Critical Overview of Unlawful Religious Conversion Ordinance, 2020: Proportionality Between Religious Conversion and Privacy

Authors:- Himanshu Ranjan, Senior Associate, All India Legal Forum & Anwesh Sarangi, General Administrator, All India Legal Forum

Introduction

In a layman’s language, the meaning of the word ‘conversion’ is the act of changing from one form to another. ‘Unlawful Conversion’ refers to a conversion that is done without following the due course of law. The term ‘Unlawful Religious Conversion ‘means conversion of religion solely for the sake of obtaining certain benefits. In the present scenario, the unlawful conversion is for the sake of marriage.

By raising the number of procedures and the amount of time needed to complete them, the law strengthens the process for religious conversions while also increasing its complexity. This not only guarantees that the victim has time to seek assistance but also allows them to reconsider their decision to convert to a different religion.

The “Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance” was promulgated on 27th November 2020. It criminalizes the conversion of religion for the sake of marriage. This ordinance has gathered support from other states but at the same time, it has triggered several conflicts in the realm of Constitutional Law. The focus of this article is on the legitimate aim of the State to implement this legislation and an individual’s fundamental right to privacy and liberty to marry any individual of their choice as enshrined under Article 21 of the Constitution of India. The blatant violation of the right to freely profess, practice and propagate any religion by this ordinance without any evidence of an unlawful conversion in the state is also a concern of this article.

The proportionality between Religious Conversion and Privacy

The first argument against the ordinance proposal seems to imply that the freedom to practise one’s religion openly includes the right to convert, which is violated by limiting simple access to that right. The Uttar Pradesh government’s bill is allegedly unconstitutional, and it appears to violate the basic right to practise and spread religion as protected by article 25 of the constitution. These are other claims. Furthermore, it is claimed that the ordinance targets interfaith unions and targets Muslims in particular.

The decree also undermines the institution of marriage by requiring the states that the parties shall refrain from undergoing conversion by means of marriage. However, in this segment, we will limit our discussion to the issue of the right to privacy. Under Section 8 of the ordinance, an individual is required to submit a declaration to the District Magistrate or the Additional District Magistrate, sixty days prior to the announcement that he/she wishes to convert his/her religion by freedom of his/her choice. This is a serious constitutional issue. 

The right to privacy and the freedom of conscience is reflected in Articles 21 and 25 of the Constitution, respectively. With the Allahabad High Court quashing the mandatory publication of notice inviting objections under the Special Marriage Act, the legal situation is tending in the direction of the protection of privacy in contrast to the society’s interest in a private act. However, by mandating a declaration, the state is potentially deploying [1]unreasonable procedures to impinge on inter-faith marriages. Currently, inter-faith marriages have been subject to severe constraints and surveillance, as well as, in the case of a letter of declaration, the police will prevent the solemnization of such marriages.

     The ultimate stab to the right to privacy is Section 8 clause (3) which authorizes the District Magistrate to conduct an investigation through the police department to find out the ‘true intent and purpose’ behind the conversion. As held by the Supreme Court in Shafin Jahan v. Asokan K. M., social values and moral values have their place but they are not at the top of the constitutionally guaranteed freedom. The freedom to choose a religion is essential to one’s autonomy and such guaranteed freedom of choice that reinforces the basic principles of the Constitution guarantees the core norms of the Constitution. In our constitutional democracy governed by the rule of law, the police are not allowed to invade the privacy of the people, and, in particular, when trying to find a reason for the exercise of the Constitutionally protected individual autonomy in one’s conscience, and religion. By legitimizing their power to infringe upon one’s privacy to adopt the religion of his/her spouse upon one’s volition (protected freedom under Article 21 vis-à-vis Article 25) under the pretext of discerning the cause behind the conversion, the Ordinance paves way for an arbitrary encroachment on the individual’s fundamental right to privacy. Thus, clause (3) is an absolute derogation of the fundamental rights of the individuals.

