General Studies- II (Government policies)
Editorials In Depth
02 Jan 2021
The U.P. religious conversion ordinance is unconstitutional, vilifies inter-faith marriages and violates key rights, says a former Supreme Court justice.
Article 213 (1) of the Constitution of India provides: “If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require: …”
There are, therefore, three pre-conditions to be satisfied before the Governor promulgates an ordinance:
- The State Legislature should not be in session;
- Circumstances should exist for promulgating an ordinance and importantly,
- Those circumstances must warrant immediate action.
Circumstances and urgency for an ordinance
There is no established practice requiring the Governor (or the President under Article 123 of the Constitution) to state the circumstances for immediate action.
Therefore, while the recent Commission for Air Quality Management Ordinance gave a four page justification for immediate action, the Farmer’s Produce Trade and Commerce Ordinance merely stated in the preamble what the ordinance provides for, but did not disclose the circumstances and urgency for immediate action.
- 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, but, more importantly, enable legislators to understand why they are, in a sense, by-passed and why a debate and discussion in the Legislature could not be awaited.
The U.P. ordinance
Highlights of Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance
- It makes religious conversion for marriage a non-bailable offence.
- The onus will be on the defendant to prove that conversion was not for marriage.
- The notice period to the district magistrate for the religious conversion is two months.
- In case of conversion done by a woman for the sole purpose of marriage, the marriage would be declared null and void.
The preamble to the The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, commonly called the anti-love jihad ordinance, merely indicates what it provides for:
- Such as, unlawful conversion from one religion to another by coercion, misrepresentation and so on “or by marriage”.
- It then proceeds to record the satisfaction of the Governor of the existence of circumstances and the necessity for “him/her to take immediate action”.
Circumstances requiring promulgation of the ordinance as far as marriage
If one fraudulent or coercive inter-faith marriage is taking place, the police can certainly prevent it, as they supposedly do in child marriages. An ordinance is not required for it.
- However, if more than one such fraudulent or coercive inter-faith marriage is expected to take place, the State government would have information of mass conversions for the purpose of marriage.
- In the normal course, it is unlikely that these mass conversions would be in secret and almost simultaneous.
- These can also be prevented by an alert police force by invoking existing legal provisions.
Rights issues
The offence of attempting to convert poses a bigger rights issue.
- Section 7 of Ordinance provides that upon receiving information (it may be fake news) that a religious conversion is designed to take place, a police officer is authorised under the Criminal Procedure Code without orders from a Magistrate and without a warrant, to arrest the person so designing, if it appears that the commission of the offence cannot be otherwise prevented.
- The nature of information includes an allegation of allurement which includes an offer of any temptation in the form of a gift or gratification.
Concerns
- So, if a boy and girl of different religions are seen talking together or eating out, it is easy for a so-called aggrieved person (who could be any stranger) to complain to the police that he overheard a conversation in which a temptation was offered to the girl, including a pizza, as has been recently reported.
- This could trigger the arrest of the boy offering the allurement, his friends and family (as conspirators) with no questions asked.
District Magistrate (DM) permission
Should someone genuinely desire to convert but not get married, Under Section 8, that person would have to inform the District Magistrate (DM) two months in advance of the plan through a declaration.
The DM requires the police to inquire the real purpose of conversion and file a report (in a sealed cover?) with the DM.
There are several questions arise:
- What is the true purpose of the police inquiry?
- If the report concludes that the desire to convert is not for a good enough reason, can the DM refuse permission to convert?
- Is a pre-crime scenario contemplated?
Burden of proof
- 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.
- How is that person expected to know the mind of the converted? It is only the person converted who can answer that question and nobody else, as in Hadiya’s case.
Consequences of such ordinances
The ordinance is prone to abuse and we have seen its consequences — of intimidation, bullying, arbitrary arrests and the loss of a foetus.
- It is ill-conceived, overbroad and vague in many respects.
- It 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.
Source: The Hindu
