Woman's Autonomy Can't Be Denied Under the Garb of Protection: Petition Opposes UP Ordinance

The application filed by the Association for Advocacy and Legal Initiatives also says the anti-conversion law promotes right-wing conspiracy theories such as 'love jihad' and 'ghar wapsi'.

New Delhi: Intervening in the proceedings against the anti-conversion ordinance promulgated by the Uttar Pradesh government, a women’s rights group has said that the law promotes right-wing conspiracy theories such as ‘love jihad’ and ‘ghar wapsi’, while denying a woman’s right to autonomy.

The application filed by the Association for Advocacy and Legal Initiatives was accepted by the Allahabad high court. According to LiveLaw, the application alleges that the ordinance has a ‘disproportionate impact’ on the constitutional rights of women, as well as an egregious impact on the constitutional rights of all citizens.

The organisation has also opposed the UP government’s claim that conversion for marriage is not out of choice but solely due to the intervention of personal law. It said that there is no conflict in law between an individual’s right to choice in marriage and the right to practice a religion of one’s belief, as the Special Marriage Act allows inter-faith marriages. It said:

…there is no compulsion to convert one’s religion under personal laws to exercise the choice to marry someonc outside one’s faith. It is only those persons who wish to practise the faith of their marital partner who choose to convert their religion for the purpose of marriage.

The organisation says there is no systemic compulsion to convert one’s religion to marry a person of another religion.

The application says by outlawing conversion for the sole purpose of marriage, the ordinance “infantilizes the legitimate choice made by an adult person” who voluntarily chooses to opt for a way of life by converting their religion to their spouse’s. The organisation has cited the Supreme Court’s verdict in Hadiya case which says the state cannot interfere in the private lives of citizens, especially in affairs pertaining to the choice of spouse in marriage.

The ordinance prevents women from exercising their autonomy and right to take decisions as adults under “the garb of protection”, the organisation says, according to LiveLaw. It adds:

The impugned Ordinance if tested with strict scrutiny, reveals that the absence of a narrow definition of “aggrieved person”, and the broad provision allowing family relatives to file FIRs, leads to complete annihilation of the individual autonomy and liberty of women who are given no say in determining the legitimacy of their conversion if it is followed by marriage. The impugned Ordinance promotes gender stereotypes which views the right of the family or community as supreme and while treating women as repositories of ‘honour’, deprives her of her personality, privacy and dignity.

By providing enhanced punishment for the conversion of a woman, the ordinance presents women as the ‘weaker’ partner in a marriage, the application says. “Such notions when reinforced by statutes promote gender stereotypes that are prejudicial to the interest and right to equality of women, and fail to pass the test of strict judicial scrutiny,” it says.

Also Read: Legal Howlers in UP’s ‘Anti-Conversion’ Law Expose its Real Intent

Strengthens conspiracy theory of love jihad, promotes ‘ghar wapsi’

The Association for Advocacy and Legal Initiatives adds that ordinance “is a legislative attempt to strengthen the sentiment that marriages solemnized between persons born to different religions are a social evil which is being perpetrated by Muslim men who marry Hindu women, and that the same poses a threat to the Hindu community”.

It says in Uttar Pradesh, the rhetoric of ‘love jihad’ has been allowed to “run riot and vigilante groups and relatives of young Hindu women have ‘villainized’ the Muslim men with whom they are in consensual relationships”. Judicial institutions cannot remain “oblivious” to such ground realities, the application says.

Section 3 of the ordinance 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. This, the application says, creates an “unreasonable classification” between “conversion and reconversion” under.

“The distinction between conversion and reconversion is not based on any rational classification having a proximate nexus with a legitimate object, and is thus arbitrary in nature. The only permissible classification ought to be between free and voluntary conversion and forced conversion, irrespective of the earlier religion of the person converted.”

Such ‘arbitrary’ classification leads to the “irresistible conclusion” that the ordinance seeks to provide “legal sanction to the notion of ‘Ghar Wapsi‘ propagated by various right wing Hindu organizations in the state”.

A ‘ghar wapsi’ in Agra in 2014. Credit: PTI

Violates the right to privacy, reverses burden of proof

By making the procedure of declaration mandatory, the ordinance “pierces the zone of privacy” in which an individual chooses to exercise their right to convert their religion, and “makes public the most intimate and private spheres of an individual’s personhood”, the application says, according to LiveLaw.

The organisation submitted that it is established that in any criminal case, the burden of proof as a general rule shall always be on the prosecution to prove the guilt of the accused person.

However, the ordinance presumes that every religious conversion is unlawful and places the burden of proof on the person who has facilitated the conversion to prove that it is not unlawful.

“The reversal of burden of proof is only permissible when there are some ‘special facts’ within the knowledge of the accused which the accused can easily prove or disprove, and the same has been held to not result in unreasonable curtailment of the rights of the accused. However, in the impugned Ordinance, the burden is placed on an accused who does not have any such special knowledge.”

Since the ordinance was promulgated, at least two cases have provided credence to the assertion that it seeks to target Muslim men. In one instance, police in Bareilly admitted that three Muslim were wrongly framed under the law. In another case, the government admitted in court that it did not have evidence that two Muslim men accused of trying to convert a Hindu woman. The woman supported the Mulsim man, saying he was framed by her husband because he had supported her when she faced domestic violence and “mental torture”.