Summary: This explainer has been written as a part of LAOT’s Legal Writing Mentorship Program, 2023, which details the developments on the challenges to the various anti-conversion bills in India.

Introduction

With the Karnataka government’s decision (in June, 2023) to reel back the anti-conversion bill, the anti-conversion legislations brought about by other states along with the Writ Petition on the constitutionality of these legislations come into light. Citizens for Justice and Peace v State of Uttar Pradesh is a case that examines the constitutionality of the Uttar Pradesh Prohibition of Unlawful Religious Conversion Ordinance, 2020 and the Uttarakhand Freedom of Religion Act, 2018. The Citizens for Justice and Peace (CJP) petition alleges unconstitutionality on the basis of violation of articles 21 and 25. The petition was started being heard on 16th January 2023 by a three-judge bench constituting Chief Justice D. Y. Chandrachud, Justices P. S. Narasimha and J. B. Pardiwala.

What do the Act and Ordinance say?

Both the Act and Ordinance introduce a very incommodious procedure for individuals intending to convert to another religion. Section 8 of both the laws require that such individuals file a declaration with the local District Magistrate. In Uttarakhand, the individual is required to do so a month ahead while in Uttar Pradesh, it is a period of sixty days in advance. Additionally, the person who heads and performs such a conversion is also required to file a declaration. Finally, in Uttar Pradesh, the converted individual is required to file a notice with the District Magistrate and appear in-person in front of the Magistrate post conversion within a prescribed time period.

Another key and essential feature of the laws are that they prescribe very stringent criminal punishment, Anyone who leads to an illegal conversion faces a sentence of 1 to 5 years in prison under section 5 of the Uttarakhand Act. If the convert is a woman, a minor, or a member of the SC/ST group, the sentence is increased to 2 to 7 years in prison. Similar to the Uttarakhand Act, the Uttar Pradesh Ordinance mandates 1–5 years in prison for illegal conversions and 3–10 years in prison for conversions involving women, minors, and SC/STs. Both of the aforementioned regulations mandate imprisonment for anyone who merely neglect to submit the necessary documentation for the State to record their conversion.

Finally, it is the “religion converter,” or the person who converts, who has the burden of proof for the conversion.

What are the key issues being raised by CJP?

Teesta Setalvad, secretary CJP, said “Such laws need to be challenged. Already the spectre of ‘love jehad’, an illusory concept, has caused unimaginable misery, led to violence and intimidation by the police and non-state actors. ‘Laws’ that impinge on privacy, freedoms, autonomy, and violate principles of equality and non-discrimination have no place in 21st century ‘free India’. More than anything else, they are anti-women as they discriminate against women, denying them all agency.”

CJP filed a Public Interest Litigation (PIL) under Article 32 of the Constitution seeking to repeal the Uttarakhand Freedom of Religion Act, 2018 and the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020. Article 32 of the Constitution instills the right to remedy within citizens of India by way of the Supreme Court. The two constitutional articles (and fundamental rights) in contention are articles 21 (protection of life and personal liberty) and 25 (freedom of conscience and free profession, practice and propagation of religion). The writ petition raises two important questions: whether the anti-conversion bill restricts the right to choice, privacy, personal liberty, marriage and dignity as given under Article 21, and whether it violates the right to freedom of conscience as given under Article 25.

Article 21 of the Constitution

The Statement of Object and Reasons of the Uttarakhand Freedom of Religion Act, 2018 mentions incidents where persons have married for the sole purpose of converting girls to their religion and increasing the strength of their community.  Although the Statement makes no mention of any particular religion, it seems to make allusions to a specific religion according to the writ. The Writ Petition further argues that this vilifies certain minority communities and violates fundamental freedoms such as Right to Non-discrimination. Equality and Equal Treatment by the State.

Additionally, it violates the right of adults to make their own choice by making State approval necessary for decisions in their personal life. In essence, it places a burden on the individual to justify decisions that are supposed to be limited to their private life for sanction by public authorities, which allows them to perpetrate systems of societal prejudice.

