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UP’s ‘love jihad’ ordinance has chilling effect on freedom of conscience

The freedom of conscience means nothing if every act of religious conversion is going to be presumed illegal unless proven otherwise. The UP ordinance’s failure to prohibit forcible reconversion is also deeply disturbing.

Written by Abhinav Chandrachud | Updated: December 3, 2020 6:43:08 pm
The ordinance makes it a criminal offence for a person to convert another by coercion, misrepresentation, fraud etc, which is unobjectionable.

The governor of Uttar Pradesh has recently promulgated an ordinance to prohibit “unlawful conversion” from one religion to another. The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, as it is called, seeks to prevent “love jihad” in the state by criminalising, among other things, marriages carried out solely for the purpose of religious conversion. However, the ordinance, as it is presently drafted, dangerously imperils the freedom of conscience and the right to profess, practise and propagate religion under Article 25 of the Constitution.

The ordinance makes it a criminal offence for a person to convert another by coercion, misrepresentation, fraud etc, which is unobjectionable. A marriage solemnised for the “sole purpose” of unlawfully converting the bride or the groom is required to be declared void by the competent court. A person who wishes to convert to another religion (including to Hinduism) now has to follow a somewhat cumbersome process — issuing a declaration to the district magistrate, both before and after the conversion, and subjecting oneself to an enquiry by the district magistrate.

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However, there are several provisions in the ordinance which could plausibly be identified as unconstitutional. For instance, the ordinance makes it a criminal offence to convert a person by offering her an “allurement”. The term “allurement” is defined very broadly, to include even providing a gift to the person who is sought to be converted. This means that if a person offers a copy of the Bhagavad Gita to a non-Hindu, and the non-Hindu decides to convert to Hinduism after reading it, the conversion could be said to have taken place by “allurement” since it occurred after a gift was given to the convert. Under the ordinance, “allurement” can also mean telling the person sought to be converted that she will have a “better lifestyle” if she converts, or that she will incur “divine displeasure or otherwise” if she does not.

The use of the words “or otherwise” in the definition of allurement is puzzling. Is it sought to be thereby conveyed that if a preacher simply encourages her listeners to convert to another religion by arguing that her religion has more persuasive tenets than theirs — this amounts to illegal “allurement” under the ordinance? The essential prerequisite of a criminal law is that it has to be precise. A person cannot be put behind bars for doing something that a penal law does not clearly and unequivocally prohibit. On this touchstone, the definition of “allurement” leaves much to be desired.

There can be no quarrel with the ordinance’s premise that converting somebody by fraud or misrepresentation is wrong. After all, no person should be forced to convert to another religion against her will. In fact, though the members of the Constituent Assembly included the right to “propagate” one’s religion in the chapter on fundamental rights, they considered it a “rather obvious doctrine” that this would not include forcible conversions. “Forcible conversion is no conversion”, Sardar Vallabhbhai Patel had said in one of the sub-committees of the assembly, adding, “we won’t recognise it.” However, the UP ordinance goes beyond this principle and does something quite strange.

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It says that “reconversion” to a person’s previous religion is not illegal, even if it is vitiated by fraud, force, allurement, misrepresentation and so on. In other words, if a person converts from Religion A to Religion B of her own volition, and is then forced to reconvert back to Religion A against her will, this will not constitute “conversion” under the ordinance at all, and falls completely outside the ambit of the law. Through this peculiar provision, the law seems to send an unmistakable signal to its target audience: Prohibit illegal conversion to other religions, but look the other way if a convert is forced to reconvert back to ours.

Illegal conversion under the ordinance attracts a punishment of 1-5 years in prison. However, if the victim of the illegal conversion is a minor, a member of the Scheduled Castes or Scheduled Tribes or, strangely, a woman, the punishment is doubled — at 2-10 years behind bars. In other words, it does not matter who the woman is. She may be a highly educated CEO of a multinational company. Yet, if somebody converts her against her will, the punishment can go up to 10 years in prison, as against somebody who illegally converts her male subordinates, who will get five years in prison at the most. The ordinance unfairly paints all women with the same brush — assuming that all women, and not merely women from historically marginalised or economically weak groups, are gullible, vulnerable and especially susceptible to illegal conversion.

Perhaps the most striking provision of the ordinance is the one which deals with the burden of proof. Ordinarily, when someone makes an allegation that something has happened, it is up to her to prove it. The burden of proof in criminal cases is on the prosecution, and the presumption is that a person accused of committing an offence is innocent until proven guilty. The Uttar Pradesh ordinance turns this rule on its head. Every religious conversion is presumed to be illegal. The burden is on the person carrying out the conversion to prove that it is not illegal. The offence of illegal conversion is also “cognisable” and “non-bailable”, meaning that a police officer can arrest an accused without a warrant, and the accused may or may not be released on bail, at the discretion of the court. All this puts an incredible chilling effect on the freedom of conscience.

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In Rev Stainislaus v State of Madhya Pradesh (1977), a bench of five judges of the Supreme Court held that the fundamental right to “propagate” religion does not include the right to convert a person to another religion. In that case, the court had upheld anti-conversion statutes enacted by the states of Orissa and Madhya Pradesh, which imposed somewhat similar (even if slightly less extreme) restraints on the freedom of conscience and the right to propagate religion.

In view of the recent ordinance, perhaps it is now time to revisit that judgment. The freedom of conscience means nothing if every act of religious conversion is going to be presumed illegal unless proven otherwise. The UP ordinance’s failure to prohibit forcible reconversion is also deeply disturbing.

This article first appeared in the print edition on December 3, 2020 under the title ‘Law illegal’.  The writer is an advocate at the Bombay High Court and the author of Republic of Religion: The Rise and Fall of Colonial Secularism in India (Penguin)

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