UP's 'love jihad' ordinance militates against right to privacy, will allow political groups to jeopardise public order

It is crucial to understand the salient features of the law to understand its true intent and impact

Vikram Hegde December 05, 2020 13:51:38 IST
UP's 'love jihad' ordinance militates against right to privacy, will allow political groups to jeopardise public order

File image of Uttar Pradesh police personnel. AFP

The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance and its clones which are coming up in other states, popularly known as 'love-jihad' laws, have generated a lot of controversy of late.

In Uttar Pradesh, the law has been quickly deployed against marrying couples who come from different religious backgrounds, particularly in cases where the groom is Muslim and the bride is Hindu.

The context of the legislation cannot be missed. It comes on the back of propaganda which has been going on for years, which alleges a conspiracy by Muslims to lure Hindu (and as alleged in Kerala, Christian) women into the Muslim fold by pretending to be in love with them. However, various investigating agencies and high courts have said that there is no evidence of any such conspiracy.

The legislation itself doesn’t mention the term “love jihad”, nor is countering any such phenomenon among its stated objectives. Instead, it purports to be against conversions by force, deceit or allurement.

Even the criticism of this ordinance has focused on its chilling effect on inter-faith marriage. Meanwhile, the broader impact of a freeze on conversions has gained lesser attention.

It is crucial to understand the salient features of the law to understand its true intent and impact.

First, it penalises conversion from one religion to another by way of misrepresentation, force, undue influence, coercion, allurement, fraud or even by marriage. The penalty is greater for conversion of women, minors and people from Scheduled Castes and Scheduled Tribes.

Secondly, it provides for an elaborate procedure involving an advance notice of 60 days to the District Magistrate by the person who wants to convert, another notice in advance of a month by the person who conducts the conversion ceremony, followed by a police inquiry into the circumstances of the conversion. After the conversion, the converted person is to give a declaration of conversion and then appear before the magistrate and verify the contents of the declaration.

Thirdly, marriage done for the sole purpose of conversion, whether the conversion was before the marriage or after the marriage, is declared void.

But it is yet another provision which makes the ordinance insidious, and not merely onerous. This provision places the burden to prove that a conversion is not made by fraud or coercion on the persons who have caused and facilitated the conversion. In other words, the burden of proof is not on the prosecution, or on the person making the allegation, like in other crimes.

The mischief that political groups can create upon having advance notice of inter-faith marriages is well-known. There are a number of cases where the local chapter of a right-wing organization has created a ruckus and objected to an inter-faith marriage even though the bride and groom are getting married out of their own free will. Trouble has been raised even when the families of the marrying couple have no problem with the marriage.

The new ordinance creates fresh opportunities for such mischief, not just in cases of marriages between two persons of different religious backgrounds but in all religious conversions. Even though the new ordinance provides that an FIR may be registered on the complaint of an aggrieved person or a family member, from the initial cases, it is seen that cases are being initiated by outsiders as well.

Anti-conversion legislations in India are not new. Other states, including Himachal Pradesh, Arunachal Pradesh and Gujarat already have them. Questions over the validity of such legislations have also come up before the courts. Legislations in Odisha and Madhya Pradesh preventing conversions by force, fraud or allurement are more than half-a-century old and have been upheld by a Constitution Bench of the Supreme Court in 1977 upon a challenge made by one Rev. Stainislaus and others. The Court in that judgment said that there is no fundamental right to convert another person and also that the freedom to practice, profess and propagate ones own religion is subject to public order.

There are already two public interest litigations in the Supreme Court challenging the Uttar Pradesh and Uttarakhand ordinances, so these legislations will be tested for constitutional validity, even if it is later, rather than sooner.

Considering recent incidents of disruption of public order when some elements came to know of lawfully conducted inter-faith marriages, it is clear that the effect of this legislation is to jeopardise public order rather than to protect it.

There have been some developments in the law which would have a bearing on how the Supreme Court may consider the constitutional validity of the ordinance. A larger bench of nine judges in the Puttaswamy case in 2017, while upholding the right to privacy, has also affirmed that the freedom of religion also includes a freedom to express or not express that choice of a person's religion to the world. The requirement of a notice directly militates against this understanding. The same judgment also held that the freedom of belief and faith is an aspect of liberty.

There has been some amount of confusion amongst the high courts on the law relating to conversion for the purpose of marriage. In the cases of Sarla Mudgal and Lily Thomas, the Supreme Court has held that conversion for the purpose of a bigamous marriage, i.e., an arbitrage among personal laws, is illegal. This has been extrapolated by High Courts in some instances to hold all conversions for the purpose of marriage to be illegal. Recently in the case of Priyanshi, the Allahabad High Court denied protection to a couple seeking such protection on the basis that conversion for the purpose of marriage is not valid. However, the said judgment of a single-judge Bench has been held to not be good law by a Bench of two judges in November.

While the privacy judgment does create a different framework for analysing the constitutionality of the anti-conversion ordinance, it remains to be seen whether the Supreme Court applies these principles to these ordinances as well.

The author is an advocate on record at the Supreme Court. Views expressed are personal

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