“What objection can there be to Fraternity? I cannot imagine any. An ideal society should be mobile, should be full of channels for conveying a change taking place in one part to other parts. In an ideal society there should be many interests channels for 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. This is fraternity, which is only another name for democracy. Democracy is not merely a form of government. It is primarily a mode of associated living, of conjoint communicated experience. It is essentially an attitude of respect and reverence towards one’s fellow men.”
Dr. B. R. Ambedkar
The All India Lawyers Association for Justice strongly condemns the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, which is a communal, undemocratic law that has been brought about to destroy the core principles of liberty, equality and fraternity that form the basis of the Constitution.
Choosing which religion to follow, is a fundamental right of every person. We must recall the words of the Supreme Court in Shafin Jahan vs. Asokan K. M. and
Ors. [AIR 2018 SC 343] where it was held that: “… Faith of a person is intrinsic to his/her meaningful existence. To have the freedom of faith is essential to his/her autonomy; and it strengthens the core norms of the Constitution. Choosing a faith is the substratum of individuality and sans it, the right of choice becomes a shadow. It has to be remembered that the realization of a right is more important than the conferment of the right. Such actualization indeed ostracises any kind of societal notoriety and keeps at bay the patriarchal supremacy. It is so because the individualistic faith and expression of choice are fundamental for the fructification of the right. Thus, we would like to call it indispensable preliminary condition.”
Thus, one can convert as many times to as many religions as one chooses in their personal quest for meaning as per their wishes. Indeed the reasons for conversion is a personal choice and could be any reason as per the wish of the individual. It is this basic right that is being infringed upon by the Ordinance, which seeks to deny this fundamental right by deploying vague terminology of “easy money”, “allurement”, “better lifestyle” and “fraudulent means” “misrepresentation” are grounds for attack against persons who convert. Further, the Ordinance seeks to punish conversion made due to allurement, gift, gratification, easy money, material benefit, employment, free education in reputed school, better lifestyle or due to coercion, or fraudulent means. The punishment shall not be less than 1 year and may extend to 5 years imprisonment, along with a fine. This punishment in respect of a minor, woman and person belonging to SC/ST shall be imprisonment not less than 3 years but extendable to 10 years. It not only punishes the individual who actually does an act, but also punishes “every individual who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence”, “every individual who aids or abets another person in committing the offence” and
“any person who counsels, convinces or procures any other person to commit the offence.”
Appallingly, the Ordinance states that if any marriage is done for the sole purpose of conversion or vice versa by the man of one religion with the woman of another religion by either converting himself before or after marriage, or by “converting a woman” before or after marriage may be declared null and void by the Court. Special Marriage Act, 1954 is a civil law that provides for marriages of persons irrespective of faith or religion, and such provisions run completely contrary to the same. Such provisions are entirely paternalistic, undermining the autonomy of a woman to make free choices in marriage. It treats women as un-free agents, making a man liable for “converting a woman”. The law is a reflection of a patriarchal mindset that take away a woman’s agency in choosing her own partners in marriage, instead treating marriage as a state institution that requires control and supervision. It is yet another legal tool created to target the Muslim community in the backdrop of the bogey of love jihad that various BJP state governments have been raising. Most notably the Allahabad Division Bench in its judgment dated 11.11.2020 in Salamat Ansari & Others vs. State of U.P. & Others has held the previous single-judge bench decision that religious conversions only for the sake of marriage are unacceptable, as “bad in law”.
The Ordinance requires that persons who wish to voluntarily convert shall give a declaration to that extent two months in advance to the District Magistrate. Failure to do so will invite imprisonment of not less than 6 months but up to 3 years.
The draconian nature of the ordinance is also apparent from the manner it violates fundamental principles of criminal jurisprudence. It shifts the burden of proof and the person who “caused the conversion” is required to prove that the same was not effected through misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage on the person who has caused the conversion. It also provides that any organization or collective found in the breach of the said law will be held liable and their registration will be cancelled. All this for the sole reason of having converted one’s faith.
The ordinance is an attempt to break the core ideal of fraternity, which Dr. B. R. Ambedkar recognized as necessary for democracy itself. The Supreme Court in Navtej Singh Johar vs Union of India [AIR 2018 SC 4321] held that it is necessarynot only to respect relationships based on consent, but in fact “to foster a society where individuals find the ability for unhindered expression of the love that they experience towards their partner…Social institutions must be arranged in such a manner that individuals have the freedom to enter into relationships untrammelled by binary of sex and gender and receive the requisite institutional recognition to perfect their relationships.”
These promulgation of such offences, when there is no mischief or injured party speaks clearly of the communal mindset of the Uttar Pradesh Government and its blatant efforts to grossly violate the right to equality, right to live with dignity, freedom of conscience and right to practice, profess and propagate religion, and the right to privacy of citizens. These guarantees are fundamental rights inherent to every citizen of India, which are being hollowed out by its unlawful attempts. The Ordinance is an attack on the people, our C
It must also be recognized that without an urgent necessity for a law, issuing an Ordinance is a fraud on the Constitution and displays the scant regard that the BJP Government has for democracy.
AILAJ demands that the Uttar Pradesh Government immediately withdraw the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 and demands that steps be taken to ensure the protection of inter-caste and inter-faith couples.