Love Jihad: The Unlawful Conversion Of Religion Ordinance 2020

SYNOPSIS

Love jihad - something that has been all over the news for the past year. With the change in society, marriage customs need to be changed.

The same is highlighted in this article.

In this article, you will learn about the Ordinance that had been pending for the past one year being passed in 2020 - the Unlawful Religious Conversion Ordinance, 2020.

INTRODUCTION

The Uttar Pradesh Prohibition of Unlawful Religious Conversion Ordinance, 2020 (Hindi: Uttar Pradesh Vidhi VirudhDharmSamparivartanPratishadAdyadesh, 2020), unofficially referred to as the 'love jihad law' by most of the media, is a law enacted by the Government of Uttar Pradesh, India, on 24 November 2020.

The law makes conversion non-bailable with up to 10 years of jail time if undertaken unlawfully and requires that religious conversions for marriage in Uttar Pradesh be approved by a district magistrate. The proposed law does not include any restriction on interfaith marriage.

The ordinance was passed amid media publicity and heated debate over love jihad. However, the law itself contains no mention of love jihad.

The controversial Uttar Pradesh ordinance on unlawful conversion came into force after the State Governor Anandiben Patel signed off on it this Saturday.

The ordinance titled, Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 (Uttar Pradesh Vidhi Virudh Dharma SamparivartanPratishedhAdhyadhesh, 2020 in Hindi) was cleared by the State Cabinet earlier last week.

While the ordinance has been a subject of intense debate due to the implications it could have on inter-faith marriages, the ordinance governs not just inter-faith marriages but all religious conversions.

WHY SOME STATES ARE OPTING FOR LAWS ON FREEDOM OF RELIGION FOR MARRIAGE?

The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, was cleared by the State Cabinet earlier this week and promulgated on November 27.

The ordinance makes religious conversion a cognizable and non-bailable offense, inviting penalties of up to 10 years in prison if found to be affected for marriage or through misrepresentation, force, undue influence, coercion, allurement, or other allegedly fraudulent means.

Violation of the provisions of the law would invite a jail term of not less than one year, extendable to five years, with a fine of Rs.15,000. However, if a minor, a woman, or person belonging to the Scheduled Caste or Scheduled Tribes communities were converted through the said unlawful means, the jail term would be a minimum of three years and could be extended to 10 years with a fine of Rs.25,000.

The ordinance, passed by the State Cabinet, also lays down strict action against mass conversions, which would invite a jail term of not less than three years and up to 10 years and a fine of Rs.50,000.

The court shall also grant appropriate compensation payable by the accused to the victim of said conversion, which may extend to a maximum of Rs.5 lakh, said the ordinance.

The ordinance says any marriage done with the sole purpose of "unlawful conversion or vice-versa" by a man of one religion with a woman of another religion, "either by converting himself/herself before or after marriage or by converting the woman before or after shall be declared void".

One who desires to convert his or her religion shall give a declaration in a prescribed form at least 60 days in advance to the District Magistrate (DM) or Additional District Magistrate (ADM) that he or she wishes to convert on his or her own and with his or her free will without any force, coercion, undue influence or allurement. Violation of this provision could land a person in jail for three months to three years.

Any religious convertor who performs a ceremony for converting any person of one religion to another religion shall give one month's advance notice in a prescribed form to the DM or ADM. Violation of this provision would invite a jail term of one to five years.

The ordinance further said that the burden to prove that conversion was not done through misrepresentation, force, undue influence, coercion, allurement, fraudulent means, or for marriage would be on the person who caused the conversion or the person who facilitated it.

ALLAHABAD HC'S COMMENTS

The HC ruled that two of its earlier verdicts, which said religious conversion solely for marriage was prohibited, do not lay down good law.

In a significant judgment, the Allahabad High Court has reiterated that a person's right to live with people of their choice, irrespective of religion, is intrinsic to their right to life and personal liberty guaranteed by the Constitution.

A bench comprising Justices Pankaj Naqvi and Vivek Agarwal ruled that two of its earlier verdicts — which said that religious conversion solely for marriage was prohibited - are incorrect and do not lay down "good law".

