The Love-Jihad Ordinance: A Constitutional Review

Saksham Chaturvedi

Screen-Shot-2018-02-13-at-10.50.03-PM-1024x571

This piece analyses the provisions of the recently promulgated ordinance on conversions for inter-faith marriages against the Fundamental Rights guaranteed by the Constitution, to demonstrate how the criminalization of religious conversion for marriage is unconstitutional.

Introduction

On 28th November 2020, the Governor of Uttar Pradesh promulgated the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020, which seeks to prohibit religious conversion for marriage. This controversial ordinance is a new blow to personal liberty, and the right to freedom of conscience enshrined in Article(s) 21 and 25-28 respectively. Purposively, this article attempts to individually read down the contentious sections and provisions of the November Ordinance – in light of Part III of the Indian Constitution.


Questionable Provisions of the Ordinance

Section 3 of the Ordinance makes religious conversion inter alia for the purpose of getting married punishable by imprisonment extending up to 5 years and a minimum fine of fifteen thousand rupees with sterner punitive provisions if the person converted is a minor, woman, or a member of the Scheduled Caste/Scheduled Tribe. This Section is legally untenable since it suggests that conversion for the purpose of marriage is unlawful: it impedes on Article 21 which guarantees the right to personal liberty; Article 14 which prohibits the arbitrary exercise of State power; and, Article 25 which assures to all persons the Fundamental Right to profess and practise any religion, including the right to convert from one religion to another, subject only to considerations of public order, morality, and health.

The test of Article 21 borrows from the test to check arbitrariness developed under Article 14. The Supreme Court of India (SC) in Maneka Gandhi v. Union of India established that “The fundamental rights conferred in Part III of the Constitution are neither distinctive nor mutually exclusive.” Further, in Union of India v. International Trading Corporation, the SC said that “if the policy or any action of the Government, fails to satisfy the test of reasonableness, it would be unconstitutional.” This ‘test of reasonableness’ is not a codified principle but serves to check any evasive substantive/procedural arbitrariness: constitutionally, every law must be just, fair, and reasonable, and must incorporate substantive due process.

However, the present restriction on conversion does not assimilate any equitable principle to uphold the due process test of Article 21. It arbitrarily impairs the free choice of a person who in good faith wishes to convert his/her religion. That the object of the conversion is for the purpose of marriage, is immaterial since exercise of free will is not subject to intentionFor this reason, by the dint of Section 3, the Fundamental Right to Life and Personal Liberty is curbed to an unfair degree of absurdity. Additionally, in Shafin Jahan v. Asokan K.M., the SC had held that the Constitution of India guarantees the right to marry a person of one’s choice, as a part of personal liberty and individual autonomy integral to Article 21. Furthermore, in Shakti Vahini v. Union of India the SC held that the State or any other person/organization cannot object to such autonomous choice of a partner, since marriage is a fundamental right. Thus, this provision falls foul of the due process test of Article 21.

The locus standi to file a case under the Ordinance is defined under Section 5 of the Ordinance, to include any aggrieved person, or person related to the couple by blood. While the intention of the instant clause appears to be bona fide, its application can be easily exploited by the disapproving guardians of an eloping couple, in potential violation of the judgements in Shafin Jahan and Shakti Vahini. Many instances have already surfaced wherein cases have been filed by the couple’s relatives, motivated by their unfavourable opinion on inter-faith marriages even when the couple had married by free choice.

Section 6 of the Ordinance invests the Courts with the power to declare null and void any marriage conducted for the sole purpose of unlawful conversion or vice-versa by a man of one religion with the woman of another. Such a provision which substantively discriminates between men and women, with no reasonable cause is arbitrary and clearly transgresses the principle of equality. This patriarchal and aggressively chauvinistic provision attempts to reduce women once again to the status of an unequal partner in a marriage and presumes that all women are naïve and impressionable to conversion. 

