Love Jihad: The Ordinance and Constitutionality A detailed analysis of a deeply communal and sexist law

17, Dec 2020 | Mihir Desai

Tracing the history of anti-conversion laws from the 1960s to the enactments to ‘prevent love jihad’ legislation, Senior Advocate and Human Rights Defender Desai argues how these laws, seen historically, are a transformation from a hesitant Hindu right wing nationalism to a highly bellicose- no holds barred avatar evidenced at present; all in all, a litmus test for India’s Constitutional Courts.

“86. The right to marry a person of one’s choice is integral to Article 21 of the Constitution. The Constitution guarantees the right to life. This right cannot be taken away except through a law which is substantively and procedurally fair, just and reasonable. Intrinsic to the liberty which the Constitution guarantees as a fundamental right is the ability of each individual to take decisions on matters central to the pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty. The Constitution exists for believers as well as for agnostics. The Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity. The law may regulate (subject to constitutional compliance) the conditions of a valid marriage, as it may regulate the situations in which a marital tie can be ended or annulled. These remedies are available to parties to a marriage for it is they who decide best on whether they should accept each other into a marital tie or continue in that relationship. Society has no role to play in determining our choice of partners.”[1]

The above mandate of the Supreme Court in the famed Hadiya case has been completely bypassed  in the UP Ordinance of love jihad. And the gloves are off. As soon as the UP Ordinance concerning love jihad was passed (November 2020) arrests have begun and so has started the vigilante interference in purely private, voluntary, adult interfaith marriages which do not even involve conversion. No doubt even before and without the law, vigilante groups were already issuing and at times carrying out threats. Many times this task was left to the family members  and at times to the khap panchayats with the valorisation of honour killings. Undoubtedly the state authorities encouraged this  process and even prior to  the Ordinance, cases were filed many times by relatives claiming adult voluntary marriages to be kidnapping, rape and connected offences.

However now, the UP Ordinance, in effect legitimises this violence with state sanctity being taken to an unprecedented higher level. The stamp of legal approval to all kinds of harassment and targeting  has been given through this Ordinance. Unlike what the law pretends to do, it in fact has no real connection with  fraudulent, coercive or induced conversions. The purpose of the law is to stop conversions altogether from Hindu religion to any other, the purpose is to put an end to interfaith marriages especially if the man belongs to a religion other than Hinduism and of course the purpose is to facilitate conversions from other religions/ faiths to Hindu religion- by force, fraud or otherwise.   The object   of the law is to facilitate mob violence and generate an increased hatred towards Muslims and Christians and increase the victimisation of these communities. The other obvious purpose of the law is  to further entrench both patriarchy and caste system.

Many other state governments ruled by the BJP, such as Madhya Pradesh, Karnataka, Assam, etc. have promised to bring in similar laws very soon. Even those states like Madhya Pradesh which already have an anti conversion law are already excited by the prospect of having a much more draconian law.

The earlier anti conversion laws were euphemistically called Freedom of Religion Acts. This sugar coating is now off. The new laws are going to be known  at least in official discourse as anti love jihad laws- whatever that means.

Anti conversion laws are not new to this country though over the decades they have become increasingly draconian and virtually make conversion impossible. There are a large number of common features in these laws while at the same time there are some major differences. In this Article, I will chart the course of these laws and  attempt to make out a case that these laws, seen historically, are  a transformation from a hesitant Hindu right wing nationalism to a highly bellicose- no holds barred avatar evidenced at present. Initially the declared target was primarily the converting Christians but over the decades the moving finger of these laws are also increasingly  targeting Muslims.

Very peculiarly, these are laws whose supporters and critics both rely on the fundamental right of freedom of religion as the reason to justify and oppose the laws. What is wrong with stopping conversions through force or fraud? Obviously nothing. But it depends on how force or fraud or allurement is defined. The definitions are so broad that they include everything. If I read the Bible, on my own, and get convinced by its tenets and want to follow the Christian faith, I still need to inform the authorities, file declarations and possibly convince them that my knowledge of Christianity is adequate for me to follow that religion. On the other hand, if I want to continue following the Hindu religion I need not convince anyone about my knowledge of Hinduism. My birth justifies it.

On the face of it, these laws  may appear neutral. Take the example of  cow slaughter laws which are justified on grounds of economic necessity but which are nothing less than an upper caste, Hindu majoritarian agenda being  carried out in practise. Similarly, the anti conversion laws are justified on grounds of freedom of religion but in actual practise, they do the exact opposite. As set out much earlier by South Asian Human Rights Documentation Centre:

“ There is undoubtedly no grounds to justify conversions brought about by violence or other equally illegitimate means of coercion. These violate the freedom of conscience guaranteed by Indian Constitution and prescribed in international human rights norms. However, the language adopted by the anti conversion legislations goes far beyond the protection of this right and in no way appears to be motivated by the desire to protect the freedom of conscience. Instead the danger of discriminatory abuse in their application is very real. The terminology used by these legislations transforms them from their purported role as protectors of the Constitutional rights to the violators of these very guarantees.”[2]

This was written in 2008. Now the situation, as will be explained below, is much worse.

One also needs to understand that at times  weather a law is draconian or not  does not depend so much on its wordings but on the socio economic political context and the extent of arbitrary power it gives to the executive. In the context where a majoritarian right wing Hindutva hegemony is established not just in the political sphere but also in the bureaucracy, the police force and more so within society at large, the law becomes nothing else but a weapon to target minorities and women. Traditionally Constitutional Courts have largely held that potential misuse or even actual misuse of a law is not a ground to strike down a legislation. However in recent times there has been a change- especially as was viewed in the Supreme Court judgment concerning decriminalising homosexuality[3] where one of the grounds on which some of the judges held it to be unconstitutional  was its effect and misuse.

In my view, the UP Ordinance along with similar other laws, apart from being draconian are also Unconstitutional. The Unconstitutionality flows from the following:

1. They are in violation of Article 25 of the Constitution- freedom of religion;
2. They violate Article 14 being manifestly arbitrary;
3. They also violate Article 15 being discriminatory against women and against scheduled castes and scheduled tribes;
4. They are in violation of freedom of speech and expression- Article 19(1) (a)
5. They violate right to privacy and personal liberty- thus in violation of Article 21
6. They violate the principal of secularism thereby violating the basic structure of the Constitution;
7. They are also unconstitutional by being overbroad and vague.

 

It is important to get one thing out of the way. In none of the laws including the UP Ordinance is there is an outright ban on conversions. Of course the UP law flirts with such a ban while dealing with marriage. Such a complete  ban would be struck down by any Constitutional Court. That is because my right to convert is essentially an inherent component of my freedom of conscience which is guaranteed by the Constitution. Article 25 (1) of the Constitution says: “Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.” It is also component of my right to privacy – my right to choose which religion to belong to or weather to belong to any religion at all.