The judgment assumes significance as Uttar Pradesh Chief Minister Yogi Adityanath had cited the HC's observations while announcing that he would bring in a law on "love jihad".

In the verdict passed on 11 November, the court observed, "Right to live with a person of his/her choice irrespective of religion professed by them, is intrinsic to right to life and personal liberty. Interference in a personal relationship would constitute a serious encroachment into the right to freedom of choice of the two individuals."

It also advocated against State interference in a relationship between two adults, noting, "We fail to understand that if the law permits two persons even of the same sex to live together peacefully then neither any individual nor a family nor even State can have any objection to the relationship of two major individuals who out of their own free will are living together."

It asserted that an adult's decision to live with another adult of their choice is "strictly a right of an individual", and that a breach of this right would amount to a breach of their "fundamental right to life and personal liberty as it includes right to freedom of choice, to choose a partner and right to live with dignity as enshrined in Article 21".

The high court also relied on the Supreme Court's judgment in the Hadiya case, to observe that "the Apex Court has consistently respected the liberty of an individual who has attained the age of majority".

The court was hearing a petition filed by a couple — Salamat Ansari and Priyanka Kharwar (now Alia) — who tied the knot on 19 August 2019 after Kharwar converted to Islam.

However, her father filed an FIR against Ansari, his mother, and brother, under various provisions of the Indian Penal Code (IPC) including Sections 363 (kidnapping), 366 (kidnapping, abducting or inducing a woman to compel her marriage), 352 (assault) and 506 (criminal intimidation), along with provisions of the Protection of Children from Sexual Offences (POCSO) Act.

The couple had approached the court asserting that both Ansari and Alia are adults and have willingly tied the knot.

YOGI ADITYANATH'S TAKES ON THIS

Uttar Pradesh Chief Minister Yogi Adityanath today cited an Allahabad High Court order on religious conversion for marriage to raise the issue of "love jihad", and invoke "Ram naam satya" - a Hindu funeral chant - to issue a thinly-veiled threat to "those who... play with our sisters' respect".

Yogi Adityanath, whose administration has been criticized for a spate of horrific crimes against women - including two separate instances of alleged rape against Dalit women in September - also repeated his plans for a "Mission Shakti" to "make sure all sisters and daughters are protected".

"Allahabad High Court has said religious conversion isn't necessary for marriage. The government will work to curb "love jihad". We will make the law. I warn those who conceal their identity and play with our sisters' respect," Yogi Adityanath said at a rally in Jaunpur for by-polls to eight Assembly seats.

"If you don't mend your ways, 'Ram naam satya' (the chant associated with Hindu funerals) journey will begin," he said, adding that his government would "make sure sisters, daughters are protected. We will go to every extent to make this operation a success".

"Love jihad" is the term used by right-wing groups to target relationships between Muslim men and Hindu women, which, they say, is an elaborate ruse to forcibly convert the women.

It is also a term that the government has disowned. In February, the government told parliament the term was not defined under existing laws and no case had been reported by any central agency.

Nevertheless, the subject has made headlines in recent weeks with Assam BJP kickstarting its campaign for next year's polls by saying girls in the state were "falling prey to love jihad".

In Maharashtra, a meeting of the National Commission for Women chief, Rekha Sharma, and the state's governor, was criticized for their discussion on the "rise in love jihad cases". The meeting came amid protests over a recent Tanishq ad that was withdrawn after allegations it promoted "love jihad".

Last month the Allahabad High Court dismissed a petition by a married couple seeking protection from "coercive actions" by relatives looking to interfere in their lives.

UP Chief Minister Yogi Adityanath was addressing an election rally in the state's Jaunpur district

Uttar Pradesh Chief Minister Yogi Adityanath today cited an Allahabad High Court order on religious conversion for marriage to raise the issue of "love jihad", and invoke "Ram naam satya" - a Hindu funeral chant - to issue a thinly-veiled threat to "those who... play with our sisters' respect".

Yogi Adityanath, whose administration has been criticized for a spate of horrific crimes against women - including two separate instances of alleged rape against Dalit women in September - also repeated his plans for a "Mission Shakti" to "make sure all sisters and daughters are protected".

