On December 3, 2020, a police team arrived at a wedding venue in Uttar Pradesh. They had been informed that a Muslim man was getting married to a Hindu woman without seeking prior permission from the District Magistrate. The overzealous police directed the bride and the groom to call off their wedding and left after being assured that the couple would seek the requisite permission before marrying. This bizarre incident is the result of a new law in Uttar Pradesh called The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 which imposes onerous restrictions on religious conversions and interfaith marriages. An ordinance is a law that is promulgated by the governor when the legislature is not in session and the circumstances require immediate legislative action. When approved by the legislature in the next legislative session, an ordinance assumes the character of conventional legislation.
In order to make sense of the rationale behind this law, it is important to understand the political and religious sentiments that gave rise to it. In 2017, Yogi Adityanath, a “fiery Hindutva mascot” was appointed as the chief minister of Uttar Pradesh. This was viewed as a shocking development as Adityanath was known for his inflammatory speeches against Muslims. He had also been jailed in 2007 for disturbing the peace. After his appointment, there have been a number of instances that suggest that the government is hostile toward Muslims and that attempts have been made to condone violence against Muslims.
In one of his speeches, Adityanath assured the people of his state that the government would curb “Love Jihad.” This term has been used to describe the conversion of a Hindu woman to Islam after she marries a Muslim man. It’s widely presumed that such conversions involve coercion or deceit and hence Hindu women ought to be protected from the danger of conversions. Therefore, the Ordinance declares that it intends to tackle “unlawful conversions” and matters connected to it.
While a law that intends to prevent forcible or fraudulent religious conversions cannot be faulted, this Ordinance impedes even voluntary conversions and puts a lot of people at the risk of being jailed for many years. Freedom of conscience and the right to freely profess, practice, and propagate religion is expressly recognized as a fundamental right in the Constitution of India. The Supreme Court has interpreted this right to include the right to choose a religion by conversion. The Ordinance imposes onerous restrictions on the right to convert. Section 8 stipulates that a person who intends to convert must inform the District Magistrate at least 60 days in advance. The Magistrate is obligated to get an investigation done by the police to ascertain the “intention” and “purpose” of the conversion. Thereafter, the person who converted is obligated to send a declaration of conversion to the Magistrate who shall then display the declaration in his office so that the general public is informed. The general public may even object to the conversion by informing the Magistrate. Converting without following this cumbersome process is punishable with imprisonment, which could extend up to three years.
It is a settled principle of constitutional law that restrictions imposed on fundamental rights must be reasonable in nature and proportional to the harm sought to be prevented. This Ordinance imposes unreasonable restrictions on the right to choose a religion of one’s choice. A chilling effect has been created by prescribing an onerous procedure that allows the government to intrude into private lives of citizens. In the case of K.S. Puttaswamy vs Union of India, the Supreme Court held that the right to privacy encompasses the right to be left alone and protects personal choices from the suspicious gaze of the state. In the same case, marriage and faith are expressly recognized as “intimate matters” protected by the right to privacy. A mandatory investigation by the police into every conversion to ascertain the reason for conversion and publication of the declaration of conversion to let the public know and object to the conversion vitiates the constitutional principle of religious faith being a private affair.
Instead of focusing on empowering victims of forcible or fraudulent conversions to seek legal remedies, this law views every religious conversion with suspicion. It infantilizes citizens and presumes that a person who intends to convert is probably being coerced or misled and needs protection from the state. One of the most troublesome features of the Ordinance is that the burden of proof is on the person who “caused” the conversion to prove that the conversion was not illegal. Ordinarily, the state has to establish the guilt of the accused but under this law, an accused has to prove innocence and this worsens the power imbalance between the state and the person facing trial. This has the potential to jeopardize fair trials especially if the accused are unable to engage competent advocates due to their financial condition.
Yet another problematic feature is the criminalization of conversion by allurement. The definition of allurement suffers from the constitutional vice of vagueness. Allurement has been defined to include “any temptation” and some of the expressly recognized forms of allurement are promising free education, employment, better lifestyle, or “otherwise.” As mentioned earlier, the Constitution expressly recognizes the right to freely propagate religion as a fundamental right. Such a broad definition of allurement is bound to jeopardize the freedom to propagate religion. Imprecise and vague criminal laws are known to pose a danger to personal liberty due to the risk of incarceration.
A lot of Hindus belonging to Scheduled Castes and other historically oppressed classes have embraced Buddhism and other religions to free themselves from the clutches of untouchability and other ills of the caste system. Religious preachers who propagate their religions by suggesting that “untouchables” can lead a better life by embracing a religion that does not have traces of untouchability could be guilty of conversion by allurement. Converting people belonging to Scheduled Castes or Scheduled Tribes by allurement attracts imprisonment up to 10 years. The introduction of this provision will not seem surprising if one recollects that Yogi Adityanath had accused Christian missionaries of attempting to Christianize India by alluring the poor with social services.
It is worrisome that other Bharatiya Janata Party-ruled states like Haryana, Madhya Pradesh, and Karnataka are keen on emulating Uttar Pradesh by introducing similar laws to curb conversions and put an end to “love jihad.” The suspicious gaze of the state is gradually spreading across India and intrusions into private affairs of citizens are intensifying. The judiciary as the bulwark of the Constitution ought to stop these states from brazenly flouting the Constitution and entrenching bigotry in Indian laws. Independence from an authoritarian colonial regime will not have a meaningful impact on the lives of citizens if personal choices are scrutinized by District Magistrates and joyous occasions like weddings are disrupted by the police.
Rahul Machaiah holds an LLM in Law & Development from Azim Premji University. His areas of interest are public law, law & development, and legal philosophy. Twitter handle: @rahulmachaiah