As we know that India is a diverse country with many religions, caste, and different languages are spoken by the people all across the country. The Constitution of our country guarantees the freedom to profess, propagate, and practice any religion, and allows all religious sections to govern their own affairs in matters of religion; subject to public order, morality, and health. To date, there has been no central legislation restricting or regulating religious conversions. Further, in 2015, the Union Law Ministry stated that the Parliament does not have the legislative competence or such power to pass anti-conversion legislation. However, it is to be noted that, since 1954, on multiple occasions, Private Member Bills have been introduced in (but never approved by) the Parliament, to govern religious conversions.
Over the years, several states have enacted ‘Freedom of Religion’ legislation to restrict religious conversions carried out by force, fraud, or abatement. These are: (i) Odisha (1967), (ii) Madhya Pradesh (1968), (iii) Arunachal Pradesh (1978), (iv) Chhattisgarh (2000 and 2006), (v) Gujarat (2003), (vi) Himachal Pradesh (2006 and 2019), (vii) Jharkhand (2017), and (viii) Uttarakhand (2018). Additionally, the Himachal Pradesh (2019) and Uttarakhand legislations also declare a marriage to be void if it was done for the sole purpose of unlawful conversion, or vice-versa. Further, the states of Tamil Nadu (2002) and Rajasthan (2006 and 2008) had also passed similar legislation. However, the Tamil Nadu legislation was repealed in 2006 (after protests by Christian minorities), while in case of Rajasthan, the bills did not receive the Governor’s and President’s assent respectively.
Due to rising incidents of forced and fraudulent religious conversions, the Uttar Pradesh Law Commission also recommended for enacting a new law to regulate religious conversions. This led the state government to promulgate the recent Ordinance in 2020.
On November 27, 2020, the Uttar Pradesh (UP) Prohibition of Unlawful Conversion of Religion Ordinance, 2020 was enacted by the state government. The UP ordinance prohibits any religious conversion due to coercion, force, undue influence, allurement, fraud or by marriage and makes such a marriage liable to be declared void. These Ordinances seek to regulate religious conversions and prohibit certain types of religious conversions (including through marriages). It also makes such an act of conversion a non-bailable criminal offence. This article looks at existing anti-conversion laws in the state Utter Pradesh.
WHAT IS THE NEED FOR SUCH AN ORDINANCE?
There has been a lot of discussion over the 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.
To get a knowledge about 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.
WHAT DOES THE UP ORDINANCE DO?
The UP Ordinances define conversion as renouncing one’s existing religion and adopting another religion. However, the Ordinance exclude re-conversion to immediate previous religion in UP, from this definition. These Ordinances prescribe the procedure for individuals seeking to undergo conversions (in the state of UP) and declare all other forms of conversion (that violates the prescribed procedures) illegal.
• Procedure for conversion:
These Ordinances require:-
- Persons wishing to convert to a different religion, and
- Persons supervising the conversion (religious convertors in UP, and religious priests or persons organizing a conversion) to submit an advance declaration of the proposed religious conversion to the District Magistrate (DM). The individuals seeking to undergo conversion are required to give advance notice of 60 days to the DM. However, the religious convertors are required to notify one month in advance. Upon receiving the declarations, the DMs are further required to conduct a police enquiry into the intention, purpose, and cause of the proposed conversion. Although it mandates the DM’s sanction as a prerequisite for any court to take cognizance of an offence caused by violation of these procedures.
The UP Anti-Conversion Ordinance also lays down a post-conversion procedure. Post-conversion, within 60 days from the date of conversion, the converted individual is required to give a declaration (with various personal details) to the DM. The DM will publicly exhibit a copy of the declaration (till the conversion is confirmed) and record any objections and problems which arise during the conversion. The converted individual must then appear before the District Magistrate to establish his/her identity, within 21 days of sending the declaration, and confirm the contents of the declaration.
• Prohibition on conversions:-
The UP Ordinance prohibit conversion of religion through means, such as:-
- Force, misrepresentation, undue influence, and allurement, or
- Fraud, or
They also prohibit a person from abetting, convincing, and conspiring to such conversions. Further, the Ordinances assign the burden of proof of the lawfulness of religious conversion to the persons causing or facilitating such conversions in the state.
• Complaints against unlawful conversions:
This Ordinance allows for police complaints, against unlawful religious conversions, to be registered by:
- The victim of such conversion,
- His/her parents or siblings, or
- Any other person related to them by blood, and marriage or adoption.
• Marriages involving religious conversion:
As per the UP Anti- Conversion Ordinance, a marriage is liable to be declared null and void, if:
- it was done for the sole purpose of unlawful conversion, or vice-versa, and.
- the religious conversion was not done as per the procedure specified in the Ordinance.
• Punishment for unlawful conversions:
There is Punishments which are prescribed under the UP Ordinance for offences by individuals for causing or facilitating the conversion are:
- If there is Mass Conversion (conversion of two or more person at the same time) then the punishment will be 3-10 years of imprisonment and fine of Rs 50,000 or more.
- If there is Conversion of a minor, women or person belonging to SC and ST then the punishment will be 2 – 10 years of imprisonment and fine of Rs 25,000 or more.
- If there is any other conversion then the term of imprisonment will be 1-5 years and fine of Rs 15,000 or more.
- There is also a penalty for violating the procedure for conversion which is 6 months to 3 years imprisonments and fine of Rs. 10,000 or more for the individual who is converted to another religion and 1-5 years of imprisonment and fine of Rs. 25,000 or more for the convertor who is converting another individual.
- There is no penalties and fine for concealment of religion professed, for the purpose of marriage.
Additionally, under the Ordinance the accused will be liable to pay compensation of up to five lakh rupees to the victim of conversion and repeat offences will attract double the punishment specified for the respective offence.
Further, it provides for the Session Court to try an accused person, at the same trial, for: (i) an offence under this Ordinance, and (ii) also for other offences he has been charged with, under the Criminal Procedure Code, 1973.
Arpit Gupta (Indore Institute of Law)