UP anti-conversion and judicial pronouncements on related issues

Udayan Hazarika

(The writer can be reached at udayanhazarika@hotmail.com)

The UP Government's ordinance namely Uttar Pradesh Prohibition of Unlawful Conversion Religion Ordinance 2020 has been the matter of nationwide discussion recently. Taking cue from this Ordinance, several other BJP-led States have also been contemplating on enacting similar legislations. Interestingly, the mater has also found a place in Assam where we boast our tradition of liberal, inter-caste, inter-community, or inter-faith marriages. The Finance Minister of Assam has recently come out with an announcement in a meeting that the State government is also contemplating on such legislation. Taking this into account, there has been large-scale resentments all over the State.

The UP ordinance is unique in the sense that the matter was judicially settled only a few days back negating the approval to such an incident. A Criminal Misc Writ Petition (No. 11367 of 2020) was filed by Salmat Ansari and 3 others against the FIR filed against them. The case in brief is that the Petitioner No-4 Smti Priyanka Kharwar is around 21 years old who entered into a matrimonial alliance with the Petitioner No-1 Shri Salmat Ansari and thus a legally wedded couple and living together since then. An FIR was lodged by the father of Priyanka Kharwar against the marriage and a case Crime No. 011 of 2019 was registered under Section 363, 366, 352, 506 IPC and Section 7/8 POSCO Act in Vishnupura Police Station. The petitioners' prayer is that they have attained the Age of majority and thus competent to contract a marriage and accordingly performed Nikah on 19-8-2019 as per Muslim rights and rituals after wilful conversion of Priynka to Muslim faith and since then they are living as a legally wedded couple. The FIR is prompted by malice and mischief and only with a view to bring an end to martial ties. The Allahabad High Court after thorough examination of the matter, responded to the Writ Petition positively and quashed the FIR.

Despite the judgement in the aforementioned case, the present Ordinance was promulgated by the UP Government on 28th November 2020. The Ordinance in the preamble categorically disclosed the purpose of the ordinance as to prohibit unlawful conversion from one religion to another by misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage. The ordinance has defined the means of conversion as stated above except that of the marriage. In fact in most of the definitions there is scope to act or proceed according to the subjective judgement of the executing authority. For example, while giving the meaning of 'allurement' it is stated that "offer of any temptation" in the form of various gifts. Now what determines the temptation or criteria thereof has not been stated. Similarly, in clause 6, for marriage, it is stated that it could be any marriage which is done with the sole purpose of unlawful conversion or vice versa converting the bride or bridegroom before or after marriage shall be declared as void. This is the most dangerous clause of the ordinance and it declares the hidden purpose of the Ordinance. There is nothing as to how to determine 'the sole purpose of a marriage as unlawful conversion'. This is subjective concept and in absence of any declared criteria to determine such purpose, any authority can proceed subjectively against any such inter-religious marriages. The Ordinance also not declared who is the competent authority to proceed against such marriages. An aggrieved complainant who is related by blood may lodge an FIR; however how the police will proceed has not been disclosed in the Act. Moreover, as the penal actions concern various provisions of IPC, and offences mentioned have roots in the CrPC, whether the views of the Government of India were obtained or not has not been disclosed. Burden of proof vide clause 12 is entrusted on the accused person and not on the complainant.

In Salamat Ansari vs State of U.P. and Others while giving judgement on 11 November, 2020, the Division Bench of the Allahabad High Court referred to the case of Lata Singh v State of U.P, in which a Bench of two judges of the Supreme Court took judicial notice of the harassment, threat and violence meted out to young women and men who marry outside their caste or faith. The Apex Court in the judgement at para-17 observed that:

"...This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut-off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage. We, therefore, direct that the administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple is not harassed by anyone nor subjected to threats or acts of violence, and anyone who gives such threats or harasses or commits acts of violence either himself or at his instigation, is taken to task by instituting criminal proceedings by the police against such persons and further stern action is taken against such persons as provided by law."

There are ample instances in which the Apex Court had pronounced similar judgements. The Court while pronouncing one of such judgments, stated that the Court would not look upon the petitioners No-1 & 4 as Hindu or Muslim but as two grown-up individuals who out of their own free will and choice are living together peacefully and happily over a year. "The Courts and the Constitutional Courts in particular are enjoined to uphold the life and liberty of an individual guaranteed under Article 21 of the Constitution of India. 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…" The Court also observed that, "Decision of an individual who is of the age of majority, to live with an individual of his/her choice is strictly a right of an individual and when this right is infringed it would constitute breach of his/her 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 of the Constitution of India".

Similar pronouncements have also been made in the Karnataka High Court. Despite having so many instances, the promulgation of Ordinance or enactment of Acts on the issues which have already been decided by the Judiciary following the principles laid down in the Constitution would only mean that Government is not willing to follow the constitutional spirit and principle which in turn means infringement of fundamental rights and personal liberty. Already instances from UP have come in which police acted on their own and stopped an ongoing marriage where both the families of bride and bridegroom were present.