it being passed as the ordinance because the constitution of India confers the power upon the governor of a state under article 213 to promulgate the ordinance only in those cases where immediate action is required and when the state legislature and the state council if there in the state are not in session and the governor is satisfied that there exist circumstances which render him necessary to take immediate action.

These three prerequisites must exist to pass an ordinance:
  • The state legislative assembly and state council if there in the state are not in session
  • There should exist circumstances to promulgate an ordinance
  • Those circumstances should render him necessary to take immediate action

But in the case of present ordinance both the state legislative assembly and council were not in session but were there circumstances immediate enough to promulgate the ordinance is the very essential question that that the government of Uttar Pradesh need to answer because according to a report cited by the Uttar Pradesh law commission the inter faith marriages in India constitute only 2 % of the total marriages in India and the figure of 2% is a very small figure that may affect the public order of the state or country and there were no reports of too many mass conversions happening in the state which rendered the government necessary to promulgate such ordinance.

The one of the controversial provision of the ordinance is section 4 of the ordinance which confers powers to any blood relative brother, sister parents to lodge a complaint against such conversion. now in the most cases the conservative family members in India are against the inter faith marriages and conversion and they got the opportunity to put obstacles in the way of conversion and marriage. on the registration of such complaint of conversion the police will investigate the matter and can also make arrests as the section 7 makes it a cognisable and non bailable crime and there exists a very high chance of false FIR.

By the disgruntled family members if they are not on the same page therefore there exists a very high chance of unnecessary harassment of the inter-faith couple who wishes to get married against their family will. nevertheless a mere apprehension that the law will be misused cannot become a ground to declare a Law unconstitutional and the same have been stated by the supreme court of India in" justice K.S Puttaswamy (retd) vs union of India" where the supreme court gave the judgement that:
A statute cannot be struck down on the ground that there is scope of misuse.

Another controversial provision of the ordinance is the section 8 of the ordinance which treats the marriage per se to be without free consent and individuals has to prove that his/her conversion is out oof free consent and will. The concerned individuals need to submit a pre marriage conversion 60 days in advance that the marriage is devoid of any fraud, undue influence, coercion and allurement which will be further scrutinised by the police authorities in the investigation

Section 9 of the ordinance also has the potential to land the converting couple in trouble and cause a threat to them by the reactionary staunch religious groups and individuals who do not even refrain from killing a individual in the name and sake to protect their religion from the alleged perpetrators as the Section 9 of the ordinance.

Says that the person who converted needs to send a declaration to the DM of the place where he/she resides and the copy of the declaration will be put on the notice board of the DM'S office till the date of confirmation. The converted person also needs to present himself before the DM post conversion for confirmation. This procedure of the section not only has the potential to cause a threat to the life of the converted person but also has the possibility to make an individuals private life a public affair.

Criticism And Support
Since the ordinance has been promulgated there have there have been several altercation between the proponents and opponents of the ordinance. opponents cite the ordinance as unviable and is passed surreptitiously while opponents of the ordinance have committed their unyielding support in favour of the ordinance as describing it as the need of the hour against the unlawful and forced religious conversions.

The various experts including the former law commission chairman justice A.P Shah have described the law ultra vires and unconstitutional. the opponents of the ordinance also includes former justice of the honourable supreme court of India Justice Madan Lokur, In fact 104 former bureaucrats have also written an open letter to CM Of Uttar Pradesh Yogi Adityanath to revoke the ordinance as the ordinance tends to deny right to freedom of religion which is enshrined in Article 25 of the constitution of India and also impose limits on the women's right to choose their partner. It gives the loud message that women are not capable and sensible enough to choose a perfect candidature for marriage and have a life partner of their choice.

There is also a long list of the proponents of the ordinance which includes several retired civil servants, judges armed force veterans senior journalists and diplomats. In the favour of the ordinance they cite that as the law applies to everyone and does not specifically targets any one particular religion so it cannot be discriminatory and biased in nature and it will be put a stop to the forced and unlawful religious conversion by the way of allurement, coercion, undue influence,marriages and misrepresentation

Conclusion
The Uttar Pradesh prohibition of unlawful religious conversion ordinance comes with it own set of controversies while some of them are on the right track others seemed to be just a false alarm and misguided comprehension. it is no false that this ordinance places burden on the people wishing to convert to other religion but does it really imposes intrusion in the personal life and liberty of the individuals is a question still to be decided by the court of law. The ordinance needs to pass three test as laid down in the Puttaswamy judgment.

That for any law to have effect on the right to privacy and the three tests laid are:
  • It is legal in in its absolute terms
  • There is a need for it
  • It is proportional
The further test which the ordinance neds to pass is whether it really violates the freedom of religion enshrined under article 25-26 of the constitution of India or it just merely regulates it

Despite of the fact that the ordinance seems to be violative of multiple fundamental principles of law and judicial precedents and there are high chances of law being misused but that alone does not makes the law ultra vires and unconstitutional"Justice K.S Puttaswamy vs Union of India.

The chief minister of state Of Uttar Pradesh has stated in an interview that act is fairly drafted and does not target any particular community or religion within its ambit as it is nowhere mentioned that it only applies to Hindus or Muslims whosever irrespective of the religion will commit the crime of forceful religious conversion by any means will be treated and persecuted equally under the law so whether the ordinance is really discriminatory and unconstitutional or is of utmost importance for the safety of women in the state of Uttar Pradesh is a question Still to be answered in the future days to come.

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