On the face of it,  Article 25 of the Constitution, in the context in which  we are discussing, guarantees two fundamental rights. One, my right to believe in whatever religion I want including my right not to believe in any religion and to shift allegiance to any other religion- this is what is meant by freedom of conscience. Second, the right to ‘propagate’ religion- which obviously means the right of anybody  to spread the tenets of a religion and convince others to join that religion. Thus I have a right to convert myself into a believer of a different religion   and you have a right to convince me to believe in another religion and change my religion. This is precisely what is meant by ‘propagating’. While the first component  has been accepted by the Supreme Court as a fundamental right  in Stainislaus Case[4], the second component has been held not to be a fundamental right. Thus what the Supreme Court has said, in my view wrongly, is that while I have a fundamental right to convert, the fundamental right does not extend to convincing others to convert. This view of the Supreme Court in my opinion is wrong.

Obviously exercise of fraud or force cannot be allowed. I have a fundamental right to carry on any vocation but I don’t have the fundamental right to carry it on in a fraudulent manner. I have a fundamental right to settle in any part of India but that does not extend to my forcibly occupying your house. But if Article 25 protects my fundamental right to ‘propagate’ it obviously would include my right to propagate through a dialogue or teaching others to see my point of view concerning a particular religion.  In fact, during the Constitutional Assembly debates there was a heated argument along with an amendment being moved to drop the word propagate from the Article. However, a large number of members including members supported the inclusion of this word and T.T. Krishnamachari said:

“It does not mean that the right to propagate ones religion is given to any particular community or people who follow any particular religion. It is precisely open to the Hindus and the Arya Samajists to carry out their Suddhi propaganda as it is open to the Christians, the Muslims, the Jains, the Buddhists and to every other religionist so long as he does it subject to public order, morality and other conditions that have to be observed in any civilised Government. So it is not a question of taking away anybody’s rights.”      

Pandit Laxmikant Maitra argued:

“If we are to restore our sense of values which we have held dear, it is of the utmost importance that we should be able to propagate what we honestly feel and believe in. Propagation does not necessarily mean seeking converts by force of arms by the sword or by coercion. But why should obstacles stand in the way if by exposition, illustration or persuasion you could convey your own religious faith to others?”                           

K.M. Munshi went further and said that even if the word propagate was removed the fundamental right of freedom of speech and expression would allow religious communities to persuade other people to join their faith. The word propagate remained in the Constitution.

However, even going by the first component, namely a person’s right to change his religion,  the present UP Ordinance is Constitutionally bad as we discuss later. In any event, the Ordinance is anti women and discriminates against women, giving them no agency whatsoever and is therefore bad even on this count.

If a law was really meant to advance freedom of religion, such a law would penalise threats and violence against voluntary conversions, such a law would facilitate inter faith marriages. This is not what any of these laws do.

But first let us look at how historically these laws have evolved. It is interesting to note that till the UP Ordinance came about all earlier laws were called freedom of religion laws.

Historical Journey

Orissa and Madhya Pradesh

In 1967, Orissa became  the first State Government to enact anti-conversion law (styled of course as Freedom of Religion Law), soon to be followed by Madhya Pradesh in 1968. Both were ruled by coalition governments having Jana Sangh as a strong component. Essentially  these laws criminalise conversion through force, fraud or inducement (the Madhya Pradesh law used the word ‘allurement’). Force included threat of divine displeasure, fraud includes misrepresentation and inducement/ allurement  includes any gift or gratification in cash or kind and will include any benefit- pecuniary or otherwise. The punishment for violation  or abetment  would be imprisonment up to 1 year or fine up to Rs. 5000 or both. If the crime was in respect of a minor or a person belonging to SC/ ST community or a woman the punishment would be double. Prosecution could not be launched without prior sanction of district magistrate or person of equivalent rank.

While no one can argue that forcible or fraudulent conversions should be permissible , the definitions of force, fraud and allurement are very vague and any kind of persuasion can be covered by this. Similarly, the denial of agency to women and to persons belonging to SC/ ST communities began at this time. While marriage per se was not directly included, inclusion of women as specially vulnerable to conversion had the underlying rationale of attacking  conversion connected  to  marriage.

However under the Orissa Act there was no requirement of intimation or permission of any authority for conversion. Compared to the laws which have subsequently been passed this was a relatively benign law though still Constitutionally suspect.

The Madhya Pradesh Act had one major addition to the Orissa provision. It prescribed that whoever performs the act of conversion as a priest or otherwise or helps in converting any person will within such time after the conversion, communicate the fact of conversion to the District Magistrate failing which such person would be liable to be punished by imprisonment up to one year.   This was how for the first time the issue of intimation was introduced. Of course even here, the intimation had to be subsequent to the conversion and not prior and the responsibility of intimation was on the convertor not on the person getting converted.  Secondly, under these laws the converted person did not suffer any liability. He/ she could not be prosecuted and neither was the conversion automatically void if conditions were not satisfied.

In 1969, Madhya Pradesh formulated rules under the 1968 Act. The Rules prescribed that intimation to District Magistrate had to be given within 7 days after conversion, the District Magistrate was to keep a Conversion Register and was to give a report of conversions to State Government  on 10^th of every month. Orissa did not formulate any rules at that time.

Both the laws were challenged in respective High Courts. Madhya Pradesh High Court upheld the law, while the Orissa High Court struck it down on two grounds. First, it held that the definition of “allurement’ was very vague and would violate freedom of religion provisions. Secondly, it struck down the Act on the ground that the State Government did not have legislative competence to enact such a law. Schedule VII of the Constitution provides three lists dealing with legislative competence. List 1 provides for those matters concerning which only the Central Government/ Parliament can enact the law- List 2 is the State List and List 3 is the Concurrent list. Entry 97 of List 1 says that in respect of those items not listed anywhere else the Central Government alone will have power to enact laws. Since religion and related issues are not listed anywhere else the argument was that the Central Government alone could have passed such a legislation and since the Orissa law was passed by the State Government it was without legislative competence. The High Court upheld this argument and struck down the law.

Finally the challenge reached the Supreme Court and it was decided in  Stanislaus’s case by a five judge bench presided by the then Chief Justice A.N. Ray. The Supreme Court upheld the laws by holding that these laws do not interfere with the fundamental right of religion. It observed:

“20. We have no doubt that it is in this sense that the word ‘propagate’ has been used in Article 25(1), for what the article grants is not the right to convert another person to one’s own religion, but to transmit or spread one’s religion by an exposition of its tenets. It has to be remembered that Article 25(1) guarantees “freedom of conscience” to every citizen, and not merely to the followers of one particular religion, and that, in turn postulates that there is no fundamental right to convert another person to one’s own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the “freedom of conscience” guaranteed to all the citizens of the country alike.”

