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LEGISLATIVE INTERFERENCE IN THE RIGHT TO MARRIAGE AND RELIGION

ABSTRACT:

“The freedom to convert is fundamental to freedom to religion.” – Bob Inglis

The Article 16 of the United Nations Declaration on Human Rights[1], “Every man and woman is free to marry whomever they wish, regardless of race, religion, language, nationality, economic status, etc., as long as there is full and free consent and is at the right age.” The same principle is even adopted in our Indian constitution under Article 21- Right to life[2]. In India, there are some anti-conversion laws which can hinder the right to religion and the marriage of a person. The paper attempts to understand why these laws were implemented in various states and whether they can interfere with a person’s right to marriage and religion. Further, the paper tries to look into the judicial response to these laws. Finally, in the end, the paper tries to analyse the entire situation and what we can expect from such laws in the future.

KEYWORDS:

Religion, Conversion, Inter-faith Marriage, Anti-conversion Legislation, Muslims, Constitutional Rights, Violence

INTRODUCTION:

There is no national-level anti-conversion law in India although several laws were tabled back in the 1950s and 60s but no such law was passed at the national level. Three unsuccessful attempts were made post-independence to introduce national anti-conversion legislation in the form of the Indian Conversion (Regulation and Registration) Bill, 1954; Backward Communities (Religious Protection) Bill, 1960 and Freedom of Religion Bill, 1978. Thereafter, no attempt was made to enact a Central anti-conversion law. India is officially a secular state which means we do not have recognized any particular state religion. State-level laws, however, do exist in India. These were first created by the princely states i.e. when India was completely under the dominance of Britishers. The princely states which are under the domestic rule of Indian Maharajas had enacted certain anti-conversion laws because of the activity of British missionaries, various missionaries from the United Kingdom were active here and they were focused on efforts to convert vulnerable populations to Christian religion on the basis of forcible or fraudulent means, inducement or allurement by food, education, money, etc. This is the reason these laws were implemented by various states. For instance, the Rajgarh State Conversion Act, 1936, the Patna Freedom of Religion Act, 1942, etc. Till date, there are eight such states where such anti-conversion laws are implemented namely Arunachal Pradesh, Gujarat, Madhya Pradesh,  Odisha, Himachal Pradesh, Chhattisgarh, Jharkhand and Uttarakhand.

In the present time, the issue is that certain groups have alleged that large-scale religious conversions are being noticed throughout India under the facade of love and marriage. Various politicians, groups of people have termed this as ‘Love Jihad’. However, there is no evidence in place of any such conspiracy by any group or any particular religion. For finding valid evidence, an SIT probe was set up into the matter in Uttar Pradesh and it did not find any evidence of any such grand conspiracy in these allegations, but it did find certain cases where some kind of fraud had been perpetrated.[3] In response to this, an ordinance was passed recently in Uttar Pradesh that basically tries to crack down on the cases of religious conversion for the purpose of marriage, and several other states including Karnataka and Haryana are set to pass their own laws on the subject. This is obviously a sensitive issue that may endanger the peaceful coexistence of people of different religions and faiths.

RESEARCH METHODOLOGY:

This descriptive and secondary data-based analysis is conducted to understand the legislative interference in a person’s right to marriage and religion and the anti-conversion laws which are being implemented by various states. The data collected for the purpose of research is mostly from various articles, journals, newspaper reports, etc.

REVIEW OF LITERATURE:

“The Ethics of State Interference in the Domestic Relations” is an article in Internal Journal of Ethics which is a journal by Ray Madding McConnell this article basically reflects upon the interference of State in domestic matters. According to this article, the state is denied interference in domestic matters of one’s household. The protest towards state interference was talked about in this.

“Criminalizing Religious Conversions: For Better or For Worse” is an article written by Milind Rajratnam which tries to analyse ‘The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020’. It states that the ordinance wouldn’t only have a deterring effect on an individual’s freedom of choice but would even be antithetical to the secular fabric of the country.

“Prevention of Interference with the Freedom of Matrimonial Alliances (in the name of Honour and Tradition): A Suggested Legal Framework” is a report by the Law Commission of India. It focused upon various dimensions of inter-faith marriages. It states that punishing the couple and pressurizing the family is a blatant violation of rule of law.