"Allahabad High Court has said religious conversion isn't necessary for marriage. The government will work to curb "love jihad". We will make the law. I warn those who conceal their identity and play with our sisters' respect," Yogi Adityanath said at a rally in Jaunpur for by-polls to eight Assembly seats.

"If you don't mend your ways, 'Ram naam satya' (the chant associated with Hindu funerals) journey will begin," he said, adding that his government would "make sure sisters, daughters are protected. We will go to every extent to make this operation a success".

"Love jihad" is the term used by right-wing groups to target relationships between Muslim men and Hindu women, which, they say, is an elaborate ruse to forcibly convert the women.

It is also a term that the government has disowned. In February, the government told parliament the term was not defined under existing laws and no case had been reported by any central agency.

Nevertheless, the subject has made headlines in recent weeks with Assam BJP kickstarting its campaign for next year's polls by saying girls in the state were "falling prey to love jihad".

In Maharashtra, a meeting of the National Commission for Women chief, Rekha Sharma, and the state's governor, was criticized for their discussion on the "rise in love jihad cases". The meeting came amid protests over a recent Tanishq ad that was withdrawn after allegations it promoted "love jihad".

Last month the Allahabad High Court dismissed a petition by a married couple seeking protection from "coercive actions" by relatives looking to interfere in their lives.

The court, which never mentioned the term "love jihad", ruled that because the wife - who had been born into a Muslim family - only converted to Hinduism a month before her marriage - "it clearly reveals... the said conversion had only taken place for marriage".

The court also cited its 2014 order, which said: "...conversion of religion to Islam... solely for marriage, cannot be said to be a valid conversion".

FORMER SUPREME COURT JUDGE MADAN LOKUR'S SAY IN THIS MATTER

A recently passed ordinance in Uttar Pradesh outlawing forced conversions by marriage, coercion, or enticement is unfortunate because it puts freedom of choice, dignity, and human rights in the back seat, former Supreme Court judge Madan Lokur said.

Delivering a public lecture on Sunday, Lokur said that laws punishing interfaith marriages violated jurisprudence developed by the Supreme Court protecting freedom of choice and human dignity.

"Giving a back seat to freedom of choice, dignity and human rights, a stringent ordinance related to marriage and forcible conversion has recently been passed in Uttar Pradesh…Are we as a society prepared for this," Lokur said.

"What happens to the law declared by the Supreme Court in 2018 in the Hadiya case?" he asked, referring to the top court's verdict recognizing an adult woman's choice to convert to Islam and marry a man of her choice.

His comments came days after Uttar Pradesh promulgated the UP Prohibition of Unlawful Religious Conversion Ordinance-2020 that outlawed religious conversions by marriage, coercion, deceit or enticement, and prescribed up to 10 years imprisonment for those found guilty. The law includes a provision to void a marriage if it is solemnized primarily to convert a woman's faith. The burden of proof is on the person who converted, and those who performed the conversion.

The former judge, delivering the Sunil Memorial Lecture, recalled that in 2018, a similar law was introduced by the Uttarakhand legislature, called the Freedom of Religion Act, where marriages performed with the sole purpose of religious conversion were declared null and void.

"The purpose of these laws is to prohibit what is commonly known as ‘love jihad' which has no clear definition…The carefully drafted dignity jurisdiction assiduously developed over the years by the Supreme Court is slowly being given an undignified cremation of the Hathras kind and might reach a point of no return if so-called anti-love jihad laws are passed or extended to other communities," he said, referring to the forced cremation of a Dalit woman, a rape victim, by local authorities in Uttar Pradesh's Hathras district last month.

KEY PROVISIONS OF THE ORDINANCE

Definition of religion Section and allurement

'Religion' has been defined in [Section 2(h)] as an organized system of worship pattern, faith, belief, worship, or lifestyle as prevailing in India or any part of it and defined under any law or custom for the time being in force.

'Allurement' [Section 2(a)] means any gift, gratification, easy money or material benefit either in cash or kind, employment, free education in a reputed school run by any religious body or better lifestyle, divine pleasure or otherwise.