Therefore, based on the above test, we will argue that, first of all, the decree is unconstitutional, because it would not only be contrary to the fundamental right to privacy, but also to be free from infringement of the fundamental right of the people to the practice, and the practice of the religion of their choice, as defined in article 25. Second of all, there is no formal proof of the legitimacy of the state, and to limit the conversion is by means of a marriage, by calling for it to be illegal unless the individual is free to be told that this type of behaviour does not arise of their own free will set a legitimate State purpose, that is to suppress the freedom of the individual to accept the religion of their choice, and to choose a partner if the decision is taken in this way, it is, of course, completely arbitrary, and, therefore, unconstitutional.

The proportionality between Religious Conversion and Right to Convert by Marriage

Article 3 of this Regulation prohibits any person, or attempt to convert, either in person or otherwise, that the person of one religion to another by virtue of marriage to the other principles. This section provides you muttered, and shall, in the administration of the skirt and the ability to act like a couple to enter into a consensual marriage, and after the voluntary conversion to the religion. This is the main reason that it provides for the administration of sufficient potential to interfere with the fundamental rights and freedoms of the individual, a partner if it is not registered in accordance with the provisions of the Resolution. It follows from this, that the marriage was broken off in Uttar Pradesh within a week of the decision being announced. The interfaith couple, it is free of charge, to be their law, and that to be supported by their parents. However, since the Decree is also required to make a declaration, and the subsequent investigation and the wedding should be postponed until the Special Marriage Act, is to be implemented. 

In addition, Article 4 of the act empowers each and every injured person, their family or any other person related by blood, that is, to apply for compensation if they are in contravention of the said Section 3. It takes the view that this chapter does not only exceed the requirements of public morality, the top constitutional morality conflicts with the Supreme Court’s dictation, in the case of Navtej Singh Johar v. The constitution. India’s Relationships, as well as the Supreme Court’s decision in the first comments on Shakti Vahini v. India. India’s relations. In Shakti Vahini, the reality is, the Supreme court ruled that when two or more adults of each other, choose tenants of life, it is a manifestation of their choice, which acknowledges that the provisions of articles 19 and 21 of the Constitution. He went on to explain that, with the consent of the family, as a community, clan, is not required when two adults are going to agree to marry her. However, the Decree provides for an exception to this fundamental freedom, which is not in line with the implementation of the law. 

As pointed out in the Modern Dental College in the v State of Madhya Pradesh, India, and repeated, in Anuradha Bhasin v, and For the Constitutional right of the limitations the constitution, it is allowed, that is, the proportional relationship between its value and the achievement of the desired goal, and in the public interest to prevent the occurrence of constitutional law limits must be strictly adhered to. As a legitimate State, the task is not to allow the processing of the wedding, as it is the very quintessence of the principle of the unit is determined in the provisions of articles 19 and 21 of the Constitution. Although, this teaching is not consistently applied by Indian courts, both in terms of the determination of the severity of the action that is in breach of a law; it is in relation to the protection of the right in question. The judge, in this case, has taken an approach with great care, and the value of the evidence, including that of the constituent elements of the above tests, is for a legitimate purpose, or in this case, it would not be in compliance with all the necessary evidence that is required is to limit the fundamental right to privacy, the right to personal liberty and the right to marry the person of your choice. 

Almost forty years ago, when the Constitutional Panel of the Court of appeals affirmed the Freedom of religion Act in Madhya Pradesh, and Orissa, a wide interpretation of “public interest” in search of legislative authority, and the acts in which it is incorporated do not prohibit “conversion by means of a marriage”, and, therefore, the resolution of the 5-judge panel was not only not solve the threat of violation of the constitution, but also to weaken the progressive decisions of the Supreme Court, as described above. In addition, it is an interfaith couple, in a recent case before the High Court in Allahabad, who sought the dismissal of a lawsuit filed against them under section 366 of the Indian Penal Code of 1860. the kidnapping of a woman against her will, with the desire to be with her, to marry her. The district court, in this case, was a step-change in the defence of the infringement of the right to privacy, the right to freedom and the right to choose a life partner, while the removal of the decisions that were being overlooked.[2]