THE UTTAR PRADESH PROHIBITION OF UNLAWFUL CONVERSION OF RELIGION ORDINANCE, 2020:

The Uttar Pradesh Cabinet recently announced a draft ordinance which tries to keep a check on “unlawful religious conversions” and “interfaith marriage” which has the only intention to convert one’s religion, with the provision of jail term upto 10 years. The ordinance outlaws religious conversion by marriage, several aspects of this law have come into question, including the fact that it shifts the burden of proof onto the accused to prove that the conversion is bonafide.

According to this “Uttar Pradesh Vidhi Virudh Dharma Samparivartan Pratishedh Ayadesh 2020”(Prohibition Of Unlawful Religious Conversions),  religious conversions for the purpose of marriage is a non-bailable offence and the burden of proof will be on the defendant to show that conversion was not for marriage and was done forcibly through atrocity or cheating. The period for the notice to the district magistrate for the religious conversion is 2 months. In case the conversion is done by the woman with the sole intention of marriage, the marriage would be declared as null and void. Converting a person by offering him/ her an “allurement” is defined as a criminal offence under Section 3 of the Ordinance.

The term “allurement” is defined under Section 2(a) of the ordinance to include even a gift to the individual to be converted. According to Section 5 violations of the provisions of the law would lead to a jail term for not less than one year which is extendable to five years with a fine of Rs. 15,000. If the woman who is converted is a minor or a woman from the minority communities that is the scheduled caste (SC) or scheduled tribes (ST) group then the jail term will be a minimum of two years which is extendable upto ten years with a fine of Rs. 25,000. This ordinance also lays down certain strict actions which can be taken, including cancellation of registration of social organizations which conduct mass conversions. This would lead to a jail term of not less than three years and which is extendable upto ten years and a fine of Rs.50,000. If a person intends to convert his/her religion after marriage, he/she needs to submit an application to the district magistrate two months in advance of the marriage. A proper investigation takes place, and the permission for the conversion is granted after nothing apprehensive is found in the investigation.

The main question which needs to be answered is what need did the state of Uttar Pradesh feel to bring about this law? The answer by the cabinet minister of UP, Mr. Sidhart Nath Singh was “the state took this decision for maintaining law and order in the state and to ensure justice to the women, especially those who belong to scheduled caste and scheduled tribe.”

Yogi Adityanath, the chief minister of Uttar Pradesh, had earlier referred to a decision given by the Allahabad High Court that said, “Conversions just for the sake of marriage is not acceptable.” On the contrary, the Allahabad High Court a few days later said that its earlier verdict does not lay down “good law”. In the verdict passed, the court observed: “Rights 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 rights to freedom of choice of two individuals”.[4] The judges even cited the Supreme Court’s judgement in K.S. Puttaswamy v. UOI, which was a landmark judgement on the right to privacy, the judge remarked, “The autonomy of the individuals is the ability to make decisions on vital matters of concern to life.” The central agency according to their reports has not recorded a single case related to ‘Love Jihad’, and the same has been notified by the centre to the parliament. The Census also does not have any record of interfaith marriages and the centre has not conducted any nationally representative survey which could provide effective data about such marriages.

CONSTITUTIONAL PROVISIONS:

There are various provisions in the ordinance which do not only violate the Constitution of India but also can incite violence in the masses if implemented.

  • Article 21 of the Indian Constitution states that “No person shall be deprived of his life or personal liberty except according to procedure established by law, nor shall any person be denied equality before the law or the equal protection of the laws within the territory of India.” The anti-conversion laws require a 30-day in some cases 60-day notice of intention to change one’s religion. For example – In the state of Uttar Pradesh, the police need to decipher and investigate basically what was the reason behind the conversion. Following this, the converted person is supposed to appear before the authority to confirm his identity. Even his/her relatives can lodge an FIR against the conversion which took place. But there might be sometimes certain other reasons for which one wants to convert his/her religion. “In some instances, Hindus have converted to Buddhism to discard the oppression of caste identity. Subjecting a person’s choice to an investigation, which can often end up denying them the right to change their religion, is a huge blow to their dignity and liberty and Article 21 rights”.[5]
  • Article 25 of the constitution guarantees “freedom of conscience and allows all individuals to freely profess, practice and propagate their religion, subject to public order, health, and public morality”. Even the conversion for marriage is penalised in these anti-conversion laws. In these cases, the government interferes irrespective of whether the consent was given or not. The “right to propagate” religion includes the right to disseminate and educate others about one’s own religion. But anti-conversion laws do not pay any heed to such an argument.