I am still trying to understand this passage. But what is seems to suggest is that if I try to convert you I will be breaching your freedom of conscience. That would be true if I did it by force or fraud- but how does it breach your freedom of conscience if it is done through persuasion and through dialogue?

Remember, in these laws the punishment was only for the convertor and not for the converted. Even then, the Supreme Court did not discuss the word ‘propagate’ in the context of the Constitutional Assembly debates. Besides, it appears that freedom of speech and expression was not raised as a ground. The Court also did not examine the impact of such laws on voluntary conversions.

As regards the legislative competence argument, the Court held that the Acts were passed to deal with public order which fell within the State list and so the State legislation had competence to pass the law. Meaning thereby that the purpose of the law was to prevent public disorder.  Why should an individual conversion be a matter of public order?  From the judgments there do not seem any statistics placed before the Court concerning widespread or any disturbance of public order due to conversion.

After about 12 years of this Judgment the Orissa Government in 1989 framed Rules under the Act. The Rules went way beyond the Act. The Orissa Act  as mentioned above only deals with prosecution for conversion by force, fraud and allurement. It does not deal with intimation or permission. But Rules, which travel beyond the mandate of the Act brought all this in. This is jurisprudentially unacceptable.

The Rules require that every person intending to convert the person who is changing his religion will file a declaration prior to conversion before the District Magistrate.  The religious priest, by whatever name called,  will intimate 15 days in advance to the District Magistrate the place, time and date of conversion along with the names of the persons to be converted. Under Rule 5(3) which was added in 1999, The Magistrate will intimate the Superintendent of police who in turn will inform the local police station which will conduct an enquiry into any objections and submit the report to the Magistrate. What the Magistrate will do with this report is not mentioned. If a priest does not communicate the information a fine of Rs. 1000 can be imposed. Like under the Madhya Pradesh law the Magistrate is required to maintain a register of conversion and give monthly report to the State Government.    The District Magistrate is also to keep a register of all religious institutions and organisations in his district which propagate religious faith and all individuals involved in such propagation.

These Rules were totally unconstitutional. The Act did not provide for intimation or permission- prior or subsequent. The Rules were challenged in the Orissa High Court by Rev. Satya Ranjan Manjhi in 2003 as being beyond the rule making power. However this was rejected on two counts. The Court held that the rules were only towards implementing the Act and were therefore not ultra vires the Act.  This in my opinion is in completely wrong as explained above. If the Act had provided for intimation or permission, the mechanism for such intimation could have been provided by the Rules. However the Orissa Act does not require any intimation or permission.  Second ground given by the High Court to reject was that  the persons who had filed the Petition were those who wanted to convert others and therefore at their request such Petition could not be entertained. (AIR 2003 ORR 163)

The matter was carried to the Supreme Court (2003 7 SCC 439). The challenge in Supreme Court seemed to be confined to Rule 5 (3) which requires enquiry to be conducted by the police. The Court, in a cryptic order negatived this contention and upheld the validity of the Rule.

The Judgment is also wrong on various grounds. The Rules were patently ultra vires the Act which did not put any obligation on the convertee and did not require any prior or subsequent intimation to the authorities. An individual private decision has now to be monitored by the State. Of course, other provisions of the Rules were not challenged before the Supreme Court and thus the Supreme

Court has not opined on them.

Arunachal Pradesh

Arunachal Pradesh was the next in line which passed the law in 1978. Here, the focus was on the term ‘religious faith’ which is defined to include ‘indigenous faith.’

“Indigenous faith” means such religions, beliefs and practices including rites, rituals, festivals. Observances, performances, abstinence, customs as have been found sanctioned, approved, performed by the indigenous communities of Arunachal Pradesh from the time these communities have been known and includes Buddhism as prevalent among the Monpas, Membas, Sherdukpens, Khambas, Khamptis and Singphos, Vaishnavism as practiced by Noctes, Akas and Nature worships, including worships of Donyi-Polo, as prevalent among other indigenous communities of Arunachal Pradesh.”

Religious faith was defined to include indigenous faith. Conversion from one faith to another by fraud, force or inducement is prohibited and punishment is up to two years with fine up to Rs. 10,000. The convertor is required, after the conversion to send intimation to the authorities and failure to do so would render the person liable for 1 years imprisonment or Rs. 1000 fine. At least the Arunachal Pradesh Act gave more agency to women and those belonging to SC/ ST communities as no higher punishment was provided for converting them. Rules have not been framed under this Act till date.

Chhattisgarh

When Chhattisgarh was carved out of Madhya Pradesh in 2000, it retained the Madhya Pradesh Freedom of Religion Act. In 2006, this law was amended to provide that the convertor  will have to seek permission of local district magistrate 30 days in advance who may accept or reject the request after studying the case. Conversion without permission will render the convertor liable to imprisonment up to 3 years. Once conversion takes place, within one month the District Magistrate has to be communicated about this fact. Violation of this provision would render the person liable for imprisonment of up to 1 year.

The Amendment also provided that return by  a person to the original religion of ancestors will not amount to conversion. This, for the first time legally paved the way for Ghar Wapsi.

The punishment was enhanced from one year to three years in normal case and from two years to four years in case of conversion of women, minors and those belonging to SC/ ST categories.

No offender can be released on bail unless the Public Prosecutor has been heard.

Tamil Nadu

Tamil Nadu passed an anti conversion law in 2002. This followed the pattern of other laws and required subsequent intimation of conversion to the authorities. It appears that this Act was passed when then chief minister of the state, Jayalalitha was seeking support of the BJP. There were major protests against this law. In 2004, once the BJP was out of the picture as far Jaylalitha was concerned, the law was repealed.

Gujarat

Gujarat Freedom of Religion Act was passed in 2003. Conversion by force, fraud and allurement was prohibited. Punishment for offence is up to three years imprisonment and in cases of convert being minor, woman or person from SC/ ST category the punishment is  up to four years.

Section 5 for the first time specifically brought in ‘prior permission’. As mentioned above, this was subsequently followed by Chhattisgarh while amending its law.  The convertor or any person helping with such conversion will seek prior permission of District Magistrate. The convert, on the other hand will intimate to the District Magistrate after the conversion about the fact of such conversion. Failure to comply with either will render the person concerned liable to imprisonment for 1 year fine or fine of Rs. 1000 or both. This is the first time that the person who gets converted is penalised and that too if she does not inform the District Magistrate- this would be irrespective of weather the conversion is with force, fraud or allurement or without it. Prosecution cannot be launched without the prior sanction of District Magistrate or equivalent authority.

