Superficially, the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance No. 21 of 2020 appears to be similar to the so-called anti-conversion laws that are already in existence in eight states. On a closer look though, it’s clear that the UP ordinance is much more virulent. The other states, perhaps in the garb of modesty, had chosen to name their Acts, rather ironically, Freedom of Religion Acts; this one abhors pretensions.
The UP law is teeming with legal blunders that strongly indicate the real intent of the law is to harass people so much that conversion per se is discouraged.
Problems start with the preamble itself. Amongst other things, it seeks to prohibit what it calls ‘unlawful conversion by marriage’. It may be noted that any reference to marriage is not found in the Madhya Pradesh and Odisha Acts, the oldest legislations of this kind in the country.
There cannot be any conversion ‘by’ marriage. There may be conversion ‘for’ marriage. ‘By marriage’ implies that conversion automatically follows any inter-faith marriage. This is factually incorrect. As Mashood Baderin, a professor of law at the University of London, has explained when it comes to Islam, “Under Islamic law a Muslim man who marries a Christian or Jewish woman (ahl-e-kitab, that is, people of the Book) has a religious obligation to honour and respect both Christianity and Judaism. Thus the woman’s religious beliefs and rights are not in jeopardy through the marriage, because she would be free to maintain and practice her religion as a Christian or Jew.”
The Uttar Pradesh law fails to appreciate that conversion is not akin to an irreversible chemical reaction, which can take place in one direction only and there is no going back. Nothing tangible is changed by conversion. Even circumcision for males is not compulsory for conversion to Islam or Judaism, although it is a recommended practice.
After religious conversion, if someone feels that they were duped or forced into the change, they can always press the ‘undo’ button in their minds and approach the police for remedy.
In the Stainislaus judgment, the Supreme Court, while upholding the constitutional validity of the MP and Odisha Acts, had held that they were meant to avoid disturbances to public order by prohibiting conversion from one religion to another ‘in a manner reprehensible to the conscience of the community’ and that ‘forcible conversion could create public disorder’.
The state’s concern about forcible conversions is understandable as it could involve several crimes, such as wrongful confinement (Section 342 IPC), intimidation (section 506 IPC), kidnapping (Section 359-369 IPC), assault (Section 352 IPC), threat of divine displeasure (Section 508 IPC) etc.
However, as mentioned earlier, the MP and Odisha Acts were silent on inter-faith marriages and the Supreme Court too had not commented upon that. Hence, the UP law cannot arbitrarily associate inter-faith marriages with public order.
With about 36,000 inter-faith marriages in India every year, about 6,000 of these must be taking place in UP. There has not been any breach of law and order all these years anywhere in the country over inter-faith marriages, not to speak of any breach of the more inclusive public order. On what basis, then, can they now suddenly start apprehending breach of public order in UP?
On the contrary, it can be argued that a possible breach of public order over inter-faith marriages is sought be invoked because, with the UP government’s blessing and knowledge, some organisations sharing the ideology of the ruling party might be hell bent upon disturbing public order.
‘Mass conversion’ and its penalty
Section 2(f) of the UP law defines ‘mass conversion’ as an incident where two or more persons are converted and regards it as a more serious event. This is not just arbitrary, but ridiculous. Suppose a family of three – husband, wife and an adult progeny – decides to convert together. On what logic can the state regard it as a more serious event than an individual’s conversion, and acquire the right to interfere in their collective choice?
Conversion cannot be equated with rape, where gang rape is regarded as a more heinous offence because of the sheer immorality and violence of several men overpowering a lone woman. Otherwise, the punishment for one murder or a hundred murders is the same.
Dubious focus on ‘convertor’
Section 2(i) of the UP law coins a new term, ‘Religion Convertor’. This is factually incorrect and obviously driven by ulterior motives. Conversion in general does not necessarily require the assistance of a convertor, nor witnesses. One can convert even in complete solitude. For example, in the case of conversion to Islam, all that is needed is the pronunciation of the ‘Shahada’ (I testify that there is no true god [deity] but The God [Allah], and Muhammad is the Messenger and servant of God), with sincere belief and conviction. By artificially introducing the concept of a convertor, it appears that the state’s motive is to gain an extra handle for harassing a larger number of people.
Criminalising the act of ‘convincing’
Section 3 of the UP law has two additional clauses, which the MP and Odisha Acts do not have. First is what they call conversion by marriage. Second is ‘nor shall any person abet, convince or conspire such conversion’.
