Apart from being bad in law, the UP ordinance law is regressively patriarchal in nature
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 matter of debate. No sooner was it enacted than it kicked up a storm across the legal realm. Although anti-conversion laws of such nature already exist in several other states, the UP law is a draconian one 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 recognises 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 float the law of the land. In this article, we will try to examine 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 an 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 legal sanctity and the attainment of its aims 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 open to outright legal challenge.
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, etc, ought 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’ deems all marriages involving religion conversion as illegal, unless proven otherwise, thereby coming in repugnance with a citizen’s fundamental rights. It thereby directly infringes on 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 clearly eclipses the apex court’s ruling in the case of Shafin Jahan v. Asokan KM, 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 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. Another legal loophole is that the ordinance while criminalising 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 recognised principle. Besides, the ordinance aims to infringe on the Right to Privacy of a person–which is a human right recognised 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 being bad in law, 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 tear into the social and secular fabric of the country and undermine the purpose of constitutionalism. It is the duty of the judiciary to discourage such laws so as to safeguard the tenets of the highest norm of the land.
The writer is studying Law at Central University of Kashmir. [email protected]