16 Dec 2020 9:29 AM GMT
The Governor of Uttar Pradesh has promulgated the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 with the aim of prohibiting 'unlawful conversion from one religion to another by misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage'. The haste with which the legislation has been passed and enforced directs...
The Governor of Uttar Pradesh has promulgated the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 with the aim of prohibiting 'unlawful conversion from one religion to another by misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage'.
The haste with which the legislation has been passed and enforced directs to the approach of the government towards minorities, which is stated by the Chief Minister in many statements. The Ordinance is against the provisions of the Constitution primarily on two aspects- the procedure which was adopted to enact the legislation and secondly, the manner in which it infringes the Right to Privacy mandated under Article 21 of the Constitution.
The legislation has been enacted as an Ordinance by the Governor of the State under the provisions of Article 213 of the Constitution which extends the legislative powers to the Executive. The power of Governor under Article 213 is defined as such-
If at any time, except when the Legislative Assembly of a State is in session, or where there is a Legislative Council in a State, except when both Houses of the Legislature are in session, the Governor is satisfied that circumstances exist which render it necessary for him to take immediate action, he may promulgate such Ordinances as the circumstances appear to him to require.
A bare reading of the Article provides that the Governor can exercise the power only when "circumstances exist which render it necessary to take immediate action". Thus, as a sine qua non the Governor has to be satisfied of the exigent situation, which is the sole ground for the exercise of this legislative function. In the absence of such an urgency, the exercise of legislative power by the Governor is unconstitutional. Such hasty passing of Ordinances without any reason requiring immediate action has been held to be illegal as it seems to be undertaken 'primarily to by-pass debate and discussion in the legislature' (RC Cooper v. Union of India), which is anti-democratic.
The compelling reason which was purported to be cited in the instant case was the rise in the cases of 'love jihad' or forced conversion for marriage. Moreover, the Chief Minister had cited the two decisions of single judges of High Court of Allahabad (Priyanshi @ Km. Shamren v. State of U.P. and Noor Jahan Begum @ Anjali Mishra vs. State of U.P.) which had held marriages after religious conversion to be void. No statistics, facts or figures have been cited by the government as an evidence of the compelling circumstances.
On the other hand, there is abundance of data against the proposition. The Special Investigation team appointed by the UP Police to gather data and information regarding the cases of 'love jihad' found no concrete proof as most of the cases of Hindu-Muslim marriages turned out to be consensual. The women in all such cases had married persons of different religion out of their own free will. Further, the Division Bench of the High Court of Allahabad decried the two aforementioned cases and held them to be "not good laws" under the Constitution (SalamatAnsari v State of UP).
In the light of these factors, no circumstances existed before the government which required the immediate action of promulgating an Ordinance by-passing the regular prescribed procedure of law making through the Parliament. This subject definitely calls for a thorough debate and analysis by expert committees before being passed as the law of the land. The process of enacting this legislation containing such stringent penal provisions is an anathema and is purely an act making mockery of the Constitution.
Complete negation of Privacy Rights
Apart from the procedural irregularities, the legislation completely undermines the Constitutional principles and rights ensured thereunder. Private life of an individual and the freedom to take decisions for the private life have been held to be inviolable fundamental right of every individual. Through numerous decisions, the Courts have recognised and upheld the sanctity of personal space which includes the decisions with respect to marriage and family life. Right to choose a partner irrespective of caste, creed or religion, is inhered under right to life and personal liberty, an integral part of the Fundamental Right under Article 21 of the Constitution of India (Salamat Ansari v State of UP).
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In the case of Lata Singh v State of U.P, the Supreme Court has very clearly laid down the law regarding inter-faith and inter-religious marriages, and has held thus- "This is a free and democratic country, and once a person becomes a major he or she can marry whosoever he/she likes. If the parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the maximum they can do is that they can cut-off social relations with the son or the daughter, but they cannot give threats or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage."
While declaring the decisions on 'love jihad' by the single benches of High Court of Allahabad to be not good law, the Division Bench had held that "We do not see Priyanka Kharwar and Salamat as Hindu and Muslim, rather as two grown up individuals who out of their own free will and choice are living together peacefully and happily over a year. The Courts and the Constitutional Courts in particular are enjoined to uphold the life and liberty of an individual guaranteed under Article 21 of the Constitution of India. Right to live with a person of his/her choice irrespective of religion professed by them, is intrinsic to right to life and personal liberty. Interference in a personal relationship, would constitute a serious encroachment into the right to freedom of choice of the two individuals".
In the case of K.S. Puttaswamyv Union of India (famously known as the Right to Privacy judgment) Hon'ble Supreme Court held that-
"The destruction by the state of a sanctified personal space whether of the body or of the mind is violative of the guarantee against arbitrary state action. Privacy of the body entitles an individual to the integrity of the physical aspects of personhood. The intersection between one's mental integrity and privacy entitles the individual to freedom of thought, the freedom to believe in what is right, and the freedom of self-determination. When these guarantees intersect with gender, they create a private space which protects all those elements which are crucial to gender identity. The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. Above all, the privacy of the individual recognises an inviolable right to determine how freedom shall be exercised."
Unlawful infringement with this right has been held to be unconstitutional under the Right to Privacy judgment. The judgment has asserted that no law could interfere with the privacy rights of the people and enter into their private lives without any reasonable and justifiable reasons and no law would be held to be a good law if it attempts to do so without providing a procedure which is proportionate and which ensures a rational nexus between the objects and the means adopted to achieve them.
In order to determine this, the judgment developed a test and called it the 'Triple Test' comprising three elements of legality, need and proportionality to determine the correctness of the legislation on the touchstone of privacy rights. It has been held by the Court that – The action must be sanctioned by law; (ii) The proposed action must be necessary in a democratic society for a legitimate aim; (iii) The extent of such interference must be proportionate to the need for such interference; (iv) There must be procedural guarantees against abuse of such interference.
The present legislation fails miserably on all the three elements as it is neither legal, nor the government has been able to justify any legitimate state aim and the provisions of the Ordinance are not proportionate to the object and needs sought to be fulfilled by the law. It unjustly interferes with the personal rights of the individual and makes the acts declared by the Courts to be private (right to marry of one's own choice and right to conversion of religion) criminal by including provisions of imprisonment. The 'victims' under the Ordinance are rendered remedy less with no procedural safeguards against any form of abuse. Hence, the Ordinance negates the privacy rights prescribed under Article 21 of the Constitution.
Thus, the Ordinance is in absolute contradiction to privacy rights; is illegal, unjustified and against the principles of constitutionalism and it ought to be declared unconstitutional.
Views are personal.
(Author is a practicing Lawyer at the Supreme Court of India)