In May 2018, the Governor of Uttarakhand assented to the Freedom of Religion Act, 2018 that criminalizes religious conversion on various grounds, including a conversion for the sake of marriage. Two years later, in November 2020, the State of Uttar Pradesh promulgated the Prohibition of Unlawful Conversion of Religion Ordinance, 2020 Like the Uttarakhand Ordinance, the U.P. Act prohibits certain types of religious conversion, including a conversion for the sole purpose of marriage.
Three sets of parties have filed petitions under Article 32 of the Constitution to challenge the Uttarakhand Act and U.P. Act before the Supreme Court of India. The first set of petitioners is a series of public-spirited individuals, including the Delhi advocate Vishal Thakre. The NGOs Citizens for Justice and Peace and People’s Union for Civil Liberties filed the second and third petitions, respectively. In this post, we briefly summarize the key contentions advanced by Vishal Thakre and Citizens for Justice and Peace in their petitions.
Overview of the Laws
Both the Act and Ordinance aim to prohibit religious conversions that take place for the sole purpose of marriage, among other reasons such as “misrepresentation, force, undue influence, coercion, allurement or by any other fraudulent means”. These laws assume that any person who converts to get married would not have done so freely and voluntarily. The two laws introduce nearly identical and very harsh criminal sanctions, to deter persons from engaging in illegal conversions.
There are two key things to note when looking at these laws. The first is that both introduce a very cumbersome procedure for anyone hoping to convert to another religion. Under Section 8 of both laws, persons hoping to convert have to file a declaration with the local District Magistrate. In Uttarakhand, the individual must do so one month before the conversion. In Uttar Pradesh, individuals must file an entire 60 days in advance. Similarly, the person performing the conversion, such as a religious priest, must file a similar declaration. It is to be followed by a policy enquiry to ascertain the real intent behind the conversion. Finally, in Uttar Pradesh, the converted person must even file a notice with their District Magistrate post-conversion and subsequently appear in-person before Magistrate, within the prescribed time period (see Section 9). Anyone who doesn’t comply with these regulations faces mandatory imprisonment.
The second key feature of these laws is that they prescribe very stringent criminal punishment. Section 5 of the Uttarakhand Act prescribes 1 to 5 years of imprisonment for anyone who causes an illegal conversion. If the person converted is a woman, minor or SC/ST, then the punishment increases to 2 to 7 years imprisonment. Similarly, the Uttar Pradesh Ordinance mandates 1 to 5 years of imprisonment for illegal conversions and, in the case of conversions of women, minors and SC/STs, 3 to 10 years imprisonment. As aforementioned, both laws also prescribe imprisonment for persons who merely fail to file the required paperwork for registering their conversion with the State. Finally, the burden of proof of the conversion is on the ‘religion convertor’ or the person who performs the act of conversion.
Grounds of Challenge
Freedom to Convert Oneself and Secularism
Article 25 of the Constitution protects the right to profess, practice and propagate religion. The Ordinance and the Act restrict this right by imposing surveillance and unreasonable restrictions on it. In S R Bommai v. Union of India, , the Supreme Court stated that
…introduction of religion into politics is not merely a negation of the constitutional mandates but also a positive violation of the constitution obligation, duty, responsibility and positive prescription of prohibition specifically enjoyed by the Constitution and the Representation of the People Act, 1951...
Important judgments like Kesavananda Bharti v. State of Kerala,  have upheld secularism as a basic feature of the Indian Constitution. Thus, framing the State as responsible for protecting and policing religious identities flies against the secular fabric of Indian democracy. By making the conditions around inter-faith marriage as severe as these laws do, the States infringe upon the right to freely practise one’s religion.
Freedom to Choose Partner
In Shafin Jahan v. Ashokan K.M , the Supreme Court recognised the right to marry a person of one’s choice as an important facet of the right to life and personal dignity under Article 21. The Court went on to assert that matters of faith form the core of constitutional liberty. The Act and the Ordinance this precedent. The laws believe conversions, especially before or after marriage, reflect the absence of rational choice. And presuppose that all conversions are forced and thus undermine the autonomy of an individual.