Not only does this legislation prohibit inter-faith conversions for marriage, any person irrespective of any reason, for the purposes of a religious conversion, shall have to follow prescriptions laid down in Sections 8 and 9 of this ordinance. Sections 8 of the ordinance states that one’s desire to voluntarily convert their religion should be declared before the local District Magistrate (DM). Failure to abide by this civil condition is punishable with imprisonment up to 3 years including fine. Subsequently, the DM must satisfy himself/herself whether the said conversion is voluntary or not. This confers unlimited policing powers to the State which has been given a free hand to interfere with citizens’ privacy, personal liberty, and self-determination, all of which are intrinsic to a person’s life and liberty under Article 21. 

Marriage, or for that matter, a religious conversion, is a private affair. Moreover, the SC in Seethalakshmi Ammal vs Ponnuswamy Nadar specifically clarified that no formal ceremony, legal requirements, or formalities need to be completed before changing one’s religion. This Section, therefore, not only contrasts the way personal law was envisaged to operate but is also a manifest violation of the same. This contrast can be noted in the 235th Law Commission of India Report on ‘Conversion/Reconversion to Another Religion’  which discouraged such a practice by observing that- It would be highly inappropriate to prescribe by way of legislation the details of ceremonies and formalities to be gone through for conversion or the manner in which conversions are to be proved in a Court of law.”

Section 12 of the Ordinance places the burden of proof as to whether a religious conversion was affected with free consent on the person who is alleged to have caused such conversion and committed an offence. However, the burden of proof to establish the fallacy of a conversion should lie upon the State, i.e., the person making the accusation instead of the accused. Section 101 of the Evidence Act, read along with Section 102, illustrates that proof must be brought by the person imputing the crime, and not the one upon whom it is being imputed. Therefore, the State cannot inherently assume all conversions to be irregular, involuntary and ’caused’  by another individual without proving such irregularity before a Court. With respect to individual liberties, Common Law says that Everything which is not prohibited is allowed: this legislation seeks to turn around this basic tenet and understanding of the law. 

This Ordinance is also alarming, since it is believed that under its garb, mass forcible reconversions will be effectuated by the ruling State government. The proviso to Section 3 allows “reconversion” to a person’s former religion, which would not constitute an offence under the ordinance even if imposed via fraud, allurement, force or misrepresentation. The extent to which this legislation can be misused because of arbitrary and unchecked power on part of the State, is exceedingly concerning.


Precarious Ground

While greenlighting the instant ordinance, in support of his latest policy, Chief Minister Yogi Adityanath highlighted two single-judge decrees of Allahabad High Court in the case of Noor Jahan v. State of U.P. and Priyanshi v. State of U.P.. However, both of these judgments have since been overruled. On 11th November, while deciding the case of Salamat Ansari v. State of U.P., a division bench of the Allahabad High Court overturned the former two judgments.

In Salamat Ansari, the petitioners, Salamat Ansari and Priyanka Kharwar, approached the High Court praying to quash the F.I.Rs registered against them under Sections 363, 366, 352, 506 of the Indian Penal Code, which cover kidnapping, criminal intimidation and use of criminal force, as well as Sections 7 and 8 of the POCSO Act which cover sexual assault against minors. The argument of the petitioners was that the petitioner couple was of majority age, competent to marry, and married each other with their free consent. The marriage was solemnised as per Muslim Personal Law, after Priyanka converted to Islam. The State, however, argued that since the conversion was adopted for the sole purpose of marriage, the conversion and the marriage would become irregular. Accordingly, the State cited the judgments delivered in Noor Jahan and Priyanshi. The primary contention before the Court, therefore, was to decide upon the validity of religious conversion for the purpose of marriage.

