On UP ordinance on religious conversion for marriage

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By Tejaswi Ravinder

Hyderabad: After mass terror attacks in 2009, inter-ethnic marriages in north-western China’s Xinjiang have become very rare. In 2013, when 24-year-old Mawlan, born to Uyghur parents and a musician by profession, secretly married his girlfriend, Ma Jie, a Han, they attracted media’s attention.

“I acted first and told them afterwards. They would never allow me to marry a Han, I had no choice,” Mawlan told reporters. The couple reportedly suffer peer pressure and never had a formal wedding ceremony, fearing hostile reactions from their neighbors and relatives.

Mawlan and Ma Jie’s secret marriage would have been vehemently dubbed as Love Jihad had it taken place in current India’s Uttar Pradesh state between a Hindu and a non-Hindu.

The religious differences would have been adequate for the police to slap the couple with non-bailable offences under the latest Uttar Pradesh Unlawful Conversion of Religious Ordinance, 2020.

Apparently, the Lucknow cops did not waste a minute in stopping the marriage of Raina Gupta and Mohammad Asif, the couple who were about to join in wedlock involving rituals of both their religions. On December 2, 2020, the day of their planned wedding, the police charged them for violating the new law that was promulgated just on November 27, 2020, to declare marriages between inter-faith partners as void.

The intent of the new law is stated to be to provide for prohibition of unlawful conversion from one religion to another by misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage. It defines unlawful conversion as any conversion not in accordance with the law of the land.

The supreme law of the land, the Constitution, has not defined the term ‘religion’ anywhere in its text. Despite guaranteeing the right to freedom of religion as a fundamental right to all its citizens through Article 25, it left room for the Supreme Court to give the term an out-and-out definition.

The Supreme Court defined religion in Shirur Mutt, “Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic.”

As a matter of fact, not every religion in India worships a deity or believes that God exists in a certain form. Doctrines have widely been accepted as the basis for a religion. However, the apex court said that it is not correct to say religion is nothing but a doctrine or belief.

“A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion,” the seven-judge bench ruled in Shirur Mutt.

Courts have held that the guarantee under the Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression ‘practice of religion.

Uttar Pradesh’s new unlawful conversion ordinance bluntly lays down a procedure and stipulates a time-frame for discovering the Supreme Being. It narrows down the natural encounter with god or the process of introspection, choosing a faith or a belief system to a transaction that needs to undergo a test to be proved legitimate. Failing this, the act holds the power to impose legal sanctions.

Article 25 affirms that all persons are equally entitled to freedom of conscience and the right to freely profess, practise and propagate religion. The anti-conversion laws are in an antagonistic position against the three freedoms guaranteed by the constitution under the religious freedom clause.

While discussing religious freedom in the constituent assembly, Professor Shibban Lal Saxena, a politician from Uttar Pradesh pointed out that the ultimate right of the minority is the goodwill of the majority.

He observed that Sardar Patel and Mahatma Gandhi’s stance to form an inclusive India that does not discriminate the minority’s rights is an act of benevolence by majoritarian Hindus.

During the constituent assembly debates, Saxena commented, “Thirty crores of our people are Hindus; yet they shall not have the right to be taught even the universal religious book, the Gita, in the schools. Why have we done that? Because, at that time, before the partition, it was thought that in view of the fact that there are various religions, let it not be done. Now, when only three crores out of thirty-three are the minority, still, the majority is denying itself the opportunity of teaching the children the religious precepts of its community. Yet, we have not changed these rights, because our leader has told us not to interfere with them.”

The undertones of resentment combined with subordination in Professor Saxena’s speech is what seems to take an aggressive form today with the Union Ministers of the ruling BJP government declaring Gita and Yoga to be taught in schools and with the party men and the representatives allegedly involving in public shaming of inter-faith couples, lynching minorities, bringing anti-cow slaughter laws and the imposition of the current law to declare whether a conversion is according to law or an interfaith marriage is valid or void.

BJP in its hurry to implement its Hindutva agenda by interfering in the personal lives of consenting adults refused to check whether the legislation maintains its consistency with the constitutional ideals. It is a classic example of the State’s intrusion with the autonomy of an individual.

Section 12 of the ordinance lays the burden of proof on the person accused of carrying out unlawful conversions. Section 9 prescribes that a converted person must send the form of declaration (Schedule-III) to the district magistrate within sixty days from the date of conversion, which would be exhibited on the notice board of his office till the date of confirmation. The converted individual must also appear before the magistrate within 21 days from the date of sending the declaration form to establish his/her identity and confirm the contents of the declaration.

According to Section 4, an aggrieved person, his/her family members or any other person related to him/her by blood, marriage or adoption may file a report. These provisions indicate that the legislation has been brought into force with a substandard presumption that all conversions are unlawful and hence, the need to regulate them arises.

Ironically, similar legislations which came into force earlier in seven other states of India did not extend their application to forced reconversions or Ghar wapasi ceremonies.

The unforgettable day in history when Baba Saheb Ambedkar renounced Hinduism on October 13, 1935, his gesture sent a message to the future generations that his personal freedom to renounce a particular faith and choose another would someday take a significant place in the constitution and will be declared a fundamental right. He faced severe opposition and even received death threats from the fundamentalists of those times.

In Annihilation of Caste, Ambedkar described the ideal society he imagined as a society built on liberty, equality and fraternity. In his words, “An ideal society should be mobile and full of channels of conveying a change taking place in one part to other parts. In an ideal society there should be many interests consciously communicated and shared. There should be varied and free points of contact with other modes of association. In other words there must be social endosmosis.”

Recent developments in Uttar Pradesh and other parts of the country indicate that we are far from the reach of the ideal society envisioned by constitutional makers.

(Tejaswi Ravinder is an Advocate practicing at the High Court of Telangana at Hyderabad.)

Credit: Matters India.

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