This Article is written by Mohamed Sultan Maricar, student of Crescent school of Law , Chennai.
The implementation of the latest ordinance Prohibition of Unlawful conversion of religion by the Uttar Pradesh Government has created lots of criticisms all over India. This ordinance had made religious conversion by marriage unlawful and also provided the procedure to be followed for the conversion of religion. Let us analyse those and come to a conclusion.
What is an Ordinance?
Article 123 of the Indian Constitution provides for the ordinance making power of the president. Ordinances are laws which are not enacted by the Parliament but promulgated by the President of India when Lok Sabha and Rajya Sabha or either of those is not in session. Using ordinances, immediate legislative actions can be taken. But, for an ordinance to exist permanently, it should be passed by the Parliament within six weeks of re-assembly. An ordinance has to be converted into legislation within 6 Weeks of commencement of the Parliament session, or else it will lapse. An ordinance can be re-promulgated only thrice.
What does this Ordinance provide us?
This Ordinance prohibits the conversion by means of misrepresentation, force, coercion, undue influence, allurement or by any fraudulent means. Section 3 of the ordinance makes religious conversion by marriage also unlawful. Violation of this Provision leads to a minimum of 1 year to 5 years of Imprisonment and a fine of Rs.15,000. If it happens with women, the proposed punishment is doubled. And interestingly if the person reconverts to his preceding religion, he won’t be coming under this aforementioned purview.
It is a Non-Bailable and Cognizable Offence. Section 4 enables the person related by blood or by marriage to lodge an FIR.
Effect of Law
This Law has a huge effect on interfaith marriages. As religious conversion which was followed as a substitute for the Special Marriage Act process, has now been criminalized. So, now interfaith marriages are not as easy as before. As, If they adopt the Special Marriage Act, they need for a period of 30 days, in the same way, if they opt for religious conversion, they need to undergo the lengthy process as prescribed below. This Law has made the Burden of Proof on the accused. So, this would greatly affect the inter-faith couples. This Love Jihad Ordinance would be used as a weapon by the family members against the couples. Even though the ordinance has not been particular with any religion, it has been remarked as ‘Love Jihad’ by the UP Chief Minister, which is highly objectionable.
Effect on Marriage
Section 6 of the Love Jihad Ordinance provides that any marriage which was done for the sole purpose of unlawful conversion by the man of one religion with the woman of another religion shall be declared void. Choosing a religion is one’s fundamental right and there can be no restrictions on it. Adding marriage as a ground for Unlawful Conversion of Religion, this would lead to harassment of many interfaith Marriages.
Special Marriage Act
Most people use conversion of religion as a convenience for marriage. As, marrying under a Special Marriage Act is a huge process and procedures. Many people opt to convert their religion for marriage as in case of marrying under the Special marriage Act, there has been a 30 days notice period to raise objections, this leads to harassment by the family members and honour killings. So, couples choose to convert their religion in order to bypass the 30 day notice period. There are already numerous laws that invalidate marriage done under coercion. Section 4 enables the blood or by marriage to lodge an FIR. This proposed law would only lead to harassment of interfaith couples. Therefore, bringing a well established procedure law for Special Marriage is more important than the pronounced ordinance. Proper protection to those people must be ensured throughout the notice period.
Procedure for conversion
Section 8 and 9 provides for it.
- First, a Prior Notice has to be given in the form prescribed in the Schedule I at least 60 days prior to the conversion to the District Magistrate or the Additional District Magistrate specially authorized by District Magistrate, stating that he/she wishes to convert her religion with Free Consent.
- Next, The Religious Converter should 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.
- Then a police inquiry will be made to ascertain the real intention, purpose, and cause of the proposed religious conversion.
If any person converting their religion violating the above provision will be punished with imprisonment between 6 months and 3 years and fine above Rs. 10,000.
If there is violation from the side of convertor, then he would be punished with 1- 5 years of imprisonment and above Rs.25,000.
Recently Allahabad High Court gave a verdict that “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”. This has not been taken into consideration.
In the Hadiya case, the Supreme Court held that the right to change of faith is part of the fundamental right of choice.
So, Choosing one’s religion is one’s fundamental right. It should not be made through a huge lengthy process. He/she may be harassed during the whole process and there are chances of high irregularities.
This Law is against the forcible conversion of religion or conversion only for marriage or for some benefits. The procedure to be followed is a little lengthy process but if he/she is stubborn with his decision on conversion of religion, no one can stop him. There is no bar to a person who wants to convert himself to the faith of another religion. But these provisions can be misused very easily even by their family members. And as the burden of proof lies with the Accused, it also makes it much more complicated. So, the protection of those people must be ensured first and a well established Special Marriage must be enacted.
- Constitution of India
- Shafin Jahan v. Ashokan K.M. A 366/2018 (arising out of SLP (Crl.) 5777/2017)
- The Uttar Pradesh Prohibition of Unlawful conversion of religion Ordinance,2020; (Love Jihad Ordinance)
- The Times of India Newspaper – 29.11.2020