From UPSC perspective, the following things are important :
Prelims level : Article 213, Article 123
Mains level : Paper 2- Issues with U.P. government's ordinance on religious conversion
The article examines the provision of U.P. governments religious conversion ordinance and issues with these provision.
Power to promulgate an ordinance
- As per Article 213(1) of the Constitution of India, there are three pre-conditions to be satisfied before the Governor promulgates an ordinance, these are:
- 1) The State Legislature should not be in session.
- 2) Circumstances should exist for promulgating an ordinance and importantly.
- 3) Those circumstances must warrant immediate action.
Scrutiny of the circumstances
- There is no established practice requiring the Governor (or the President under Article 123) to state the circumstances for promulgating the Ordinance.
- The reason for immediate action is, as yet, not justiciable.
- But the Supreme Court of India has held that the existence of circumstances leading to the satisfaction of the Governor can be inquired into.
- A healthy convention should develop and the preamble to any ordinance should state the immediacy for promulgating it when the Legislature is not in session.
- This would greatly enhance transparency in legislation.
- This would also help legislators to understand why they are by-passed and why a procedures in the Legislature could not be awaited.
Issues with the U.P. ordinance
- The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance records the satisfaction of the Governor of the existence of circumstances and the necessity for “him/her to take immediate action.
- If one fraudulent or coercive inter-faith marriage is taking place, the police can certainly prevent it.
- An ordinance is not required for it.
- Section 3 prohibits conversion or attempt to convert any person from one religion to another by coercion or fraud etc. or by marriage.
- But, nobody gets converted by marriage.
- The offense of attempting to convert poses a bigger rights issue.
- Under Section 7, on receiving the information a police officer is authorized to arrest a person without orders from Magistrate or warrant.
- The nature of information includes an allegation of allurement which includes an offer of any temptation in the form of a gift or gratification.
- Under Section 8, if someone genuinely desires to convert but not get married, that person would have to inform the District Magistrate (DM) two months in advance of the plan through a declaration.
- Assuming conversion is not objected to, even thereafter the DM must be informed by the converted through a declaration under Section 9.
- Section 12 provides that the burden to prove the conversion was not on account of coercion, fraud, etc., or by marriage will be on the person who has caused the conversion.
- But, how the person causing the conversion expected to know the mind of the converted?
The ordinance vilifies all inter-faith marriages and places unreasonable obstacles on consenting adults in exercising their personal choice of a partner, mocks the right to privacy and violates the right to life, liberty, and dignity. In short, it is unconstitutional.