The U.P. government’s ordinance seeking the prevention of illegal conversion has several provisions that go against the Constitution and restricts the freedom of conscience. 

Objective of the ordinance

• The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 seeks to prevent “love jihad” in the state
• The ordinance makes it a criminal offence for a person to convert another by coercion, misrepresentation, fraud etc, which is unobjectionable.
• A marriage solemnised for the “sole purpose” of unlawfully converting the bride or the groom is required to be declared void by the competent court.
• There can be no objection to ordinance’s premise that converting somebody by fraud or misrepresentation is wrong.
• In fact, though the members of the Constituent Assembly included the right to “propagate” one’s religion they considered it a “rather obvious doctrine” that this would not include forcible conversions.
• However, the UP ordinance goes beyond this principle and does something quite strange.

Unconstitutional provisions and issues with the ordinance

1) Lack of clarity

• The ordinance makes it a criminal offence to convert a person by offering her an “allurement”.
• The term “allurement” is defined very broadly, to include even providing a gift to the person who is sought to be converted.
• The use of the words “or otherwise” in the definition of allurement is puzzling.
• The essential prerequisite of a criminal law is that it has to be precise.
• A person cannot be put behind bars for doing something that a penal law does not clearly and unequivocally prohibit.
• On this touchstone, the definition of “allurement” leaves much to be desired.

2) Reconversion to a person’s previous religion is not illegal

• It says that “reconversion” to a person’s previous religion is not illegal, even if it is vitiated by fraud, force, allurement, misrepresentation and so on.
• In other words, if a person converts from Religion A to Religion B of her own volition, and is then forced to reconvert back to Religion A against her will, this will not constitute “conversion” under the ordinance at all.

3) Unfairly treating all women in the same way

• Illegal conversion under the ordinance attracts a punishment of 1-5 years in prison.
• However, if the victim of the illegal conversion is a minor, a member of the Scheduled Castes or Scheduled Tribes or, strangely, a woman, the punishment is doubled — at 2-10 years behind bars.
• In other words, it does not matter who the woman is, if somebody converts her against her will, the punishment can go up to 10 years in prison.
• The ordinance unfairly paints all women with the same brush — assuming that all women are gullible, vulnerable and especially susceptible to illegal conversion.

4) Buden of proof

• The burden of proof in criminal cases is on the prosecution, and the presumption is that a person accused of committing an offence is innocent until proven guilty.
• The Uttar Pradesh ordinance turns this rule on its head.
• Every religious conversion is presumed to be illegal.
• The burden is on the person carrying out the conversion to prove that it is not illegal.
• The offence of illegal conversion is also “cognisable” and “non-bailable”, meaning that a police officer can arrest an accused without a warrant, and the accused may or may not be released on bail, at the discretion of the court.

Time to revisit the past judgement

• In Rev Stainislaus v State of Madhya Pradesh (1977), the Supreme Court held that the fundamental right to “propagate” religion does not include the right to convert a person to another religion.
• In that case, the court had upheld anti-conversion statutes enacted by the states of Orissa and Madhya Pradesh.

Conclusion

The ordinance puts an incredible chilling effect on the freedom of conscience and state must reconsider it.

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