Effects of the Uttar Pradesh Ordinance on the rights of the people

Effects of the Uttar Pradesh Ordinance on the rights of the people written by Pooja student of SASTRA Deemed University

Introduction

An ordinance is a rule made by the government or any person in authority. The Uttar Pradesh government has recently passed an ordinance under Article 213(1) of the constitution against the unlawful conversion of religion. The said ordinance was passed by the state cabinet of Yogi Adityanath and promulgated by Anandiben Patel, the Governor. The new ordinance criminalizes the unlawful religious conversion which is done for the sole purpose of marriage and also declares such marriage as void. Other states like Assam, Karnataka, Haryana, and Madhya Pradesh have announced similar laws. The main aim of the ordinance is to curb the hike of unlawful religious conversion in the country. Some people call it the law against the so-called “love jihad”. Many religious conversions are done forcibly, therefore the ordinance prevents and punishes a person converting the religion for the sole reason of marriage. This new law imposes a 10-year jail term for the offenders.

Key features of the ordinance

India is a multi-cultural and dynamic country with many types of religions and beliefs. By a religious conversion, a person accepts a new set of beliefs that is different from the previous religion. No person should be forced to convert to a different religion. The UP government ordinance has tried to stop these types of forced conversion. Some of the key features of the ordinance are:
• Prohibits unlawful conversion by force, misrepresentation, undue influence, deception or fraudulent action, by greed, or by marriage. It also prohibits conversion done with minor or scheduled caste or scheduled tribe woman.
• The State legislature was not in session, therefore the Governor took immediate action and had passed this ordinance. The Governor has the power to pass such an ordinance under Article 213(1) of the Indian constitution.
• The ordinance is extended to the whole state of Uttar Pradesh.
• The ordinance considers the unlawful conversion of religion as a cognizable and non-bailable offense.
• The term of imprisonment is up to 10 years for the offense.
• Inter-religious marriages are not banned under this ordinance.
• The reconversion of the immediate previous religion will not be considered as unlawful conversion under this ordinance.
• The ordinance also prohibits mass conversion. When two or more person converts to other religion then it is known as mass conversion.
• The conversion done for the sole purpose of marriage is considered an invalid conversion and the marriage is held null and void.
• Some of the main rules for conversion are: the person converting has to give a declaration to District Magistrate or the Additional District Magistrate before 60 days of such conversion. The religious convertor should five 1 month advance notice if such conversion. A police inquiry should be done when such notice or declaration is received by Magistrate.
• The burden of proof lies on the person who is charged with such an offense.
Religion conversion “by marriage” – How it affects the rights of the people
The Chief Minister of Uttar Pradesh had promised to bring an effective law against the love jihad a few days before the ordinance. The Allahabad High Court dismissed a plea of a married couple in the month of October 2020. In that case, the woman was Muslim by birth and she converted to Hinduism in June, which is exactly one month and 2 days before her marriage. The said conversion has been done for the purpose of marriage. Therefore the court held that religious conversion solely for marriage was not acceptable. Even in the 2014 case, the Allahabad High Court has held that conversion of religion done to spreads the tenets of a particular religion would impinge the freedom of conscience under Article 25 of the Constitution.
Article 25 of the constitution empowers the people of the country with religious freedom. Every person has the right to profess, practice, and propagate their religion freely. Everyone is allowed to change his religion at their discretion and no one can be forced to change his religion. The ordinance prohibits and punishes the conversion of religion under force or coercion. Therefore, the ordinance would the freedom of religious conscience with Article 25 of the constitution.
In one way, the ordinance protects the spirit of freedom of religion by prohibiting forced and fraudulent conversions. But on the other hand, it also violates the freedom of individual liberty. The right of choice and liberty is highly affected by the ordinance. The ordinance prohibits the conversion of religion which is done “by marriage” also, therefore this weakens individual freedom. The ordinance weakens freedom and increases the communal feeling. The term “love jihad” has not received any legal recognition, therefore an ordinance against it would affect the fundamental rights of the people. The ordinance considers every religious conversion as unlawful except it has been approved and certified by the state.
Both the judgments of Allahabad High Court in the Priyanshi and Noor Jahan case has not taken the issue of liberty into consideration. Two matured individuals have the freedom to choose a partner in their life. Such right to choose the life partner is implicit under the right to life and personal liberty under Article 21 of the Indian Constitution. The meaning of personal liberty was widely expanded when Section 377 of the Indian Penal Code was decriminalized. In this country, if two persons of the same gender are allowed to live together, then why two persons of different religions by marriage convert their religion cannot live together.
The Allahabad High Court on 11th November 2020 observed that the right to choose a person as a life partner irrespective of their religion is a right under Article 21, which enshrines the right to life and personal liberty. In this case, the husband and wife filed petitions for quashing the FIR and the couple contended that they were in the age of majority and competent to the contract of marriage and they had already been living together as a couple for 1 year. The court held that the individuals are grown up and were living together for 1 year, therefore, it is their right of choice. So, the FIR was quashed and the writ petition was succeeded.
A person’s decisions about his or her marriage are personal to them, the state cannot ask the people to justify their personal choices. It is not the duty of the people to justify their decision regarding their personal life. The ordinance gives power to the State in taking decisions about other citizen’s personal choices. The right to liberty, privacy, autonomy, and human dignity under Article 21 of the Indian Constitution is clearly violated. The right of privacy was upheld in the KS Puttuswamy case, but the ordinance obstructs the basic element of the right to privacy. The personal autonomy is destroyed unreasonably and the conditions to satisfy the lawful conversion are intruding on the personal liberty and privacy of the people. The people have the right to change the faith and it is a part of their fundamental right of choice. There is no need for social approval for personal choices or decisions.

Conclusion

The ordinance strangely places the burden of proof on the person who has converted his or her religion rather than the person who alleged such conversion as unlawful. The ordinance is an anti-law of love jihad. Instead of bringing an anti-law, the government could have amended the provisions of the Special Marriage Act. The inter-faith marriages have to be promoted in our county, only the Special Marriage Act can do that. The ordinance puts social pressure and places a barrier in a person’s right to choose his life decisions. An investigation happens after the declaration of conversion, therefore this clearly violates the right to privacy and dignity of the individual. Many people have opposed this ordinance, as it is deliberately oppressive in nature. The prohibition of religious conversion by force or undue influence protects the rights of the people, but on the other hand, religious conversion by marriage considered unlawful by the ordinance is violating the rights of the people.

^[1] Priyanshi @ Km. Shamren v. State of Uttar Pradesh, Writ C No. 14288 of 2020.

^[2] Noor Jahan Begum @ Anjali Mishra v. State of Uttar Pradesh, Writ C No. 57068 of 2014.

^[3] Navtej Johar v. Union of India, (2018) 1 S.C.C. 791.

^[4] Salamat Ansari v. State of Uttar Pradesh, 2020 S.C.C. OnLine All 1382.

^[5] Justice K.S Puttuswamy v. Union of India, Writ Petition (CIVIL) No. 494 of 2012.

^[6] Shafin Jahan v. Asokan K.M, (2018) 16 S.C.C. 368.