Constitutional Courts Should Strike Down The UP Anti-Conversion Law

By Amjed Ashraf

SINCE the promulgation of the Uttar Pradesh Prohibition of unlawful Conversion of Religion Ordinance 2020 by the Governor of the State–in exercise of the powers conferred on him by the grundnorm of the land–the moral as well as constitutional validity of it has been a huge subject matter of debate. No sooner had it enacted than it kicked up a storm across the legal realms of the country. Although the anti-conversion laws of such a nature already exist in several other states, the UP law is a draconian law of its own kind. The ordinance law in the first place owes its existence to a hypothetical, bogus, and dog whistle term of ‘Love-Jihad’. As the Government of India as such nowhere recognizes the notion of Love-Jihad, bringing a law against such a fictional notion, prima facie reflects the oblivious and dogmatic attitude of the State government. Nevertheless, there are numerous provisions in the ordinance, which per se flout the law of the land. In this article, we will try to scrutinize some provisions of it on a legal footing.

The Article 213 clause (1) of the Indian constitution empowers the governor of a State, to promulgate ordinances during recess of legislature. The provision explicitly mentions that “if the governor is satisfied that circumstances exist, which render it necessary for him to take immediate action he may promulgate such ordinances”. The apex court of the country in the case of Krishna Kumar Singh v State of Bihar, 2017 and various other cases has held that the President and Governor’s power under Article 123 and Article 213 respectively, is subject to judicial review. It thus implies that the ‘satisfaction’ and ‘immediate action’ must have a legal sanctity and the attainment of which ought not to be indeterminate, and vague. However, the procedure involved in the UP Anti-Conversion law stands contrary to such established precedents on the aspect that such circumstances, which could compel the governor to promulgate the ordinance were palpably and outright absent. Thus, the procedure taken to assent the ordinance is challenging to the core.

The ordinance under Section 3 prohibits conversion from one religion to another on the grounds of fraud, misrepresentation, coercion, allurement etc, or by marriage. It also states that no person shall abet, convince or conspire such conversion. Notwithstanding the said law, the conversion due to force, undue influence, has had to be void undoubtedly, but the use of terms like “allurement” and “convince” in the ordinance, are open to interpretation, hence ambiguous. It therefore allows the state to bring any act within the purview of the definition of such terms. Besides, the phrase ‘by marriage’ in it deems all marriages involving the religion conversion, as illegal, unless proven otherwise, thereby coming in repugnance with a citizen’s fundamental rights. It thereby directly infringes the Right to Life and Personal Liberty, and Freedom of Conscience and Propagation of Religion, guaranteed under Article 21 and 25 of the Indian constitution respectively. The ordinance crystal clearly eclipses the apex court’s ruling in the case of Shafin Jahan v. Asokan K.M 2018, that “the right to change of faith is part of fundamental right of choice.” It also overshadows the Allahabad High Court’s recent landmark verdict in the case of Salamat Ansari v. State of U.P, that “Right to live with a person of his/her choice irrespective of religion is intrinsic to right to life and personal liberty.” Furthermore, the proviso to Section 3 is as intransigent and inconsistent, as anything is. It deems the reconversion to previous religion not a conversion at all. It means that even if the reconversion is done by means of force, fraud, etc, it is valid under this act. The other legal loophole is that the ordinance while criminalizing the conversion by marriage, explicitly strikes to reverse the administration of criminal justice in the country by placing the burden of proof on the accused rather than the prosecution. It blatantly violates the legal principle of “innocent until proven guilty”, which is also an internationally recognized principle. Besides, the ordinance aims to infringe the Right to privacy of a person–which is a human right recognized internationally under instruments like Universal Declaration of Human Rights (UDHR) etc, also guaranteed by the constitution of India under Article 21–by giving the instrumentalities of state a free hand to curtail this right vis-à-vis marriage. In compliance with the KS Puttaswamy Case, the ordinance fails to conform to the three-fold test laid down therein. The law is also in repugnance with the Special Marriage Act of the Country. Apart from the legal apertures, the UP ordinance law is ostensibly patriarchal in nature. It undermines the dignity and conscience of women at large. Since its inception, it has hastily taken a heavy toll on the rights of minorities particularly the Muslims, which simply reflects the malafide intention on the part of the government.

In view of the same, the constitutional courts must step in and jettison the ordinance law before it can become a statute. Such laws sear into the social and secular fabric of the country and undermine the purpose of constitutionalism. It’s the duty of the judiciary to discourage such laws so as to safeguard the tenets of the highest norm of the land.

The views expressed in this article are the author’s own and do not necessarily reflect the editorial stance of Kashmir Observer

• The author is currently pursuing law at Central University of Kashmir and can be reached at [email protected]    

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