Aakash Mishra
Jindal Global Law School
Introduction:
The recent Ordinance which has been introduced by the Uttar Pradesh government known as The Uttar Pradesh Prohibition of Unlawful Religious Conversion Ordinance 2020, popularly known as the love-jihad law is being considered to be constitutionally ultra vires as well as immoral because as per this Ordinance, every person who had their religion converted will be inspected and only after inspection, the State shall certify such conversion.
Violation of Article 21:
The centre of the controversy is its conflict with article 21. The idea of the state compelling people to explain and justify a personal choice in matters of marriage has unethical connotations and opposes the very basic rights of freedom of choice, privacy and liberty that have been bestowed upon us by the Constitution.
The Ordinance seeks to criminalize forceful religious conversions which are done for the purpose of marriage.
As per section 3 of the Ordinance, no person is allowed to convert his or her religion at the time of marriage hereby making such conversion to be unlawful and if anyone violates such provision then it can lead to imprisonment for a period of 1 year to maximum 5 years and also a penalty of Rs. 15000/- would have to be paid by the person in default. Furthermore, if a woman commits the same crime then the punishment for her would be double and also the offence committed are cognizable and non-bailable in nature.
As per section 4 of the Ordinance, if any person is related to the person who has converted to another religion, either by blood or marriage is expected to lodge an FIR against such conversion.
Such provisions have the effect of placing arbitrary power in the hands of the state, which obstructs the citizens’ wholesome exercise of right to privacy, autonomy, dignity and personal liberty.
In the case of Puttaswamy, The Supreme Court states :
“Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognizes the plurality and diversity of our culture.”[i]
Provisions provided in the Ordinance also lead to an incursion into the domain of personal autonomy. As per the provisions, a notice is to be sent in advance prior to the conversion to the District Magistrate i.e. 60 days before the conversion an enquiry will be set up to find out the purpose behind such conversion and also after the conversion the subject has to present in person before the District Magistrate to confirm the same and would be subject to public objection before the conversion is confirmed. This is nothing but a blatant violation of right to privacy and individual autonomy.
In this regard, The Supreme Court has also stated in the case of Joseph Shine that :
“The right to privacy depends on the exercise of autonomy and agency by individuals. In situations where citizens are disabled from exercising these essential attributes, Courts must step in to ensure that dignity is realized in the fullest sense.”[ii]
Conditions for Invading Rights of Personal Liberty and Privacy:
Every citizen has the right to choose a life partner and such right forms an integral part of the umbrella right to privacy. As per the case of Puttaswamy, there are certain conditions that are required to be fulfilled by the State in order for it to place restrictions on this right:
- Legality
- Need
- Proportionality which ensures a rational nexus between the objects and the means adopted to achieve them.[iii]
Although the Ordinance could satisfy the first criteria i.e. legality however, when it comes to second and third criterion, the State will be at fault while fulfilling the following two conditions:
Need—
As per the public statement issued by UP Chief Minister, the basic objective behind this law was to control the love-jihad cases. It is a term used mostly to dishonor the marriages between Hindus and Muslims. It is considered to be a joint effort for conversion in the name of love but such statements were just mere statements, as any facts or evidences proving such claims cannot back it.
Investigation Team of Kanpur had looked over the cases of Hindu Muslim marriage and then later submitted a report stating that no such conspiracies or a joint effort was established during such investigation.
Hence, the Ordinance has failed to establish the criteria of need.
Proportionality—
The purpose behind introducing such laws is to criminalize every inter-faith marriage. Such laws coerces people to file criminal cases against those who got married via conversion and the burden of proof lies on the innocent. Furthermore, the complaints that are lodged can be prosecuted without any evidence or proof. Such laws would disproportionately terrify couples that get married post conversion.
In the case of Joseph Shine, the judgment given by Justice Indu Malhotra states:
“The element of public censure, visiting the delinquent with penal consequences and overriding individual rights, would be justified only when the society is directly impacted by such conduct. In fact, a much stronger justification is required where an offence is punishable with imprisonment. The State must follow the minimalist approach in the criminalization of offences, keeping in view the respect for the autonomy of the individual to make his/her personal choices.”[iv]
Hence, in view of the above the state fails to fulfill the criteria of proportionality.
Undermining the Agency of Women:
It is very clear from the provisions of the Ordinance that women are subject to ownership by men and that they are needed to be protected by men. Women are also being subjected to higher punishment as per the laws and provisions for converting their religion for the purpose of marriage. Women are considered to be weak and vulnerable as per the provisions of the Ordinance, which is not acceptable at all costs.
In the case of Hadiya, Supreme Court had stated that :
“In deciding whether Shafin Jahan is a fit person for Hadiya to marry, the High Court has entered into prohibited terrain. Our choices are respected because they are ours. Social approval for intimate personal decisions is not the basis for recognizing them. Indeed, the Constitution protects personal liberty from disapproving audiences. The strength of our Constitution lies in its acceptance of the plurality and diversity of our culture. Intimacies of marriage, including the choices, which individuals make on whether or not to marry and on whom to marry, lie outside the control of the State. Courts as upholders of constitutional freedoms must safeguard these freedoms”[v]
Hence, it is important that such laws and provisions as per the Ordinance passed must be reconsidered and an attempt must be made to protect citizens by allowing them to exercise the fundamental rights that have been bestowed upon them by the Indian Constitution.
REFERENCES:
[i] K.S. Puttaswamy v Union of India (2017) 10 SCC 1
[ii] Joseph Shine v Union of India (2018) SC 1676
[iii] https://www.livelaw.in/columns/up-ordinance-criminalizing-conversion-for-marriage-is-an-assault-on-personal-liberty-166575
[iv] Joseph Shine v Union of India (2018) SC 1676
[v] Shafin Jahan v Asokan K.M. & Ors (2018) SC 343