The Petition additionally argues that the Act and Ordinance violates the Right Against Discrimination as only residents of Uttar Pradesh and Uttarakhand are subjected to such legislations, and they are shaped by gender stereotypes that portray women to be lacking agency to choose their partner. It is to be noted that the punishment specified for the woman converting to the man’s religion is higher, further perpetuating gender biases.

Article 25 of the Constitution

Both the Act and the Ordinance violates the Right to Conscience as given under Article 25 as it targets a particular minority community according to the Writ Petition.

The term ‘Love Jihad’ has been used widely to refer to situations where a Muslim man is accused of seducing a Hindu woman to convert her to Islam. Chief Ministers from Uttarakhand and Uttar Pradesh have promised to bring about laws against ‘love-jihad’.

In the Writ Petition, the CJP has relied on Supreme Court judgment in the case of Shafin Jahan v. Asokan K.M. (2018) where it was ruled that the right to change religion is a fundamental right.

Additionally, the Writ Petition referred to cases such as Puttaswamy v. Union of India (2017), Shakti Vahini v. Union of India (2018) and Indian Young Lawyers Association v. State of Kerala (2019) to argue for the role of privacy, choice and religious beliefs in maintaining dignity.

Additional Considerations

Anyone who merely forgets to provide the required papers for the State to record their conversion is subject to imprisonment under both of the aforementioned statutes. Finally, the onus of proof for conversion rests on the “religion convertor,” or the convert.

The Preamble’s idea of fraternity is at odds with the Law and the Ordinance. India is a secular country that practices democracy. No person of one faith is given preference over another by the equality of citizenship. If this Act and this Ordinance are put into effect, it will be assumed that all other religious conversions are the result of coercion or deception.

The provisions of the Constitution and later laws, such as the Special Marriages Act of 1954, reflect B.R. Ambedkar’s views on the ills of caste, community, and gender discrimination. He advised inter-caste marriage as the solution to caste abolition and India’s transition to a caste-free, equality-driven society. These ideals and goals are defeated by laws like the one that is being challenged.

Analysis

The notion of “love jihad” and the legislative responses to it in India is a complex and sensitive issue that requires a nuanced examination. The presence of legislations targeting religious conversions in the context of “love jihad” raises questions about the underlying motives and intentions of these laws. While proponents of such laws argue that they are meant to protect women from coerced conversions, concerns about the potential misuse of these laws to curtail personal freedoms, particularly interfaith marriages, and to marginalize minority communities, arise.

The wide scope and cumbersome procedures outlined in these laws can  be seen as excessive and potentially disproportionate measures to address the specific issue of coerced conversions. This raises suspicion about whether the real objective is to control interfaith relationships and conversions more broadly. The laws might inadvertently infringe upon the individual’s right to choose their partner and their religion freely, which are a part of the Fundamental Rights. Any legislation should always be interpreted within the larger context of the society, politics, and demographics of a country. India, being a diverse and pluralistic society, has a complex history of interfaith relationships and various inter-cultural interactions.. Any legal framework should take into account this complexity and strive to strike a balance between protecting individual rights and addressing legitimate concerns.

The unease felt by individuals familiar with the political developments in India is a valid concern. The use and abuse of laws for political purposes can have far-reaching consequences beyond their stated intentions.

In conclusion, while the existence of cases involving coerced conversions in the name of marriage is not to be denied, the introduction of laws like the Act or Ordinance to address this issue requires careful scrutiny. A holistic understanding of these laws must consider their implications on personal freedoms, interfaith relationships, and the potential for misuse in a socio-political context. The goal should be to ensure the protection of individual rights while preventing any form of coercion or exploitation, without inadvertently undermining the fabric of a diverse and pluralistic society rights.

Status of the Petition

The Writ Petition is still pending before the court and it is currently unclear when the next hearing will be, however it is certain that the decision will have great ramifications for the implementation of constitutional law in the country.

Devi Nandana Baiju is a second-year law student at NALSAR University of Law, Hyderabad.

[Ed Note: This article has been edited by Utkarsh Mani Tripathi and published by Harshitha Adari from the Student Editorial Team]