The Ordinance pierces the private institution of marriage by requiring the parties involved to refrain from undergoing conversion by marriage. However, in this segment, we restrict ourselves to the issue of privacy. Section 8 of the Ordinance requires an individual to submit a declaration sixty days in advance to the District Magistrate or Additional District Magistrate (as empowered by the former) that he/she wishes to convert his/her religion by free choice. This is a serious constitutional concern. The right to privacy and freedom of conscience resonates in Article 21 and 25 of the Constitution, respectively. With the Allahabad High Court rejecting mandatory publication of notice to invite objections under the Special Marriage Act, the legal position is rightly inclined towards the protection of privacy in contrast to the societal interest in the private act. However, by mandating declaration, the State is potentially deploying unreasonable procedures to impinge on inter-faith marriages. For now, inter-faith marriages face significant surveillance, and in the presence of a requirement for declaration, the police can prevent solemnization of such marriages.

 The ultimate stab to the right to privacy is clause 3 of Section 8 which authorizes the District Magistrate to conduct an inquiry through the police to discern ‘the real intention and purpose’ behind the conversion. As rightly held by the Supreme Court in Shafin Jahan v. Asokan K.M., the social values and morals have their space but they are not above the constitutionally guaranteed freedom. To have the freedom to choose one’s faith is essential to one’s autonomy, and such a guaranteed freedom strengthens the core norms of the Constitution. In our constitutional democracy governed by the rule of law, police cannot be authorized to violate the private spheres of individuals, especially in an attempt to discern the reason behind exercising the Constitutionally protected individual autonomy to conscience and religion. By legitimizing their power to infringe upon one’s privacy to adopt the religion of his/her spouse upon one’s volition (a protected freedom under Article 21 vis-à-vis Article 25) under the pretext of discerning the cause behind the conversion, the Ordinance paves way for an arbitrary encroachment on the individuals’ fundamental right to privacy. Therefore, the clause 3 is in absolute derogation to the fundamental rights of the individuals as mentioned herein.

In K.S. Puttuswamy v. Union of India, the guidelines provided by the Supreme Court to test infringement of the right to privacy by proportionality in paragraph 325 are “A law which encroaches upon privacy will have to withstand the touchstone of permissible restrictions on fundamental rights. In the context of Article 21, an invasion of privacy must be justified based on a law that stipulates a procedure that is fair, just, and reasonable. An invasion of life or personal liberty must meet the threefold requirement of (i) legality, which postulates the existence of law; (ii) need, defined in terms of a legitimate State aim; and (iii) proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.”

Therefore, based on the above test, we argue that firstly, the ordinance is unconstitutional as it not only violates the fundamental right to privacy but also arbitrarily infringes the fundamental right of the individuals to practice and profess a faith of their own choice as enshrined under Article 25. Secondly, there is no evidence on record to establish the legitimacy of the State aim in curbing ‘conversion by marriage’ by terming it unlawful unless the converting person freely provides that such conversion is not upon their volition. It is argued that without a legitimate State aim that overpowers individual liberty to adopt a religion of his/her choice and subsequently choose a partner, the Ordinance so passed is manifestly arbitrary and therefore, unconstitutional. Thirdly, it is argued that the means adopted to fulfil the unconstitutional aim is also an encroachment into the personal lives of individuals. The means ensure that any conversion of religion undergoes a strict investigation, thereby obstructing the liberty of the individuals, and the object ultimately curbs couples from consensually converting their religion(s) through marriage.

Section 3 of the  Ordinance prohibits any person to convert or attempt to convert “either directly or otherwise” any other person from one religion to another by marriage amidst other grounds. The Section is vaguely drafted and confers unguided power to the administration to prohibit couples from consensually marrying after a voluntary religious conversion. This is primarily because it gives wide scope to the administration to intrude upon one’s fundamental right to choose a partner when they have not registered according to the terms of the UP Ordinance. This is evident from a wedding being disrupted in Uttar Pradesh within a week of promulgation of the Ordinance. The inter-faith couple were freely exercising their right and were in fact supported by their parents. However, since the Ordinance requires a declaration and a subsequent investigation, the marriage had to be deferred until they complied with it or the Special Marriage Act.

