The U.P. government’s ordinance seeking the prevention of illegal conversion has several provisions that go against the Constitution and restricts the freedom of conscience.
Objective of the ordinance
- The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 seeks to prevent “love jihad” in the state
- The ordinance makes it a criminal offence for a person to convert another by coercion, misrepresentation, fraud etc, which is unobjectionable.
- A marriage solemnised for the “sole purpose” of unlawfully converting the bride or the groom is required to be declared void by the competent court.
- There can be no objection to ordinance’s premise that converting somebody by fraud or misrepresentation is wrong.
- In fact, though the members of the Constituent Assembly included the right to “propagate” one’s religion they considered it a “rather obvious doctrine” that this would not include forcible conversions.
- However, the UP ordinance goes beyond this principle and does something quite strange.
Unconstitutional provisions and issues with the ordinance
1) Lack of clarity
- The ordinance makes it a criminal offence to convert a person by offering her an “allurement”.
- The term “allurement” is defined very broadly, to include even providing a gift to the person who is sought to be converted.
- The use of the words “or otherwise” in the definition of allurement is puzzling.
- The essential prerequisite of a criminal law is that it has to be precise.
- A person cannot be put behind bars for doing something that a penal law does not clearly and unequivocally prohibit.
- On this touchstone, the definition of “allurement” leaves much to be desired.
2) Reconversion to a person’s previous religion is not illegal
- It says that “reconversion” to a person’s previous religion is not illegal, even if it is vitiated by fraud, force, allurement, misrepresentation and so on.
- In other words, if a person converts from Religion A to Religion B of her own volition, and is then forced to reconvert back to Religion A against her will, this will not constitute “conversion” under the ordinance at all.
3) Unfairly treating all women in the same way
- Illegal conversion under the ordinance attracts a punishment of 1-5 years in prison.
- However, if the victim of the illegal conversion is a minor, a member of the Scheduled Castes or Scheduled Tribes or, strangely, a woman, the punishment is doubled — at 2-10 years behind bars.
- In other words, it does not matter who the woman is, if somebody converts her against her will, the punishment can go up to 10 years in prison.
- The ordinance unfairly paints all women with the same brush — assuming that all women are gullible, vulnerable and especially susceptible to illegal conversion.
4) Buden of proof
- The burden of proof in criminal cases is on the prosecution, and the presumption is that a person accused of committing an offence is innocent until proven guilty.
- The Uttar Pradesh ordinance turns this rule on its head.
- Every religious conversion is presumed to be illegal.
- The burden is on the person carrying out the conversion to prove that it is not illegal.
- The offence of illegal conversion is also “cognisable” and “non-bailable”, meaning that a police officer can arrest an accused without a warrant, and the accused may or may not be released on bail, at the discretion of the court.
Time to revisit the past judgement
- In Rev Stainislaus v State of Madhya Pradesh (1977), the Supreme Court held that the fundamental right to “propagate” religion does not include the right to convert a person to another religion.
- In that case, the court had upheld anti-conversion statutes enacted by the states of Orissa and Madhya Pradesh.
Conclusion
The ordinance puts an incredible chilling effect on the freedom of conscience and state must reconsider it.