While abetment and conspiracy are recognised in law, ‘convincing’ is not. This is pure fiction. Under this law, it could mean that if four Muslims happen to be discussing the merits of Islam at a teashop while a Hindu customer is also present and taking part in the conversation, they could be trying to ‘convince’ him to convert to Islam!
Exemption for ‘ghar wapsi’
The second proviso of Section 3 is even more ridiculous. It says, “Provided that, if any person reconverts to his/her immediate previous religion, the same shall not be deemed to be a conversion under this Ordinance.”
Reconversion could be either because of one’s own thinking, or through somebody else persuading them. It can be argued that the proviso is concerned with what is popularly known as ‘ghar wapsi’ (homecoming). In effect, it means that some individuals or organisations have been given a license to do whatever they want to bring their ‘deviant’ friends back to the folds of the ‘parent’ religion and in the process, whatever they do shall not be described as ‘abetment, convincing or conspiracy’.
Held to ransom by one and all
Section 4 of the UP law enables any person who is related to the one converting by blood, marriage or adoption to lodge a complaint. Leaving aside one’s parents and siblings, it means that even one’s cousins (progenies of uncles from both sides) could argue to be related by blood and complain. Next is ‘related by marriage’. If they mean spouses, they should have spoken of spouses. However, the brothers/sisters of one’s spouse and the spouses of one’s brothers and sisters are also arguably related by marriage. Adoption too is amusing. This means even your adopted son or daughter could object to your conversion and lodge a complaint! This means that an inter-faith couple can be held to ransom by all such people.
Section 9 of the UP law defies common sense. It creates a second hurdle in the form of objections from the public after the conversion has taken place. The conversion will be confirmed only when this hurdle is also crossed. Why, we do not know. Do they think that the cumbersome procedure including the so-called police inquiry could also be manipulated? Then why did they enact it in the first place? The only plausible reason of this is to make the whole thing so difficult that it deters people from conversion.
The MP and the Odisha Acts provided for one-year punishment. The UP law raises it from one year to up to five years. The so-called ‘mass conversion’ attracts three to ten years jail. The motive behind such harsh punishments should be obvious.
Section 5(2) of the UP law provides for compensation of up to Rs 5 lakh to ‘victims of conversion’. They have not bothered to explain the rationale for this. It could perhaps be argued that the philosophy might be similar to that of compensation to rape victims. In any case, if they seek to compensate, it would mean that they believe that someone who converts undergoes some sort of mental trauma. How, no one knows.
Unlimited powers to police
Section 8(3) of the UP law mandates that the person concerned and the convertor both have to give notices and the district magistrate shall get an inquiry conducted through the police with regard to real intention, purpose and cause of the proposed conversion.
Needless to say, this gives the police unlimited powers, which will, in all probability, be abused. It is well known that police in India have been acting as the hatchet men of the ruling party. What prevents the police from fabricating an intelligence report that a proposed conversion violates the provisions of this law? The onus will then be on the affected party to move the high court and fight a long and expensive legal battle.
Section 12 of the UP law is amusing. The burden of proof that the conversion was ‘lawful’ lies on the person who has ‘caused’ the conversion. They do not bother to ask the person who has converted – his or her opinion does not matter at all. The government seems to be more interested in prosecuting and harassing the ‘convertor’.
For the sake of argument, even if it is granted that the government is keen on prohibiting forcible conversions, all that it needs is that the converted person be asked to depose before a judicial magistrate within a certain period of conversion and submit the statement to the government.
Recently, the Allahabad high court held, “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. Interference in a personal relationship would constitute a serious encroachment into the right to freedom of choice of the two individuals.” The Karnataka high court held essentially the same thing. The Delhi high court held that an adult woman was free to reside wherever she wished and with whomsoever she wished and directed the police to counsel the petitioner and the parents not to take the law into their hands or threaten either the woman or the man.
The UP law goes clearly against these judgments and is therefore likely to be struck down as ultra vires of the constitution. We are constrained to infer that the ulterior motive of such a harsh law and provision of stringent penal provisions at every step appears to be nothing but harassment. The law has quite understandably not used the infamous words ‘love jihad’ in it, but people know the political agenda behind it better.
Dr N.C. Asthana, a retired IPS officer, has been DGP Kerala and a long-time ADG CRPF and BSF. Views are personal. He tweets @NcAsthana.