There has been a lot of furore over the recent decision rendered by the Allahabad High Court, in Salamat Ansari v. State of Uttar Pradesh. One look at the judgment and the ensuing applause that it received, from many a quarter, might make one feel that it has been able to project itself as one of the hindrances in the path of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 (“the UP Law/Law”).
But, is that all that meets the eye, or is there something more?
To get an inkling of the matter, one has to examine the decision rendered in Noor Jahan Begum @ Anjali Mishra v. State of U.P. (2014), by the same Court. While the petitioners, in this case, approached the court to seek refuge from police harassment, alleged to be the result of the woman’s family not in favour of the inter-faith marriage, the Court ruled that the marriage between the petitioners was void. The Court held so based on the finding that the religious conversion was done solely for the purpose of getting married. This led the Court to hold such conversions as not genuine or bonafide in the eyes of law. The same ratio was followed in Priyanshi @ Km. Shamren v. State of U.P. , a few months back.
One major aspect, that differentiates these two cases from the latest case is that the court was more inclined to look into as to whether the couple seeking protection were freely consenting adults. Later, the had also reaffirmed the individual’s autonomy to choose their partners as a fundamental right.
By delving into the earlier decisions rendered by the Supreme Court, one cannot help but notice that such conversions which are solely carried out to enable people to marry more than once, were frowned upon by the Supreme Court. Both Lily Thomas and Sarla Mudgal cases were decided on these lines. Forcible conversion, too, is illegal as per the Stainislaus Case.
So why would such a law be the focal point of many a problem?
To get to know this, one has to look into the probable ways in which the same can be misused/ inappropriately used. While it is argued that the intention of the law is good, the fact is that the UP law gives a lot of scope for speculation and conjecture. That is exactly where it opens a can of worms, which, if not nipped in the bud, might lead to greater problems. Open-ended use of terms, without providing a reasonable connection or cause or criterion to assess the same, is one area where the law falls short of one’s expectation; and more importantly one might feel, lead to being wielded illegally. Though it might seem similar to the Himachal Pradesh law (“the HP Law”), this one is more regressive as it seeks to criminalize and do away with conversion through fraud, misrepresentation, coercion, force, allurement, mass conversion; and more importantly, if marriage is the sole reason for such conversion. There is no reference to concepts like ‘conversion by marriage’, ‘allurement’, or ‘mass conversion’ in the HP law. Abetment, convincing or conspiring to such conversion is also made punishable under the UP Law. However, an exemption for the same is provided for ‘Ghar Wapsi’! Ghar Wapsi or Homecoming, a popular concept among Hindu extremists, refers to the reconversion of a person to his immediate previous religion.
The Law provides for imprisonment of up to 10 years and a fine of up to Rs.50000 under different categories placing them akin to downright criminals, whereas, the HP Law provides punishment for imprisonment for a maximum period of up to 3 years and a fine of up to Rs. 50000. The HP Law mandates 30 days advance notice for voluntarily converting to another religion, the failure of which will attract a fine of up to Rs. 1000. The UP Law, by increasing the notice period to two months and enhancing the punishment, created a greater hurdle for the interfaith couples to get married.
Adding to the fear, the UP Government is planning the withdrawal of the Inter-caste and Interfaith Marriage Incentive Scheme, 1976, which had incentivized the inter-caste and interfaith marriages for 44 years.
Cases reported recently in UP’s Moradabad and Bijnor are evidence to the potential threat of abuse of such laws. As reported in The Hindu, since the promulgation of the ordinance on November 27, it has been invoked on average once in every 48 hours.
While the idea is to identify cases where religious conversion is solely for the purposes of marriage, the UP law, fraught in its own wordings, have not been able to clearly put across its objectives, let alone provide a route map to identify such cases! This, it is felt, places a higher responsibility on the judicial system, as the chances of it being misused, is all the more on the higher side. The Supreme Court and the High Courts have consistently respected the liberty of an individual who attained the age of majority. Shafin Jahan v. Asokan (2018) is a shining example.
While the law, by way of the Special Marriage Act, 1954, seeks to protect such interfaith marriages, there are certain repercussions that one might face while following the law procedurally and substantially. Hence, it provides no good to the interfaith couples, often forcing them for conversion to get married without hassles.
Following the path of the UP Law, the Madhya Pradesh Cabinet also approved the MP Dharm Swatantra Vidheyak, 2020. Once the Bill is enacted, the Religious Freedom Act, 1969 gets replaced. Almost all the provisions being similar to the UP Law, the provisions which sets apart the MP Bill are, the provision for the maintenance of the victims and their child, and the provision allowing the child to inherit the parents’ properties.
This is exactly where one needs the Supreme Court to wade into and lay down certain guidelines. Legal protection needs to be afforded to consenting adult couples who wish to marry- anyone. The emphasis is right there- anyone! Instead of placing the burden on the person who ‘caused’ the conversion, to prove their innocence, the prosecution needs to be the one on whom the burden of proof need be placed. The law also should ensure that the police need a warrant to effect an arrest in such situations, lest they have unbridled power: i.e., such offences need to be treated as non-cognizable offences. The definition which the law provides to ‘allurement’ is yet another vague area which needs to be relooked. The Court should strike down provisions which nullify interfaith marriages, as it violates Article 21 of the Constitution.
Given these observations, it is felt that this would unjustly interfere with the right to marry according to one’s own choice, which is a constitutional right that everyone enjoys. The UP legislation might also throttle the ideas that have been conceived by the Special Marriage Act and more importantly, that vision of the Constitution makers – a Uniform Civil Code. Time is running out: and there needs to be an immediate intervention to ensure that laws on these lines are done away with, as a forced conversion is already illegal, and we don’t need any more laws to exacerbate the attack on constitutionally protected rights. This is the need of the hour lest other states follow suit and come up with similar laws!
This article has been authored by Advocate Febin A.K. This blog is a part of RSRR’s Excerpts from Experts Series, initiated to bring forth discussion by experts on contemporary legal issues.