In 2006 an Amendment Bill was passed by the Gujarat Assembly to state that conversions within a religion amongst denominations would not be treated as conversion and thus such change will not attract provisions of the law. This included Shias and Sunnis amongst Muslims, Catholics and Protestants amongst Christians. The main opposition was to the treatment of Jains and Buddhists as Hindus. Thus if a Jain became a Hindu or similarly a Hindu became a Buddhist this would not amount to conversion. Due to opposition especially from the Jain community who protested against being shown as part of the Hindu religion, this Amendment had to be withdrawn.

In 2008, the Gujarat Rules were passed. Under the Rules, anyone who intends to perform any ceremony as a priest or organises such ceremony or directly or indirectly takes part in such ceremony has to take prior permission of the District Magistrate for such conversion. The District Magistrate can make such enquiries as required and either grant permission or refuse it within one month of the application. If offence is committed he can authorise a police officer to launch prosecution.   The person who is getting converted or his guardian is required to give intimation of such conversion to the District Magistrate and failure to give such intimation will make him liable for prosecution. Finally, the District Magistrate is required to file quarterly report to the State Government.

This law has been challenged in the Gujarat High Court and the Petition is pending.

Himachal Pradesh

In 2006 Himachal Pradesh passed its own Freedom of Religion Act. This was enacted when the Congress Party was at the helm.

The Act followed most of the other laws in providing that conversion through fraud, force or inducement was criminalised. It further went on to say that such conversion will be deemed to be invalid. This was the first time a law brought in deemed invalidity. Thirty days prior notice is to be given by the convertor to the District Magistrate but not so if a person is reconverting to his original religion. Upon notice being given, the District Magistrate can get the same enquired into by such agency as may be necessary.  Punishment for violation is two years or fine of Rs. 25,000 and if the violation is in respect of woman, minor or person of SC/ ST category the punishment would be 3 years imprisonment with fine of Rs. 50,000/. Prosecution can only be with the sanction of District Magistrate.

In 2007, the Himachal Pradesh Government came out with the Rules. Any person wanting to be converted has to give advance notice to the District Magistrate. Within 15 days the Magistrate can get enquiries done concerning the intended conversion or conversion from any agency and record his findings. The District Magistrate also has similar powers concerning any complaint received about a conversion or proposed conversion. If the District Magistrate finds that conversion is due to force or inducement or without notice the matter will be forwarded to the Police Station for registering a case. After Investigating the case the police office can place the matter before the sanctioning authority who will grant or refuse sanction within 7 days. In addition, the District Magistrate is required to submit a monthly report to the State Government.

Rajasthan

Rajasthan passed a Freedom of Religion Act in 2006. However the Governor refused to give her assent. The Bill was sent to the President for his assent but even that is pending. In the meanwhile, a case concerning an individual reached the Rajasthan High Court which on some basis came to the conclusion that conversion was a major issue and expanded the scope of the Petition and issues directives concerning conversion which are interesting to note.

This extract is taken from Chirag Singhvi v. State of Rajasthan, 2017 SCC OnLine Raj 3180 : (2018) 3 RLW 2270 at page 2290

“46. As per contention of the petitioner, now a days the problem of forcible conversion of religion became serious problem because teenagers (male or female) are forcibly converting the religion only for the purpose of solemnizing marriage, therefore, the State Government felt it necessary to enact Rajasthan Dharma Swatantrya Act, 2006, but it has not been implemented for want of assent since 2006, therefore, we are of the opinion that while protecting the fundamental right of freedom under Article 25 of the Constitution of India, some guidelines are necessary to check forcible conversion of religion because religion is a matter of faith and not of logic. The Constitution allows the followers of every religion, to follow their beliefs and religious traditions. The Constitution extends this guarantee because faith constitutes the religious consciousness of the followers. There is no dispute that every citizen has a fundamental right of freedom of religion under Article 25 of the Constitution of India, but at the same time, it is the duty of every citizen to protect the feelings of other religion and not to act contrary to the provisions of Constitution. Therefore, we deem it appropriate to give some guidelines to check the problem of forcible conversion of religion. Consequently, following guidelines are hereby issued, which reads as under:

(A) An individual, who wishes to change his/her religion will be at liberty to change the same after attaining the age of majority.

(B) One, who intends to change his/her religion should satisfy himself/herself about niceties of conversion of religion.

(C) The authority/person, who is performing ceremony of conversion of religion, should first ascertain whether the person concerned is desirous to change the religion, is having full faith in the newly adopted religion and should also ascertain whether he/she is under any threat of other person or not and if finds that it is forceful conversion, then the authority/person shall give information to the District Collector/SDO/SDM, as the case may be.

(D) The person, who is desirous to change his/her religion, shall give information to the District Collector/SDM/SDO of the concerned city and Sub-Divisional Area before conversion of religion.

(E) The District Collector/SDM/SDO shall put such information upon the Notice Board of its office on the same day.

(F) The person, who has converted his religion from one religion to another religion, shall solemnize the marriage/Nikah after one week of such conversion of religion. For that, the authority/person concerned before whom such marriage/Nikha is being solemnized, shall ensure whether information of conversion has been made or not and thereafter assist in solemnizing the marriage/Nikah

(G) The District Collector upon receiving information of forceful conversion shall take appropriate action in accordance with law, so as to check the forceful conversion.

(H) It is made clear that if any person is desirous for publication of change of religion in the Gazette, he/she shall take recourse of Press and Registration of Books Act, 1867.

(I) It is also directed that if any marriage in the form of any nomenclature of any religion will be performed after conversion in contravention of above guidelines, then such marriage of any nomenclature can be declare voidable upon complaint of aggrieved party.

(J) That aforesaid guidelines shall remain operative until the Act of 2006 or any other act governing the subject matter came into existence in State of Rajasthan to protect the forcible conversion of religion.”

Jharkhand

Jharkhand passed a Freedom of Religion Act in 2017. The Act like other laws proscribes conversion by force, fraud or allurement. Violation is penalised by 3 years imprisonment or fine of Rs. 50,0000. Violation in respect of women, minors and members of SC/ STs has 4 years imprisonment and fine of Rs. 1,00,000/-.

Act requires the convertor or any person who organises such conversion or takes directly or indirectly part in such conversion ceremony is required to take prior permission of the District Magistrate. The person who gets converted has to intimate about such conversion to the District Magistrate. Failure to do either of the above can lead to imprisonment of 1 year or fine of Rs. 5000/-.

The offences under this Act are cognisable and (for the first time specified) as non bailable. Prosecution can only be launched after prior permission of District Magistrate.

In 2017 itself the Rules were framed. They require 15 days advance notice for permission to the District Magistrate who will get enquiry made from such agency as required and record his findings. The person who is getting converted has to intimate to the District Magistrate within 7 days of conversion.

Rules require District Magistrate to maintain registers of religious orgnaisations and institutions in the District and gives power to the District Magistrate to inspect the premises and records of such institutions and also gives him power to get list of all those who get some benefit from such institution/ organisation. If any offence is committed or suspected to be committed, the District Magistrate can ask police to investigate and if required grant sanction for prosecution.