The Court while determining the instant case noted that, “Interference in a personal relationship, would constitute a serious encroachment into the right to freedom of choice of the two individuals.” Remarkably, the Court reiterated the observations made by the SC in Shafin Jahan, and held that infringement with a person’s right to freedom of choice, in choosing a partner is restricted as per Article 21 of the Constitution. As a result, the Court upheld Priyanka’s conversion to Islam to marry Salamat. While considering the earlier findings of the Court in Noor Jahan and Priyanshi, the Court reassessed that disregarding an individual’s personal choice in choosing a partner would be contrary to the guarantee of personal liberty and antithetical to the concept of inter-faith unity and harmony. Subsequently, the Court held the two former judgements to be bad in law. 

With the latest decision of Salamat Ansari, it is apparent that the Ordinance which rested upon two older judgments of the High Court, is now on precarious ground. To rebut the constitutional challenges already posed before the ordinance would be an uphill task for the U.P. Government.


Similar Laws of the Past

The U.P. ordinance is not the first instance of the State attempting to restrict the exercise of personal liberty in the matters of faith. Two older laws are of significance in the present instance, since the adjoining judgment upholding their validity might validate the U.P. Ordinance. First, the Orissa Freedom of Religion Act 1967, and second, the Madhya Pradesh Dharma Swatantrya Adhiniyam 1968, both of which required any person who wished to convert to another religion, to inform the local District Magistrate. Both these laws were struck down by respective High Courts, before, the SC in Rev. Stainislaus vs State of Madhya Pradesh, upheld the validity of these laws, holding that the right to religion does not include the right to forcibly convert another person. Notably, Rev. Stanislaus presented the Apex Court’s opinion solely on the relatively narrow issue of ‘forced and fraudulent conversions.’

While Rev. Stainislaus may preliminarily be in favour of the Ordinance, it cannot be presumed that the same will be decisive in the present context. This is because the U.P. Ordinance, in addition to preventing conversions induced by undue influence, fraud, misrepresentation, and allurement, adds a fifth pillar to deem religious conversion unlawful, i.e. marriage. The addition of a clause outlawing conversion for the purpose of marriage considerably drifts away from the original purpose of the Odisha and M.P. laws which never sought to curb the so called ‘menace’ of ‘Love-Jihad’. As a result, not only does the fundamental intent of the laws vary, but the entire premise and implications of conversion also become disparate. 

Additionally, Rev. Stainislaus will also have to stand up against more recent judgements. The principal judgment in this respect is Justice (Retd) K S Puttaswamy vs Union of India, which will likely serve as the guiding light while deciding the fate of the U.P. Ordinance. In Puttaswamy, the SC upheld the right to privacy and individual autonomy as Fundamental Rights under Article 21 of the Constitution of India. In his judgment, Justice Chandrachud remarked that: 

Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation.  Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognizes the plurality and diversity of our culture.”

It is apparent that a law whose primary purpose is to impede and stymie the congregation of inter-faith marriages, outlaw the personal liberty of individuals, and make the State a watchdog of personal choices, will not stand up before the Courts in today’s time. Since the operative Sections 3, 6, 8, 9, and 12 of the U.P. Ordinance are contrary to the idea of privacy and individual liberty, the whole Ordinance is likely to be quashed for want of consonance with Part III of the Constitution. 


Concluding Remarks

There is no doubt that the Ordinance is clearly antithetical to the Constitutional ideals of personal liberty, individual autonomy, liberal democracy, and limited government which have developed over the last 70 years. One of the paramount implications of the legislation is that it discourages social change via marriage, and reintroduces societal barriers in a state which is already deeply divided along caste, religion, and gender lines. The present situation appears grimmer, because many other states have also committed to come up with their own versions of a law to curb ‘Love-Jihad’. The U.P. Government has already sprung into action with police and government officials moving to stop all inter-faith marriages as being invalid as per the latest Ordinance. Therefore, in view of the many Constitutional challenges posed before the ordinance, the onus of disabling State Governments from encroaching upon personal freedoms of individuals lies with the guardian of fundamental rights i.e. the Supreme Court.


The author is a second-year law student at National Law University, Odisha

One thought on “The Love-Jihad Ordinance: A Constitutional Review

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google photo

You are commenting using your Google account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s