The Ordinance titled ‘Uttar Pradesh Prohibition of Unlawful Conversion of Religious Ordinance, 2020 (Uttar Pradesh Vidhi Virudh Dharma Samparivartan Pratishedh Adhyadhesh, 2020)’ has passed by the Uttar Pradesh Govt. after Chief Minister Yogi Adityanath has released a statement that a ‘Conspiracy Theories’ behind ‘Love Jihad’ yet to be verified.
The ordinance brought troublesome aspects that every religious conversion required to be scrutinized and certified by the state which is both morally and constitutionally repugnant. The provisions of the ordinance clearly indicate that the every religious conversion treats as unlawful unless certified by the State.
In Ordinance, the problematic provision seeks to criminalize religious conversions done for the sake of marriage. Consequently, forcing an individual to explain and justify a decision, which is very personal to her before an officer of the state is contrary to Constitutionalism.
The particular Provisions under this Ordinance which violates the fundamental rights of the individual are:
- Section 3 – prohibits one person from converting the religion of another person by marriage.
The Offence is cognizable and Non-bailable. Violation of this provision is punishable with imprisonment for a term which is not less than one year which extends upto 5 years; and a fine of Rs. 15,000/-. And if a woman has converted for sake of marriage, then the punishment is double the normal term and fine.
- Section 4 – any person related to converted person by blood or marriage to lodge an FIR against the conversion.
- Section 6 – Any marriage which was done for sole purpose of unlawful conversion or if unlawful conversion is done for the sole purpose of marriage, then Courts are empowered to void such marriage.
Apparently, these provisions giving state policing powers upon an individual choice of life-partner or religion’s choice against the Fundamental Rights to individual autonomy, privacy, right to practice any faith, human dignity, personal liberty which guaranteed under Article 21 of the Indian Constitution.
Most recently, Allahabad High Court has delivered a judgment by significantly stated that “Right to live with a person of his/her choice irrespective of religion professed by them, is intrinsic to right to life and personal liberty.”
While pronouncing the verdict, the High Court has stated that “………..neither any individual nor a family nor even the state can have an objection to the relationship of two major individuals who out of their own free will are living together…”
Pursuant to the promulgation of the Ordinance, the state Government assumes to be a tone-deaf to this latest judgment of the High Court which gives an expansive meaning of ‘personal liberty’ referring through the Supreme Court decisions made in K.S. Puttaswamy (Privacy Case); Navtej Johar(Decriminalization of Section 377 IPC), Joseph Shine (Decriminalization of adultery), Shefin Jahan (Hadiya case) & Shakti Vahini (Khap Panchayat).
Specifically, the Supreme Court in Shakti Vahini Case has observed that “the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock…” This decision made by Apex Court is closely relatable to the UP Ordinance which has criminalized religious conversion for marriage and has purely violated & assaulted personal liberty of an individual.
The Supreme Court in the Shefin Jahan case has emphasized that the right to change of faith is part of fundamental right to choice. Moreover, upholding the privacy right as a fundamental right in the Puttaswamy Judgment; the Supreme Court has observed that “Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home & sexual orientation…………….privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his/her life. Personal choices governing a way of life are intrinsic to privacy………recoginses the plurality and diversity of our culture.”
During the Public meeting of the UP Chief Minister, the statement was made the need for the law to control the cases of ‘Love-Jihad’, a term used to discredit marriages between Muslim man & Hindu Woman as concerted efforts to cause conversion using the pretext of love.
Before passing the Ordinance, a Special Investigation Team of Kanpur police had submitted a report, wherein they found no evidence of a conspiracy or an organised effort in the case of Hindu-Muslim marriages.
Similarly, the National Investigation Agency could not excavate any conspiracy behind inter-faith marriages in State. Also, the National Commission of Women has said that it has no such data on ‘Love-Jihad’. Recently in Parliament session, the Ministry of Home Affairs has told that no such case was reported by any central agency till date.
Therefore, without any compelling factual grounds to justify its need, the Ordinance fails the principle test of proportionality. On other hand, the law will lead to a grossly disproportionate result by terrorizing inter-faith couples and by deterring such marriages.
While commenting on the Ordinance, the legal commentator Vakasha Sachdev in ‘The Quint’ has noted the parallels between the ‘Love-Jihad’ laws and the Nuremberg Laws in Nazi-Germany against mixed marriages.