Uttarakhand

Uttarakhand  came out with its version of anti conversion law in 2018. This law went much beyond the other laws in some respects. To begin with of course it penalised conversion based on force, fraud, allurement, undue influence, etc. Conversion by marriage was for the first time prohibited. Thus even if a person converted of his or her own accord at the time of  marriage or for marriage such conversion is prohibited. It is important to look at the section.

“3. Prohibition of conversion from one religion to another religion by misrepresentation, force, fraud, undue influence, coercion, allurement or marriage. – No person shall convert or attempt to convert, either directly or otherwise, any other person from one religion to another by use of misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage nor shall any person abet or conspire such conversion:

Provided that, if any person comes back to his ancestral religion, shall not be deemed conversion under this Act.”

Similarly, the proviso quoted above, allows what is known as Ghar Wapsi.

Allurement was defined much more widely than in other laws. “Allurement” means and includes offer of any temptation in the form of any gift or gratification or material benefit, either in cash or kind or employment, free education in reputed school run by any religious body, easy money, better lifestyle, divine pleasure or otherwise;”

“Undue influence” means the unconscientious use by one person of his power or influence over another in order to persuade the other to act in accordance with the will of the person exercising such influence;”

A complaint can be made by any aggrieved person (i.e. the person who is subjected to conversion), parents or his/ her brother or sister to the Court.

Punishment is not only enhanced but for the first time minimum punishment is provided. Thus an ordinary offence would involve punishment of up to five years with minimum punishment of one year imprisonment and fine. If the offence is in respect of a minor, woman or person belonging to SC/ ST community the punishment is up to seven years with minimum punishment of 2 years imprisonment. A marriage performed/entered into for the sole purpose of conversion would be declared null and void by the Court.

The person who is getting converted has to give one months advance notice to the District Magistrate. Failure to do so will render the converted person liable to imprisonment for up to one year with minimum sentence of one year.  The person converting has to also give similar notice. Failure will render him liable to two years imprisonment with minimum of six months. The Magistrate will then get examined through police the real intention of the conversion. Prosecution can only be with prior sanction of district Magistrate. If any institution or organisation commits the offence its office bearers would be penalised and the registration of such organisation or institution under any law can be cancelled and such organisation cannot accept any donation or contribution from India or abroad. Every offence under the Act is non bailable.

“When an offence is committed under this Act, each of the following shall be deemed to have taken part in committing the offence and to be guilty of the offence and shall be charged as if he has actually committed it, that is to say,-

(i) every person who actually does the act which constitutes the offence;

(ii) every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence;

(iii) every person who aids or abets another person in committing the offence;

(iv) any person who counsels or procures any other person to commit the offence”.

Similarly, for the first time burden of proof is shifted onto the accused. “The burden of proof as to whether a religious conversion was not effected through misrepresentation force, undue influence, coercion, allurement or by any fraudulent means or by marriage lies on the person so converted and where such conversion has been facilitated by any person, on such other person.”

Rules have been framed in 2018. There is a further stringency in burden of proof.

“Subject to the Section 13 of the Act, if any person, priest, institution or organisation convert/make conversion from misrepresentation, force, undue influence, coercion, allurement or any other fraudulent method or by marriage, the burden of proof shall lie on such person who have made the aforesaid conversion and when any person, priest, institution or organisation has ensured such conversion then the burden of proof shall lie on such person, priest, institution or organisation. Explanation. – For the purpose of Section 3 and Section 6 of the Act wherever the word ‘marriage’ occurs in the Act, marriage means marriage done as a consequence of conversion from one religion to another religion, which is done with the intention of misrepresentation, force, coercion, allurement or any other fraudulent means.”

Of course, the marriage provision seems to have been diluted by penalising only those conversions which are with the intention of misrepresentation, force, fraud, etc.

UP Ordinance 2020

The Uttar Pradesh Ordinance which has generated much controversy broadly follows the Uttarakhand Act except for a few changes. The definition of allurement under the UP Ordinance also includes employment. Mass conversion is included for the first time and is defined to mean conversion of two or more persons.

Under this Act it is an offence to convert anyone ‘by marriage’ irrespective of weather the conversion is voluntary or not. Besides,  even trying to convince someone to convert is a crime.

Under the Uttarakhand law converting back to religion of ancestors will not amount to conversion. Under the UP Ordinance there is a slight modification and the word ancestor is not used but it will not amount to conversion if a person converts back to his/ her immediate prior religion. Of course how immediate is to be defined is yet to be seen in practice and may be specified when rules are framed.

First Information Report can be filed by any aggrieved person or any person related by blood, marriage or adoption. Punishments are of three types. An ordinary offence would render the person liable to imprisonment of upto 5 years with minimum of 1 year sentence. If the conversion is of a woman, minor or person belonging to SC/ ST community the punishment is up to 10 years with minimum punishment of 2 years and in case of mass conversion the punishment is up to 10 years with minimum of two years sentence.

Any marriage done for the sole purpose of conversion can be declared void by the Court. Thus apart from illegality and penal consequence involved in ‘any’ conversion ‘by marriage’ (which illegality does not depend on whether the marriage is for the sole purpose of conversion) such marriage can be treated as void if it is dome for the sole purpose of conversion.  It is impossible to understand what is meant by conversion by marriage- is it before, is it after, is it during? This leaves of course a lot of scope for the police to interfere.

All offences are non bailable and to be tried by Sessions Court.

Any person wanting to convert to another religion will have to give 60 days advance notice to the District Magistrate. Failure to do this will render the conversion void and make the person liable for imprisonment up to three years with minimum sentence of 6 months.  Any person who carries out the conversion has to give 30 days advance notice for conversion. Any violation will render conversion void and the violator can be punished for 5 years imprisonment with minimum of 1 years imprisonment.  The District Magistrate will then have an enquiry conducted by the police to find out the true purpose of conversion.

Section 9 requires post conversion communication. The coverted person is required to communicate to the District Magistrate within 60 days of conversion. This declaration is to contain all details including name, address, etc. This declaration will be exhibited on the notice board of the District Magistrate and the converted person shall appear before the District Magistrate within 21 days to establish identity and confirm the contents of declaration. The contravention of this provision will render the conversion illegal and void.

Similar to the Uttarakhand law, if any organisation or institution violates any provision of the Ordinance the persons in charge of such organisation will face penalties similar to those provided for other individuals and the registration of such organisation under any law can be cancelled. State Government is prohibited from giving any aid or grant to such institution.

Burden of proof under this law is shifted onto the person who has caused such conversion or facilitated such conversion.

Summary of Historical Evolution

While the initial laws required, at the highest, subsequent intimation, over the decades and more so in the last 15 years the changes have been drastic.

