Indian secularism, one of the the founding tenets of her Constitution, was envisaged as a means to secure principled distance between the State and religion. Unlike strict neutrality, principled distance seeks to achieve a flexible balance between State intervention and abstention in religious affairs. The State discretion is an acknowledgement of historic and social differences between religions, that may contextually merit unequal treatment. In November 2020, the Indian state of Uttar Pradesh promulgated the Prohibition of Unlawful Conversion of Religion Ordinance (‘the Ordinance’). The Ordinance stipulates that all religious conversions must be scrutinised and certified by the State. This article contends that the Ordinance exemplifies religious nationalism, and infringes the right to dignity, privacy and choice of interfaith couples. It also reverses the spirit of principled distance through unfair infringement on the rights of individuals from minority religions.

Conversion – A Kafkaesque Process

The Ordinance posits an elaborate and unnecessarily convoluted pre and post-conversion procedures, before conversions are ‘confirmed’ by the State, essentialising a Kafkaesque futility. Per section 3 of the Ordinance, persons who wish to convert (and persons officiating their conversion) are required to give a declaration and a pre-conversion report to local Magistrates sixty days before converting. This shall be followed by a police investigation to ascertain the ‘real intention, purpose and cause’ of the proposed conversion under section 8(3) therein. Similarly, under section 9, within sixty days post conversion, individuals will be required to submit a declaration with personal details (and personally attest to the declaration before Magistrates). The declaration shall be displayed for public scrutiny and ubiquitous aggrieved persons can file objections.

Only after the conclusion of this tedious process, Magistrates will ‘confirm’ a conversion. Any conversion circumventing the stipulated process will be voided, and also rendered illegal, attracting penal consequences. Further, per section 7, police officers are empowered to arrest accused persons under the Criminal Procedure Code without orders from the Magistrate (since offences under the Ordinance are cognizable, and also non-bailable). In pursuant prosecutions, with a reverse burden of proof under section 12, persons “who caused the conversion” will have to prove compliance with the Ordinance “beyond reasonable doubt”.

Islamophobia and Patriarchy writ large

Although framed neutrally, the Ordinance comes in the background of anti-Muslim rhetoric in India. The Chief Minister of Uttar Pradesh publicly announced that the Ordinance seeks to curb ‘love-jihad’, a derogatory term used by Hindu nationalists to imply that Hindu-Muslim interfaith marriages are unions plotted to convert Hindu women to Islam. By corollary, per section 3 of the Ordinance, to obtain the State sanction, conversions have to be first, voluntary and initiated with informed consent, and second, not performed for the sole purpose of marriage. Thus, conversions performed for marital reasons, regardless of an informed consent, are prohibited. The Ordinance is a severe blow to the dignity and agency of interfaith couples, who may wish to convert prior to, or post marriage.

The Ordinance also confers legislative sanction to patriarchal presumptions of lack of agency in women. Section 6 of the Ordinance states that marriage performed for the sole purpose of conversion, or vice versa, such that a man converts himself/herself [sic], or by “converting the woman”, shall be voided by Family Courts or local Magistrates; this is in addition to criminal prosecution for unlawful conversion for marriage under Section 5 therein. The language of the Ordinance posits women as “objects” of conversions, who are forced to enter into interfaith unions by converting. The penal scheme of the Ordinance is a testimony to its patriarchy: under Section 5, in cases of conversions of women, the prescribed punishment period and fine is doubled.

Nationalism and patriotism in India have often derived legitimacy by imagining and creating ‘otherised’ communities, who are engaged through a powerplay of self-victimisation. The Ordinance exemplifies such politico-religious nationalism. Through conspiracy theories such as love-jihad, Muslims (more so than other religious minorities) are aggressively constructed as the outsiders who beguile and indoctrinate Hindu women. On the other hand, although the women are perceived as the bearers of national purity and honour, they are simultaneously considered incapable of exercising autonomy and agency. Thus, in a doubly whammy, the State’s Islamophobic and patriarchal nationalism vilifies Muslims and victimises her women.

