The secular structure of the Indian State and the liberty of faith and worship guaranteed to every citizen and enshrined in the Constitution of India, have been gradually corroded by a consistent process of dilution. The recent move of the UP Government towards invalidating religious conversions intended solely for the purpose of marriage through the Uttar Pradesh Prohibition of Unlawful Religious Conversion Ordinance, 2020 is a striking example of this.

The ordinance was passed by the UP State Government on 24th November 2020 and received the assent of Governor Anandiben Patel on 28th November 2020. This enactment is an unabashed advocation of the anti-Islamic stance of the BJP Government in the state led by Chief Minister Yogi Adityanath and has been glorified as a law to combat “Love Jihad”, a conspiracy theory holding Muslim men as culprits for enticing non-Muslim, particularly Hindu women into marrying them only to induce them into adopting Islam. Following the same footsteps, the states of Uttarakhand, Himachal Pradesh and Madhya Pradesh, have also passed anti-conversion laws in 2020.

History Of Anti-Conversion Laws

Anti-conversion laws are regulations intended to curb religious conversions achieved through employment of force, fraud, deception or allurement. Such laws were initially enacted by the Princely States including Kota, Bikaner, Jodhpur, Raigarh, Patna, Surguja, Udaipur, and Kalahandi during the British Rule in India in order to preserve Hindu religious identities against the backdrop of growing popularity of Foreign missionaries. Being Indian was perceived as imparting a sense of identity synonymous with being Hindu which caused Muslims and Christians to be viewed as aliens.

Post-Independence, the newly established State was hesitant to legislate any such laws at the Union level which would have generated communal hostilities and endangered the unity and integrity of a pluralist nation with a multitude of distinct and diverse ethnic and religious groups.

However, from 1960s onwards and in the context of widening appeal of right-wing Hinduism, anti-conversion laws emerged at the level of states and Orissa became the first to adopt an anti-conversion law ironically named as the Orissa Freedom of Religion Act in 1967. Other states quickly jumped the bandwagon including Madhya Pradesh, Tamil Nadu, Andhra Pradesh, Arunachal Pradesh, Chattisgarh, Jharkhand, Gujarat, Himachal Pradesh and Rajasthan.

The statutes prohibited conversion, attempt or abetment of the same, directly or indirectly, of any person from one religion to another by use of force, allurement, inducement, misrepresentation or any fraudulent means. Interestingly, the meaning of the constituent elements was conveniently left ambiguous to widen their ambit of interpretation, encompassing a multitude of acts within their scope.

Another remarkable feature is the requirement of informing the District Magistrate of such conversions prior to the performance of conversion ceremony, which is a blatant infringement of a declared civil right, personal choice and privacy.

Provisions Of The Up Ordinance 2020

The UP Ordinance of 2020 has derived its essential character from the framework of the above mentioned statutes. Section 3 of the said Ordinance forbids exercising misrepresentation, force, undue influence, coercion, allurement or any other fraudulent method or using the institution of marriage for religious conversion of any person, abetment, attempt, or conspiracy to commit the same. Contravention of the same attracts imprisonment for one to three years and fine of not less than rupees fifteen thousand. This offence is non-bailable (bail can only be granted by a Magistrate or Judge) and cognisable, thereby allowing the police to take action without a warrant or any prior authorisation.

A notable aspect is that minors, women and members of the Scheduled Castes and Scheduled Tribes have been specifically identified as groups more “vulnerable”, as manifested in the enhanced punishment of imprisonment for two to ten years and fine of not less than rupees twenty five thousand for offences committed with regard to these persons.

Mass conversions (two or more persons) invites a punishment of imprisonment for three to ten years and a fine of not less than rupees fifty thousand. Any person intending to convert to another religion must provide a notice to the District Magistrate sixty days in advance and such officer upon receiving information must conduct an enquiry into the genuineness of the said conversion.