• During the initial years, what was required was only subsequent intimation of conversion to the authorities, now not only is the intimation to authorities   prior but there is also a requirement of prior permission and subsequent declaration with provision of public display of details and police enquiry. This by itself prevents people from exercising their freedom of conscience because of the fear of a purely private matter becoming a  public spectacle and threats and violence by public vigilante groups coupled with apprehension of arrest, etc.
• The earlier laws did not penalise the person who gets converted and only the convertor was penalised- now even the person getting converted is also penalised. This is a direct attack on the recognised fundamental right of freedom of conscience;
• The earlier laws did not exempt those who reverted back to the earlier religion or religion of ancestors but now that is made an exception allowing ghar wapsi;
• While earlier there was no change in burden of proof, now the laws shift the burden on the convertor and convertee to prove that the conversion was without any fraud, coercion, undue influence, allurement, etc.
• While earlier it was never mentioned that the offences were non bailable, now it is routinely provided that the offences are non bailable;
• Earlier the definition of allurement was quite narrow- though still suspect, now any benefit given to the convertor- material or spiritual is treated as allurement
• Earlier laws the punishment was relatively mild while now not only is the punishment  higher but also there is a provision for minimum imprisonment;
• Earlier even violation of the law did not lead to any impact on the conversion, now even not giving intimation renders the conversion invalid.
• Earlier, the laws did not directly deal with marriage but now they not only deal directly with marriage and conversion but also prohibit all conversions on marriage.

 

This does not mean that the earlier laws were Constitutional. All the laws, weather the milder version or the more stringent ones have Hindu majoritarian fundamentalism as its raison d’etat. The purpose was never to stop fraudulent or coercive conversions. The purpose has always been to stop all  conversions from Hindu religion while forcing Dalits to remain within the Hindu fold with all the atrocities and to ensure that Adivasis most of whom do not identify as Hindus are brought within the Hindu hegemonic fold. The object of all these laws has been to prevent interfaith marriages and to treat women as gullible chattel having no agency whatsoever. This does not mean of course that the fundamentalist Christians or Muslims treat them any better. Supreme Courts judgment in Stainislus is wrong, but even if it was upheld as good law the present enactments go much beyond it and are definitely unconstitutional.

Constitutionality

 All the so called Freedom of Religion laws and more so the recent laws are unconstitutional on various grounds which are briefly narrated below. It is also important to understand that in 1977 when the Supreme Court decided the Stainislaus matter certain legal challenges and Constitutional tools  were not available  which since then have been developed by the Supreme Court itself giving additional strength to the arguments:

1. The first issue which arises is weather the Governor of UP could have enacted this law through an ordinance. The power to issue Ordinances is governed by Articles 123 (for the President of India) and 213 for the Governors. When the Assembly is not is session, the Governor has the power to issue Ordinance if he is satisfied that circumstances exist which render it necessary for him to take immediate action. So the first issue would be weather circumstances existed which rendered it necessary for the Governor to issue the Ordinance without awaiting Assembly Session. Factually, no such situation existed. There is no material to show that ‘love jihad’ is widespread or has been increasing at a rapid rate for such an Ordinance. A Special Investigation Team of Kanpur had carried out a study in September, 2020 across all police Stations in the city which showed that there were 14 pending cases of interfaith marriages which had reached the police and out of these in 8 cases there was no case made out at all. In the balance 6 cases the investigation was still pending. This was the only concrete study. So on what basis the Governor came to the conclusion of any emergent need to act is anyone’s guess. However, the Courts have been reluctant to second guess the Governors when they issue Ordinances. While the Courts have said that such power of the Governor has to be sparingly used and can be judicially reviewed, in actual fact the Court’s have not struck down Ordinances only on the ground that situation did not exist for the Governor to act. In any event the Ordinance would lapse if it is not placed before the legislature withing 6 weeks of the legislature reassembling.  Besides, in this case the argument may be academic as the Courts are not likely to decide it with great speed and since NDA  has the majority in the state legislature it will be passed as an Act anyway.

 

2. In 1977, the challenge under Article 14- the equality and equal protection clause was available only on the test of reasonable classification (intelligible differentia) and  nexus between classification and object of the law. For a legislation to be valid against a challenge under Article 14, there had to be a classification between those included and those excluded by the legislation, such classification had to be reasonable and such classification needed to have nexus with the object sought to be achieved. Thus the only way to challenge a legislation under Article 14 was the hostile discrimination test.  However, in recent times the Supreme Court has also applied the ‘manifest arbitrariness’ test to strike down laws such as was done in Shreya Singhal[5] and Triple talaq cases[6]. This means that even if the classification is valid and has a nexus with the object sought to be achieved , a legislation can be struck down if it is manifestly arbitrary.

“101. … The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.”[7]

The present Ordinance and the earlier laws are liable to be struck down on the ground that many of their provisions are manifestly arbitrary being excessive, disproportionate, irrational and without adequate determining principle. For instance provisions relating to punishments especially the minimum punishment, shifting of burden of proof, the definitions which excessively impinge on the rights, the requirement of public disclosure and police enquiry.

3. Now there is no controversy about right to privacy being a fundamental right coupled with the Supreme Court’s observation in Puttaswamy’s case[8] that this right applies not only to spatial privacy but also relational privacy and the right to make personal choices.

“323. Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognises the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognises the plurality and diversity of our culture. While the legitimate expectation of privacy may vary from the intimate zone to the private zone and from the private to the public arenas, it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy attaches to the person since it is an essential facet of the dignity of the human being.”

In Common Cause v. Union of India[9], a Constitutional Bench of the Supreme Court held:

“346. … Our autonomy as persons is founded on the ability to decide: on what to wear and how to dress, on what to eat and on the food that we share, on when to speak and what we speak, on the right to believe or not to believe, on whom to love and whom to partner, and to freely decide on innumerable matters of consequence and detail to our daily lives.”

In Navtej Singh Johar v. Union of India[10], the Supreme Court held:

“474. The right to privacy enables an individual to exercise his or her autonomy, away from the glare of societal expectations. The realisation of the human personality is dependent on the autonomy of an individual. In a liberal democracy, recognition of the individual as an autonomous person is an acknowledgment of the State’s respect for the capacity of the individual to make independent choices.

 

“613. The choice of a partner, the desire for personal intimacy and the yearning to find love and fulfilment in human relationships have a universal appeal, straddling age and time. In protecting consensual intimacies, the Constitution adopts a simple principle: the State has no business to intrude into these personal matters. Nor can societal notions of heteronormativity regulate constitutional liberties based on sexual orientation.”

The requirement of intimation and permission, declaration and police enquiry would directly impinge on a persons right to privacy. Even if some of these requirements are on the person converting and not on the person who is getting converted, still the impact would still be on the right to privacy of the person who is getting converted.