Definition of religion convertor

'Religion Convertor' [Section 2(i)] means a person of any religion who performs any act of conversion from one religion to another religion and by whatever name he is called such as Father, Karmkandi, Maulvi or Mulla, etc.

What does the ordinance prohibit?

One of the key provisions of the ordinance is Section 3.

It states that no person shall convert or attempt to convert either directly or otherwise any other person from one religion to another by use or practice of misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage nor shall any person abet, convince or conspire such conversion.

Who can lodge an FIR?

As per Section 4, any aggrieved person, his/her parents, brother, sister, or any other person who is related to him/her by blood, marriage, or adoption may lodge an FIR of such conversion which contravenes the provisions of Section 3.

Punishment

Section 5 prescribes punishment for contravention of Section 3.

A person found guilty of an offense under Section 3 will be punishable with imprisonment from 1 to 5 years and a fine of up to Rs. 15, 000.

Importantly, however, contravention of Section 3 concerning a minor, woman, or a person belonging to Scheduled Caste or Scheduled Tribe shall attract a punishment of imprisonment between 2 to 10 years and shall also be liable to a fine of up to Rs. 25,000.

A person previously convicted under section 3, if found guilty for a second time, will be punishable with double the punishment prescribed.

Effect on marriage

One of the most debated aspects of the ordinance is the implications it will have on inter-faith marriages.

Section 6 states that any marriage which was done for the sole purpose of unlawful conversion or vice-versa by the man of one religion with the woman of another religion, either by converting himself/herself before or after marriage or by converting the woman before or after marriage, shall be declared void by the family court or where the family court is not established, by the court having jurisdiction to try such case on a petition presented by either party thereto against the other party of the marriage.

Procedure for conversion

As stated earlier, the ordinance does not affect just inter-faith marriages. Anybody who wishes to convert from one religion to another has to go through the procedure prescribed by the ordinance. The procedure is laid down in Sections 8 and 9.

Prior notice

As per Section 8, one who desires to convert his or her religion should give a declaration in the form prescribed in Schedule I at least sixty days in advance to the District Magistrate or the Additional District Magistrate specially authorized by District Magistrate, that he wishes to convert his/her religion on his/her own and with his or her free consent without any force, coercion, undue influence or allurement.

The Religious Convertor who is slated to perform the conversion ceremony should also give a one month's advance notice in the form prescribed in Schedule II of such conversion to the District Magistrate or the Additional District Magistrate appointed for the same by the District Magistrate.

Thereafter, the police will conduct a police inquiry to ascertain the real intention, purpose, and cause of the proposed religious conversion.

A person undergoing religious conversion who violates Section 8 shall be punished with imprisonment between 6 months and 3 years and a fine which is not below Rs. 10,000.

A religious converter who violates Section 8 shall be punished with imprisonment between 1 to and 5 years and a fine which is not less than Rs. 25,000.

Declaration post-conversion

Section 9 lays down the procedure to be followed post-conversion.

It mandates that a converted person should send a declaration in the form prescribed in Schedule III within 60 days of the date of conversion to the District Magistrate of the district within which the person ordinarily resides.

The declaration should contain all required details including permanent address, place of residence, the religion to which the person originally belonged, and the religion to which the person has converted.

The converted individual should then appear before the District Magistrate within 21 days from the date of sending of the declaration to confirm the contents of the declaration.

The District Magistrate will record the contents of the declaration and the confirmation in a register maintained by him for this purpose.

Contravention of provisions of Section 9 will render the conversion illegal and void.

The burden of proof on accused

Another crucial provision in the ordinance is Section 12.

It states that the burden of proof as to whether a religious conversion was effected through misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage, lies on the person who has caused the conversion and, where such conversion has been facilitated by any person, on such other person.

CONCLUSION

With the changes in society, the laws must be amended similarly. In ancient times, it was a tradition to conduct marriages that were arranged. However, this is not the case now. Females go out to work and interact with males more freely. They have become more independent. Boys and girls have started staying away from their families for further studies and job opportunities. There has been a tremendous change in society.

This is the reason why marriages need to also adapt to these changes. The decision taken will favor a lot of the people in the latest generation however the people with orthodox thinking might retaliate.

 

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Ishita Desai Online
on 02 December 2020
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