Implications of UP’s ‘love jihad’ ordinance for freedom of conscience

Note4Students

From UPSC perspective, the following things are important :

Prelims level : Not much

Mains level : Paper 2- Freedom of conscience and conversion to other religion

The U.P. government’s ordinance seeking the prevention of illegal conversion has several provisions that go against the Constitution and restricts the freedom of conscience. 

Objective of the ordinance

  • The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 seeks to prevent “love jihad” in the state
  • 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.
  • There can be no objection to ordinance’s premise that converting somebody by fraud or misrepresentation is wrong.
  • In fact, though the members of the Constituent Assembly included the right to “propagate” one’s religion they considered it a “rather obvious doctrine” that this would not include forcible conversions.
  • However, the UP ordinance goes beyond this principle and does something quite strange.

Unconstitutional provisions and issues with the ordinance

1) Lack of clarity

  • 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.
  • The use of the words “or otherwise” in the definition of allurement is puzzling.
  • 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.

2) Reconversion to a person’s previous religion is not illegal

  • 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.

3) Unfairly treating all women in the same way

  • 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, if somebody converts her against her will, the punishment can go up to 10 years in prison.
  • The ordinance unfairly paints all women with the same brush — assuming that all women are gullible, vulnerable and especially susceptible to illegal conversion.

4) Buden of proof

  • 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.

Time to revisit the past judgement

  • In Rev Stainislaus v State of Madhya Pradesh (1977), 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.

Conclusion

The ordinance puts an incredible chilling effect on the freedom of conscience and state must reconsider it.

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