4. While Gopalan’s[11] dictum that each fundamental right is a silo had been dented considerably by the time Stanislaus judgment was given, its final funeral rites happened only in 1978 when Maneka Gandhi[12] judgment was delivered which provided the test of interplay of fundamental rights and also provided substantive due process as a ground of challenge. For example, right to convert which earlier would be tested only on the ground of violation of freedom of religion can now also be tested on the basis weather it violates the fundamental right to speech and expression and also the fundamental right to life and personal liberty. Additionally, since early 1980s the meaning given to life and personal liberty has been much expanded including for instance the right to live with dignity. The anti conversion laws violate not only freedom of speech and expression but also attack dignity of persons who want to get converted to another religion.
5. At the time of Stainsilaus and for many decades before and after that, a legislation which was challenged as being violative of non discrimination   clause in Article 15, which prohibits discrimination ‘only on grounds of sex, caste, religion’ was tested solely on formalist reading of that Article. Besides, on most occasions such legislations were justified as protective discrimination towards women. As Gautam Bhaita in his book The Transformative Constitution explains this is now changing especially from the time of the Supreme Court’s Judgment in Anuj Garg[13].  A few quotes from the Judgment would illustrate much better than any explanation I give.

“46. It is to be borne in mind that legislations with pronounced “protective discrimination” aims, such as this one, potentially serve as double-edged swords. Strict scrutiny test should be employed while assessing the implications of this variety of legislations. Legislation should not be only assessed on its proposed aims but rather on the implications and the effects. The impugned legislation suffers from incurable fixations of stereotype morality and conception of sexual role. The perspective thus arrived at is outmoded in content and stifling in means.

47. No law in its ultimate effect should end up perpetuating the oppression of women. Personal freedom is a fundamental tenet which cannot be compromised in the name of expediency until and unless there is a compelling State purpose  Heightened level of scrutiny is the normative threshold for judicial review in such cases.”

This judgment is important not only on the issue of women’s rights but also other fundamental rights. It speaks of testing legislation not just on the basis of proposed aims ( declared or undeclared) but also on its effect. The aim may be to prevent forcible and fraudulent conversions but if the effect is to

6. Earlier, the misuse or potential misuse of law was never a ground for striking down a law. Since the judgment in Navtej Singh Johar’s case[14] there is some progress  towards looking at the misuse and impact of the law. Besides, the Supreme Court has also observed that just because a legislation is facially neutral does not mean it is Constitutional. One has to look at the impact. Let us look at some observations from Navtej Singh Johar’s case which equally apply in the present case, both in terms of misuse and in terms of likely impact.

“611. The impact of Section 377 has travelled far beyond criminalising certain acts. The presence of the provision on the statute book has reinforced stereotypes about sexual orientation. It has lent the authority of the State to the suppression of identities. The fear of persecution has led to the closeting of same sex relationships. A penal provision has reinforced societal disdain.

612. Sexual and gender-based minorities cannot live in fear, if the Constitution has to have meaning for them on even terms. In its quest for equality and the equal protection of the law, the Constitution guarantees to them an equal citizenship. In decriminalising such conduct, the values of the Constitution assure to the LGBT community the ability to lead a life of freedom from fear and to find fulfilment in intimate choices.

 

643.6. Even though Section 377 is facially neutral, it has been misused by subjecting members of the LGBT community to hostile discrimination, making them vulnerable and living in fear of the ever-present threat of prosecution on account of their sexual orientation. The criminalisation of “carnal intercourse against the order of nature” has the effect of criminalising the entire class of LGBT persons since any kind of sexual intercourse in the case of such persons would be considered to be against the “order of nature”, as per the existing interpretation.”

There are enough examples to show that the anti conversion laws have been used to target minority communities and have never been used to stop Ghar wapsi. Besides, now with the provisions permitting reconversion to original religion or religion of ancestors which can only mean Hinduism the targets are clear and the possibility of misuse is immense. In any event the distinction between those who want to convert to the ‘original’ religion and those who want to convert to a ‘new’ religion is patently arbitrary.

7. The Supreme Court itself has held that an individual’s right to convert (i.e. the convertees right) is part of the fundamental right to freedom of religion and therefore any restriction on the right of the convertee to opt for another religion would be unconstitutional. Thus conditions such as prior permission or going into the intent or purpose of the convertee or penalising the convertee for any reason whatsoever is bad and liable to be struck down as being in violation of the fundamental right to freedom of religion under Article 25 of the Constitution.
8. Such a law in its implementation can have a chilling effect on fundamental rights. To quote what Justice Chandrachud in his concurring judgment in Hadiya’s case said[15]

“89. Interference by the State in such matters has a seriously chilling effect on the exercise of freedoms. Others are dissuaded to exercise their liberties for fear of the reprisals which may result upon the free exercise of choice. The chilling effect on others has a pernicious tendency to prevent them from asserting their liberty. Public spectacles involving a harsh exercise of State power prevent the exercise of freedom, by others in the same milieu. Nothing can be as destructive of freedom and liberty. Fear silences freedom.”

9. Despite what Stainlaus Judgment says, even the right to convert someone through propagation, persuasion and through convincing is part of the fundamental right to freedom of religion. Obviously using force or fraudulent means cannot be permissible. But this can only mean physical force, threats or coercion. Even direct financial deals may not be permissible. But the manner in which force, fraud, allurement, inducement, etc. are defined they go much beyond this. For instance, even giving someone the Bible to read can amount to allurement. Conversion by its very nature involves travel from one faith to another and a person would do that only if he is satisfied about spiritual betterment in present life or better life after death.  The provisions  are overbroad and include both permissible and impermissible methods of conversion.  In Navtej Singh Johar[16], the Supreme Court reiterating what was said in Shreya Singhal observed:

 

“259. In Shreya Singhal v. Union of India [Shreya Singhal v. Union of India, (2015) 5 SCC 1 : (2015) 2 SCC (Cri) 449] this Court, while striking down Section 66-A of the Information Technology Act, 2000, had observed that when a provision is vague and overbroad in the sense that it criminalises protected speech and speech of innocent nature, resultantly, it has a chilling effect and is liable to be struck down. The Court opined: (SCC pp. 169-70, para 94)

“94. … We, therefore, hold that the section is unconstitutional also on the ground that it takes within its sweep protected speech and speech that is innocent in nature and is liable therefore to be used in such a way as to have a chilling effect on free speech and would, therefore, have to be struck down on the ground of overbreadth.”

 Treatment of Women, Dalits and Adivasis

All the anti conversion laws have treated women as ‘the weaker sex’, without any agency and susceptible to charms especially of the ‘Jehadi Muslim’ men. That is the reason why punishment for converting women has always been harsher than the punishment for converting men. The recent laws go even further  directly targeting marriage. Three kinds of cases concerning marriage and conversion have been agitated in Courts. Let us look at them.