Days before the promulgation of the Ordinance, upholding the union in an alleged case of forced interfaith marriage, a Division Bench of the Allahabad High Court observed through precedents, that once individuals achieve the age of majority, courts (and by extension, the State), cannot assume the role of “parens patriae”. It warned courts against acting as a “super guardian”, despite sentimental or egotistic appeals on the part of the parents. However, euphemised as State security, “macho culture” demands the patriarchal State’s intervention into the personal and intimate spheres of interfaith couples, especially Hindu-Muslim unions. Unsurprisingly, such ideological passions are impervious to constitutional entitlements of the individuals involved. These are explored below.

Denial of Autonomy in Personal Decisions

The Supreme Court of India has recounted on several occasions that marital decisions are personal and intimate, falling in an inviolable zone of personal liberty and autonomy. It has also noted that Article 25 of the Constitution implicitly guarantees the right to choose one’s faith. The right to replace one’s current religion is also an internationally recognised human right. Denying interfaith couples the right to convert on marriage violates the privacy of their marriage and cohabitation.

Given that the Ordinance outlaws marital conversions, interfaith couples in the state have to exclusively officiate their marriages under the Special Marriage Act of 1954 (‘SMA’), the only Indian marriage legislation that allows officiating inter-religious marriages. However, registration of marriage under the SMA requires intending couples to give a notice to the Marriage Officer 30 days before the ceremony. Such notices may be publicly inspected and objected to. Once objections are raised, Marriage Officers cannot immediately solemnise the marriage. Thus, the 30 day period exposes interfaith couples to public scrutiny, hostile family members and right-wing mobs, violating their privacy and personal autonomy. Further, even beyond the solemnisation of marriage, interfaith couples in India commonly face harassment and are subject to public censure and disapproval. Thus, converting at the time of marriage secures them a relatively undisturbed cohabitation post marriage. This Ordinance condemns interfaith couples to a legislative and societal invasion of their privacy and peaceful cohabitation, as testified by repeated instances of violence and harassment of such couples in the state of Uttar Pradesh, since the passing of the Ordinance.

Recently, in a welcome judgment, the Allahabad High Court recognised that procedures under the SMA violate fundamental rights of couples who choose to marry outside their personal laws. Pursuantly, it held that section 6 of SMA, which mandates publication and allows inspection of marriage notices, shall be read as optional in nature. Thus, couples may elect to keep their notices confidential. The provision is now in challenge before the Supreme Court.

Denial of Personal Law Entitlements

The Ordinance indirectly compels interfaith couples to marry under the SMA. Such couples can no longer choose to convert and officiate marriages under the respective personal laws of one of the partners. Surrounded with disturbing instances that manifest Islamophobia, Muslim interfaith marriages are more likely to be scrutinised. The Ordinance has given legislative backing to such forces. The pre-constitutional and brief Shariat Act quite liberally enables the Muslims to follow their customary practices for officiating their marriages. Imposing a secular marriage law on interfaith couples denies them the right to officiate marriage under the respective customs. Viewed in this light, the Ordinance shares roots with the broader project of a Uniform Civil Code for India, which has been touted as a means of diluting peculiar customs and practices of non-Hindu religious minorities.

Conclusion

The Ordinance essentialises birth religion and denies religious fluidity recognised under Article 25 of the Indian Constitution. It interferes with the marriages and marital lives of interfaith couples, violating their constitutional entitlement to dignity and privacy under Article 21. Finally, its Islamophobic impetus is likely to deny personal law entitlements to Muslims in India. Since its promulgation, several instances of targeted violence against Muslims have come to light. Predictably, the Ordinance has been abused to intervene in Hindu-Muslim interfaith marriages, and arrest Muslim men and their families. Recently, after one such arrest, the Uttar Pradesh Government admitted in its affidavit that no evidence of forced conversion was found upon investigation.

Cumulatively, the Ordinance turns the clock backwards on the progressive constitutional jurisprudence of the Supreme Court for the residents of Uttar Pradesh, and has strengthened institutional violence against Muslims and other communities. The threat of constitutional violations looms larger, as other state governments (Karnataka and Gujarat) are contemplating enacting local anti-conversion laws. The new laws will be in addition to Himachal Pradesh’s Freedom of Religion Act, 2019 and Madhya Pradesh’s Freedom to Religion Bill, 2020 (cleared by the state cabinet as an Ordinance) that similarly criminalise marital conversions. The simmering communal sentiment must be put off by voiding the Ordinance as ultra vires of the Indian Constitution, in the impending challenges in the Supreme Court and the Allahabad High Court.