Furthermore, Section 4 of the Ordinance authorizes any aggrieved person, his/her parents, or any other person related by blood to file an FIR when one contravenes the abovementioned Section 3. It is argued that the Section not only transcends societal morality over constitutional morality in contradiction to the Supreme Court’s dicta in Navtej Singh Johar v. Union of India, but is also against the ruling of the Supreme Court’s progressive observations in Shakti Vahini v. Union of India. In Shakti Vahini, the Supreme Court held that when two adults consensually choose each other as life partners, it is a manifestation of their choice which is recognized under Articles 19 and 21 of the Constitution. It further held that the consent of family or community or clan is not necessary when two adults agree to enter into wedlock. However, the Ordinance carves out an exception to this fundamental freedom which is disproportionate to the fulfilment of the very right.

As observed in Modern Dental College v. State of Madhya Pradesh and reiterated in Anuradha Bhasin v. Union India, for a limitation of a constitutional right to be constitutionally permissible, there needs to be proportionality stricto sensu between the importance of achieving the proper purpose and the societal importance of preventing the limitation on the constitutional right. There is and cannot be a legitimate State aim in disallowing conversion by marriage as it is a quintessential concomitant of an individual’s autonomy embedded in Article 19 and Article 21 of the Constitution. Although, the doctrine has not been consistently used by Indian courts in terms of ascertaining the gravity of the right infringing measure in proportion to the necessity of protection of such a right in question. If the courts in this case were to follow the high scrutiny and evidentiary value approach involving the substantive components of the said test, the legitimate aim in this case would fall short of requisite evidence needed to limit the fundamental right of privacy, right to individual liberty and the right to marry a person of one’s own choice.

Although nearly forty-five years ago, a Constitution Bench of the Supreme Court upheld the Madhya Pradesh and Orissa Freedom of Religion Acts by widely interpreting ‘public order’ in search of legislative competence,  the acts therein did not prohibit ‘conversion by marriage’ and thus, the ruling of the 5-judge bench is not only irrelevant to resolve the impending constitutional infringement but is also weakened by the progressive rulings of the Supreme Court as discussed above. Moreover, an interfaith couple in a recent case before the Allahabad High Court sought to quash an FIR filed against them under Section 366 of the Indian Penal Code, 1860 dealing with abduction of a woman against her will with an intent to marry her. The Court in this case adopted a progressive approach in upholding the nexus between privacy, liberty and the right to choose a life partner while overruling judgements that had overlooked this nexus. This is particularly an interesting development as the Chief Minister of Uttar Pradesh had referred to these judgements in forming the basis for the Ordinance while defending it.[3]

Conclusion

Based on the importance given to individual liberty and privacy in the precedents mentioned above, it is now clear that right to marry a person of one’s own choice, right to privacy are fundamental freedoms that cannot be restricted disproportionately by the State and its instrumentalities. The judgment of the Allahabad High Court in Safiya Sultana v. the State of U.P. is reassuring of this position, as it held that if publication of notice under the Special Marriage Act, 1954 inviting objections to the marriage were to be mandatory, they would invade the fundamental rights of liberty and privacy, including within its sphere the freedom to choose for marriage without interference from state and non-state actors. It will be interesting to observe whether the courts follow the landmark precedents in dealing with the petitions challenging the ordinance(s) and protect the constitutional morality from being trammelled by apparent societal morality.


[1] AN ANALYSIS OF THE UNLAWFUL RELIGIOUS CONVERSION ORDINANCE, 2020 (theadvocatesleague.in)

[2] Analysing the Unlawful Religious Conversion Ordinance, 2020 through the prism of proportionality – NLUJ Law Review

[3] The U.P. “Prohibition of Unlawful Religious Conversion Ordinance, 2020” – Daily Current Affair Article | Dhyeya IAS® – Best UPSC IAS CSE Online Coaching | Best UPSC Coaching | Top IAS Coaching in Delhi | Top CSE Coaching

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