Hindu men who already have wives marry Muslim women by converting and claiming that since they have converted they are entitled to marry a second time. This has been deprecated by the Supreme Court on at least two occasions in the cases of Sarla Mudgal[17]  and Lily Thomas[18] where the Supreme Court came to the conclusion that a Hindu man converting and getting married a second time will still  amount to adultery and the first wife does not lose any rights because of this.

The second type of cases are those  interfaith marriages where a party to the marriage or both parties approach the Court for getting protection from families or section of the people who are threatening them. By and large the Courts have supported such couples especially when they are adults. This was the situation with the recent cases decided by Allahabad High Court. Earlier in the case of Noor Jehan decided on December 16, 2014 and Priyanshi decided on September, 23, 2020, Single Judge Benches of Allahabad High Court had rejected the Petitions of the married parties seeking protection. These were the cases of conversion and marriage. The Court even went so far as to test the knowledge of the women about Islam and came to the conclusion that they did not know its basic tenets and therefore the conversion was invalid and thus the marriage was invalid. However in the case of Salamat Ansari  the Division Bench of the Allahabad High Court on November 11, 2020 overruled the judgments by holding that even if the conversion and marriage were under a cloud, an adult individual had a right to choose with whom she wanted to live, with or without marriage. Thus such persons cannot be prosecuted. Soon after this, on November 27, 2020 the Anti Conversion Ordinance was brought in. Because of this Ordinance, while the staying together of two adults of different faiths, with or without marriage and with or without conversion cannot be penalised, the conversion itself can be penalised and the bigger apprehension is even if there is no conversion, if there is a Nikah or church wedding it can be assumed that there is a conversion and punishment can still be inflicted.

The third type of cases are an off shoot of the above when a parent or blood relative approaches the Court alleging that the daughter (never the son) is under unlawful detention or is being brainwashed by husband or boyfriend into converting. The culmination of these kinds of cases was the Hadiya Case[19] where Hadiya’s father filed a case in Kerala High Court which annulled the marriage and ultimately the Supreme Court had to step in and set aside the annulment and set Hadiya free. Some of the observations in this Judgment are quite relevant even from the perspective of the present debate.

“81. The schism between Hadiya and her father may be unfortunate. But it was no part of the jurisdiction of the High Court to decide what it considered to be a “just” way of life or “correct” course of living for Hadiya. She has absolute autonomy over her person. Hadiya appeared before the High Court and stated that she was not under illegal confinement. ….The High Court did not take kindly to the conduct of Hadiya, noting that when it had adjourned the proceedings to issue directions to enable her to pursue her studies, it was at that stage that she appeared with Shafin Jahan only to inform the Court of their marriage. How Hadiya chooses to lead her life is entirely a matter of her choice. The High Court’s view of her lack of candour with the court has no bearing on the legality of her marriage or her right to decide for herself, whom she desires to live with or marry.”

88. The High Court, in the present case, has treaded on an area which must be out of bounds for a constitutional court. The views of the High Court have encroached into a private space reserved for women and men in which neither law nor the Judges can intrude. The High Court was of the view that at twenty-four, Hadiya “is weak and vulnerable, capable of being exploited in many ways”. The High Court has lost sight of the fact that she is a major, capable of taking her own decisions and is entitled to the right recognised by the Constitution to lead her life exactly as she pleases. The concern of this Court in intervening in this matter is as much about the miscarriage of justice that has resulted in the High Court as much as about the paternalism which underlies the approach to constitutional interpretation reflected in the judgment in appeal. The superior courts, when they exercise their jurisdiction parens patriae do so in the case of persons who are incapable of asserting a free will such as minors or persons of unsound mind. The exercise of that jurisdiction should not transgress into the area of determining the suitability of partners to a marital tie. That decision rests exclusively with the individuals themselves. Neither the State nor society can intrude into that domain. The strength of our Constitution lies in its acceptance of the plurality and diversity of our culture. Intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the State. Courts as upholders of constitutional freedoms must safeguard these freedoms. The cohesion and stability of our society depend on our syncretic culture. The Constitution protects it. Courts are duty-bound not to swerve from the path of upholding our pluralism and diversity as a nation.”

 

Similarly, in the case of Shakti Vahini[1]  (Khap Panchayat), the Supreme Court observed:

“43. …when two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognised under Articles 19 and 21 of the Constitution. Such a right has the sanction of the constitutional law and once that is recognised, the said right needs to be protected and it cannot succumb to the conception of class honour or group thinking which is conceived of on some notion that remotely does not have any legitimacy.”Similarly, in the case of Shakti Vahini[20]  (Khap Panchayat), the Supreme Court observed:

 

If one goes by these dicta, the laws need to be struck down. Same is the situation for Dalits and Adivasis who are supposedly vulnerable to the tricks of the convertors and therefore require special protection. What is missed out in all this is that Dalits convert in order to get out of the atrocious caste system, in order to gain some dignity as human beings and in order to live as equals. Instead of dealing with these problems, what the anti conversion laws do is to even close the doors of dignity and equality for Dalits. As regards Adivasis there is a wrong presumption that they are Hindus. There are large number of studies done which go to show that in respect of many of the tribes, the customs the practices, the rites, the beliefs have nothing to do with Hinduism. However there is a constant push to appropriate them as Hindus for extension of homogenisation process. Obviously the object of these laws is not to prevent this.

 Conclusion

The UP Ordinance and all connected laws are unconstitutional. They should be struck down by the Constitutional Courts. The only purpose for bringing them in is to advance the cause of Hindu right wing majoritarianism and a step towards ‘Hindu Rashtra.’ Apart from other violations they are a threat to the secular fabric of the country and are against women, persons belonging to the SC/ ST categories and minorities in general. This will be one of the biggest test for our judiciary and one has to wait and watch whether they pass this test or as has been happening in some of the recent cases they abdicate their responsibility.

 

[1] Extracted from Shafin Jahan  2018 16 SCC 368

[2] Anti conversion laws: Challenges to secularism and fundamental rights- SAHRDC published in Economic and Political Weekly January, 12 2008..

[3] Navtej johar

[4] Rev. Stanislaus

[5] 2015 5 SCC 1

[6] Shayara Bano 2017 9 SCC 1

[7] Shayara Bano 2017 9 SCC 1

[8] 2017 10 SCC 1

[9] 2018 5 SCC 1

[10] 2018 10 SCC 1

[11] 1950 SCR 88

[12] 1978 1 SCC 248

[13] 2008 3 SCC 1

[14] 2018 10 SCC 1

[15] 2018 16 SCC 368

[16] 2018 10 SCC 1

[17] 1995 3 SCC 635

[18] 2000 6 SCC 224

[19] Shafin Jahan 2018 16 SCC 368

[20] 2018 7 SCC 192