Criticism
The UP Chief Minister in promulgating this Ordinance placed reliance on a judgement of a single-judge bench of the Allahabad High Court which outlawed religious conversions only for purposes of marriage. However, this ruling of September 2020 was overruled as “not a good law” by a two-judge bench of the same Court in November 2020 where it held that the decision of an adult individual to choose their partner irrespective of their religion is “intrinsic to right to life and personal liberty."

A rather comprehensive criticism of this law was offered by former Chief Justice of Delhi High Court, also former Chairman of Law Commission, Justice A.P. Shah who reiterated that this law violates the provisions of Article 25 of the Indian Constitution which guarantees right to freedom of religion including freedom of conscience and free profession, practice, and propagation of any religion.

The law stands incongruent to one of the most fundamental principles of criminal law as it places the burden of proof not on the prosecution but on the accused who is required to establish as a fact that the said conversion was not in violation of this law. Thus there is a presumption of guilt and every conversion assumed to be illegal.

Another peculiar aspect is that while voluntary and wilful conversions are presumed to be illegal, even forced and unwilling reconversions are not barred. Conversions have been portrayed as antipathetic to the solidarity of the nation but reconversions to the “religion of our forefathers” i.e., Hinduism, a practice also proposed by the Shuddhi Movement launched by the Arya Samajists in early twentieth century, is welcomed.

One may question the inclusion of women and SC/ST persons, along with minors, among those more prone to such forced or illegally motivated conversions. On one hand, the law re-establishes the ideal of patriarchy, pronouncing women as secondary citizens possessing no freedom to choose for themselves and on the other hand, denies individual agency to even adult members of scheduled castes and scheduled tribes. If one follows the rationale adopted in formulating this statue, it may be safe to say that the law perceives and declares women and members of the SC/ST as persons incapable of independent decision-making regardless their age, education level and accomplishments.

Challenging The Ordinance
Only two days after the Ordinance was promulgated, Nadeem was apprehended by the police and booked under the same. He approached the High Court where he pointed out how the law has been abused by the State Police who are only targeting Muslim men marrying Hindu women and not vice-versa. He asserts that the Ordinance defies the Special Marriage Act, 1954 by adding new levels in degrees of prohibited relationships based on grounds of religion to incite communal tensions and create an atmosphere of terror and fear.

Amidst the controversy regarding the legality of the anti-conversions laws, petitions have been filed in the Supreme Court challenging the validity of the laws passed in UP and Uttarakhand. One of these is forwarded by Advocates Vishal Thakre, Abhay Singh and another who have urged the court to direct the states:
Not to give effect to impugned provisions/ordinance and withdraw the same or in the alternative modify the said bill” for it “disturbs the Basic Structure of the Constitution as laid down by Law.”

Another plea has been filed by the NGO Citizens for Justice and Peace (CJP) which argues that the laws encroach upon the right to personal liberty and right to freedom of religion as conferred upon citizens by Article 21 and Article 25 respectively of the Indian Constitution. Some of the provisions of the Ordinance have been described as “oppressive, horrible...and absolutely obnoxious.”

In its response, the Apex Court on 6th January 2021 has issued notice to both the States seeking a response within four weeks. But at the same time, the Court has refused to pass stay orders against the laws.

Conclusion
Anti-conversion laws were legislated by the State Governments aspiring to maintain “peace” and “harmony” and restore “public order” but have in fact caused shrinkage of the secular fabric of the nation. In reality, conversions and inter-faith marriages pose a threat to the hegemony of the upper caste Hindus and the laws reverberate the Islamophobic, regressive, repressive and chauvinist attitudes of the Hindu extremists.

Bestowing utmost paramountcy to spiritual sincerity of the conversions is only a facade of the ongoing Hindu nationalist agenda. It is a glaring example of the State’s continuous efforts to invade the private realm of its citizens , denying them the control of personal decisions of their life. Indeed the laws are a blatant transgression of the Constitutional liberties and protection accorded to each citizen of the nation and must be struck down by the Court to preserve the democratic ideals of a nation ruled by law and a Constitution.