JUDICIAL POINT OF VIEW:

Hon’ble Supreme Court of India has given various verdicts in favour of inter-caste and inter-faith marriages.

  • Hadiya judgement (2017)[6] is one of the prominent judgement by the Supreme Court which reinforces the idea that the state should not interfere in the matters of marriage. The judge remarked, The ideas of dress and of food, of ideas and ideologies of love and partnership are within the central idea aspects of identity. Neither the State nor the law can dictate a choice of partners and limit the free ability of every person to decide on these matters”.
  • Puttaswamy or Privacy judgement (2017)[7]In this case,the court held that “Autonomy of the individual was the ability to make decisions in vital matters of concern to his own life.”
  • In Lata Singh Case (1994)[8], the Supreme Court held that Nation is going through a “crucial transformational period” and the Constitution will remain strong only if we accept the plurality and diversity of our culture”. “Relatives disgruntled by theinter-religiousmarriage of a loved one could opt to ‘cut off social relations’ rather than resort to violence or harassment.”
  • Soni Gerry Case 2018[9]The SC warned judges from playing “super-    guardians”, succumbing to any kind of sentiment of the mother or the egotism of the father”.
  • Noor Jahan Begum v. State of U.P. (2014)[10]  and Priyanshi v. State of U.P. (2020)[11]In these two cases, the Allahabad High Court held that converting religion purely for the purpose of marriage is unlawful. If the conversion is done for spiritual reasons it may be considered as valid. However, in Priyanka Kharwar v. State of U.P. (2020)[12], a division bench of Allahabad High Court overruled the earlier cases on the grounds that a person has the right to choose a partner or live with a person of choice was part of a citizen’s fundamental right to life and liberty (Article 21). It also held that earlier court rulings upholding the idea of religious conversion for marriage as unacceptable are not good in law.

EXTENT OF STATE INTERFERENCE:

The interference of the State in domestic matters of the citizens has always been a cause of concern. The state has always been denied to interfere in such matters. Even the judiciary uphold this, ‘The 242nd Report of the Law Commission on Prevention of Interference with the Freedom of Matrimonial Alliances’[13]can be seen in this regard. Although this report mainly focused on Honour Killings, it even gave a glimpse into the dimensions of the problem of interfaith marriages. It expressly stated:

“… inter-caste marriages and handing over punishment to the couple and pressurizing the                   family members to execute their verdict by any means amount to flagrant violation of rule of law and invasion of personal liberty of the persons affected.”

Three decisions of Supreme Court, Gian Devi vs. Nari Niketan[14]Lata Singh v. State of U.P[15]Bhagwan Dass v. State[16] uphold that if a married couple is living by their free will, then, nobody, even their parents, has the authority to interfere within their life. Especially looking at the Lata Singh judgement, the court gave the verdict that “This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes… We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple is not harassed by anyone nor subjected to threats or acts of violence…”.

ARGUMENTS IN FAVOUR OF STATE INTERFERENCE:

The citizens have two different points of view towards these laws, the ones who are in the favour of them make the following arguments to support their view-

  • To Prohibit Conversion For Sole Purpose Of Marriage – It is observed that many people only convert to some other religion for the sole purpose of marrying someone. Allahabad High Court’s judgement even earlier mentioned that conversion done with the sole intention of marriage is not acceptable, although afterward this judgement was overruled.
  • To Reduce The Vulnerability Of Minor Girls – This is to prevent the exploitation of girls at impressionable ages who may get “allured” easily under the pretext of marriage.
  • To Check Deceitful Intentions – the law will put a check on those outfits who have maleficent intentions to entrench and disrupt the social harmony of the society under the garb of marriage.
  • Special Marriage Act, 1954 – This states when there is SMA, 1954 which allows two individuals to solemnize their marriage through a civil contract where no religious formalities are required then what is the need to convert one’s religion for marriage.

ARGUMENTS AGAINST STATE INTERFERENCE:

  • Against Constitution – This law can be deployed as a tool to infringe upon the Fundamental Rights that are guaranteed under Articles 21 and 25 to the citizens of the country.
  • Against the Judgments of Various Courts – The Karnataka High Court has said that “the right of adults to marry a person of their choice is a fundamental right guaranteed under the constitution”. A bench comprising Justices Pankaj Naqvi and Vivek Agarwal overruled two of their previous judgements which stated that “religious conversions solely for the purpose of marriage were prohibited is incorrect and this does not lay a ‘good law’”.
  • Ambiguity – The phrases incorporated in the law such as ‘undue influence’, ‘coercion’ and ‘allurement’ are open-textured and are hence ambiguous which means they fail to provide a clear meaning.
  • Vilification of a certain section of the society – Citing a certain section of the society as a potential threat might pave the way to further marginalization of these communities.
  • Chasm in the Society – Such a law might institutionalize and give legal backing to the concept of anti-intermarriages will further distort the social fabric.