In Shakti Vahini v Union of India & ors,  the Court has held that preventing two consenting adults from marrying is absolutely 'illegal' and an erosion of personal choice. The laws reflect this erosion.
Privacy and Surveillance
The petitions argue that approaching the District Magistrate to validate conversion for purpose of marriage or otherwise, violates the right to privacy in two ways. First, the process for validating the conversion is intrusive as the person must produce personal documents before the District Magistrate. Second, the idea itself restricts a person’s autonomy in choosing marriage partners.
Privacy is declared as an inalienable right by the Supreme Court in K. S. Puttaswamy v. Union of India, . In 2018, the definition of privacy was expanded in Navtej Singh Johar vs. UOI, , where the Supreme Court held that the choice of a partner and desire for personal intimacy are matters of privacy.
The petition claims that such encroaching and scrutinising powers of the State in an individual’s intimate choice to convert on his/her own volition is a grave assault on an individual’s liberty. Moreover, declarations and intentions to marry being recorded with the local administration, along with personal information, can put such couples at risk. It is not unreasonable to presume that vigilante groups will invoke this law to target men from minority religions and interfere in inter-faith marriages. Such laws have the potential to easily become a weapon in the hands of bad elements to falsely implicate innocent persons.
The Supreme Court in Shafin Jahan vs Asokan K.M. (2018), emphasised the ill effects of State intervention in such matters. It remarked that “interference by the State in such matters has a seriously chilling effect on the exercise of freedoms.” The petitions argue that State interference with personal matters has a chilling effect on constitutionally guaranteed freedoms and liberties.
Discriminatory Gender Stereotypes
The Ordinance and Act reinforce a paternalistic view of women. In a rally on 31st October 2020, the Chief Minister of UP remarked, “We will also work to curb ‘love jihad’, we’ll make a law. It is my warning to those who play with the honour and dignity of sisters and daughters by hiding their real names and identities, if they do not mend their ways, the Ram Naam Satya journey will start”. Such statements preceding the Ordinance reflect the sexist sentiments that view women as upholders of honour of the community. Further, they assume that women require the State’s protection from men luring them to another religion under the garb of marriage. The law, seen in this context, restrains a woman’s autonomy and choice of partner and reads regressively against the Constitution, which treats all sexes equally.
In the past, the Court has warned against using ‘protective’ laws for curbing the agency of women. In Anuj Garg v. Hotel Assc of India , the Supreme Court found laws with ‘protective discrimination’ intention as double-edged swords: women would be equally vulnerable without state intervention as compared to the loss of freedom because of it.
The Law and the Ordinance go against the spirit of Fraternity as envisioned in the Preamble. The Petitions argue that India is a secular, democratic republic. The equality of citizenship does not privilege any person of one faith over another. Implementation of this Act and Ordinance will imply that all other religions being sought to convert into are products of force or fraud.
B.R. Ambedkar’s beliefs about the evils of caste, community and gender discrimination were evidenced in the Constitutional provisions and subsequent laws like the Special Marriages Act, 1954. He prescribed inter-caste marriage as the remedy for the abolition of caste and India to move towards a caste-less, equality driven society. Laws like the one being challenged go against these principles and vision.
Lastly, the Law and the Ordinance, it is argued, criminalise inter-faith marriages, religious conversion and freedom of choice – all basic rights under the Constitution. Normally, in criminal cases, the burden of proof lies with the prosecution. Under these laws, the burden of proof lies with the converted individual and/or person causing a conversion. This makes it easy for family members and mala fide third parties to file false complaints without evidence to harass inter-faith couples.
Except in exceptional offences, the Indian Penal Code prescribes less severe punishment for an attempt as compared to the offence itself (for instance, in the case of sedition). The impugned laws, on the other hand, prescribe equal quantum of punishment for committing the crime and for attempts. The petitions argue that through such excessive criminalisation, the impugned laws equate conversion due to marriage to “acts of terror”.