CONCLUSION:

The liberty of individuals must be the topmost priority of the state. The state must ensure that the rights of religion and marriage among consulting adults stay protected. The central and state government must ensure that the basic foundation of the country that is secularism stays intact and is strengthened. A government cannot intervene in one’s choice of a partner. A government can be strong if it is free from religious bias. The laws of the state should not be of such a nature that it chokes the citizens of the country just on the basis of security. If we want the country to develop we need to ensure individual’s liberty. The state is considered as a welfare state and that is the reason that it needs to also ensure that on one hand the right to marriage and religion is given to the individuals but on the other hand, it needs to make sure that under the garb of this no one is subjected to force conversion of religion or conversion under some kind of duress or misconception. There are various examples when individuals have changed their religion just to marry and after some time it comes out that all that was a façade to take undue advantage of their counterparts. Marriage is considered as one of the most sacred institutions and one should not take it lightly as it affects society both morally and legally.“Conversion to get married is a personal decision and cannot be criminalized, to do so is to violate the right to religion and the right to marry in accordance with one’s choice”.[17]

The irony is that our Indian courts are full of cases where Hindu men convert to Islam to have a second marriage. This is purely illegal, immoral and unconstitutional as the conversion is intended to commit a wrong which is divorcing a wife you otherwise have no valid ground to give divorce or for the purpose of having multiple wives. There can be no comparisons between such a person and one who wants to marry a person out of pure love.

                                                                                                  Sonakshi Singla

                                                                                 (ARMY INSTITUTE OF LAW, MOHALI)


[1] UNITED NATIONS, https://www.un.org/en (Last visited Aug. 7, 2021).

[2] INDIA CONST. art.21.

[3] Manish Sahu, SIT probe into ‘love jihad’ rules out conspiracy angle, outside funding, THE INDIAN EXPRESS, (Nov. 24, 2020, 04:22 PM), https://indianexpress.com/article/india/sit-probe-into-love-jihad-rules-out-conspiracy-angle-outside-funding-7063046/.

[4] Omar Rashid, Won’t Interfere In Personal Relations, Says Allahabad High Court, THE HINDU, ( Nov. 24, 2020, 02:03 PM), https://www.thehindu.com/news/national/other-states/we-dont-see-priyanka-kharwar-salamat-as-hindu-and-muslim-allahabad-hc/article33167558.ece.

[5] Milind Rajnatram, Criminalizing Religious Conversions: For Better or For Worse, BAR AND BENCH (Dec. 23, 2020, 09:00 AM), https://www.barandbench.com/apprentice-lawyer/criminalizing-religious-conversions-for-better-or-for-worse.

[6] Shafin Jahan v. Asokan K.M, 2018 SCC OnLine SC 343.

[7] K.S. Puttaswamy and Others v. UOI and Others, 2017 SCC OnLine 996.

[8] Lata Singh v. State of U.P., (2006) 5 SCC 475.

[9] Soni Gerry v. Gerry Douglas, 2018 SCC OnLine SC 7.

[10] Noor Jahan Begum v. State of U.P., 2014 SCC OnLine All 11820.

[11] Priyanshi v. State of U.P., 2020 SCC OnLine All 1643.

[12] Priyanka Kharwar v. State of U.P., 2020 SCC OnLine All 1382.

[13] LAW COMMISSION OF INDIA,https://lawcommissionofindia.nic.in/reports/report242.pdF (Last visited on Aug. 7, 2021).

[14] Shafin Jahan v. Asokan K.M, 2018 SCC OnLine SC 343.

[15] Lata Singh v. State of U.P., (2006) 5 SCC 475.

[16] Bhagwan Dass v. State, (2011) 6 SCC 396.

[17] Indira Jaisingh, Can the State Dictate what Religion you will Follow and who you will Marry?, NEWS CLICK, (Jan. 14, 2021), https://www.newsclick.in/Can-State-Dictate-Religion-Follow-and-MarrY.

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