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Religious Conversion For Marriage Not Exercise Of Choice When It Is Due To Compulsion Of Personal Law: UP Govt Defends 'Love Jihad' Ordinance

Akshita Saxena
7 Jan 2021 12:35 PM GMT
Religious Conversion For Marriage Not Exercise Of Choice When It Is Due To Compulsion Of Personal Law: UP Govt Defends Love Jihad Ordinance
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The UP Government on Thursday filed a counter affidavit in response to a batch of PILs challenging its controversial Love-Jihad Ordinance. In its reply, the Government has claimed that the Ordinance is aimed at preventing any form of unlawful conversion actuated by elements of misrepresentation, force, undue influence, coercion, allurement, etc. "The Constitution of India abhors any...

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The UP Government on Thursday filed a counter affidavit in response to a batch of PILs challenging its controversial Love-Jihad Ordinance.

In its reply, the Government has claimed that the Ordinance is aimed at preventing any form of unlawful conversion actuated by elements of misrepresentation, force, undue influence, coercion, allurement, etc.

"The Constitution of India abhors any form of forceful conversion particularly in matters of religion. Being a secular State it becomes the foremost duty of the State to protect its citizens from any kind of unlawful or forceful conversion so that the liberty of thought, faith, belief and worship as well as equality of status stands safeguarded thereby assuring the dignity of the individuals," the Government submitted.

It clarified that a perusal of the entire ordinance discloses that nowhere the term "Love Jihad" has been employed. The Government claims that the Ordinance is equally applicable to all forms of forceful conversions and is not only confined to inter faith Marriages. Hence it cannot be said that the ordinance is promulgated in the name of 'Love Jihad'.

The Government has also stated that the recent Division Bench judgment of the High Court in the Salamat Ansari case needs to reconsidered as it has not dealt with the question relating to inter-fundamental right and intra-fundamental rights as it has also skipped the attention of the Hon'ble Division Bench as to what will be the scope of liberty of an individual qua the societal interest.

On December 18, 2020, a Chief Justice led Division Bench of the High Court issued notices on a batch of PILs challenging the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, and had asked the UP Government to file a counter affidavit by January 4.


Ordinance in Public Interest

It is asserted the impugned Ordinance is passed in public interest inasmuch as there is a fear psychosis spread in the community at large and the Community itself is endangered and succumbs to the pressure resulting in forceful conversion.

In such circumstances, it is submitted, becomes necessary that the interest of the community as a whole requires a protection and no microanalysis of individual interest can be looked into.

Inter alia, it is pointed out that eight other States in the country have similar legislations prohibiting forceful conversion of religion and the validity of two of the said legislations enacted by the Governments of Madhya Pradesh and Orissa has already been upheld by the Supreme Court in Rev. Stanislaus v. State of Madhya Pradesh, AIR 1977 SC 908.

Further, the Government has relied upon the recommendation made in the working committee reports of the United Nations Human Rights Council, where by taking note of forced conversions and how the violation of freedom of conscience by non-state actors was being perpetrated but on account of non-sufficient state machineries, it was stated that it is the positive obligation of the Stale to protect the rights of such class of individuals that were being encroached by non-State actors.

Illustrations of conversions by force/ by free will

The affidavit gives certain illustrations as to what is not a forceful conversion and what is a forceful conversion.

A case where there is no forceful conversion, the affidavit states:

"A Hindu boy or a Muslim Boy or Sikh Boy attends a convent school, recite the morning prayer in the school, reads certain scriptures from the Holy Bible and complete his education. The objective is to take education in the convent school run by the minority Christian establishment. Students of non-Christian religion believe in their own faith and there is no loss of equality of status or loss of dignity and at the same time they have a choice to Study in a particular institution. The student does not covert and there is no conversion as he has not started believing in Christian faith."

A case where there is forceful conversion, the affidavit states:

"Mr. X is a member of Scheduled Caste. A group of missionaries visit the colony (Basti) where he resides with other Scheduled Caste persons. These missionaries allure every Member in the colony (Basti) that we have a training school for Nursing and in case if you start believing in GOD and start reading Bible we will provide you Nurses Training Course free of cost and thereafter in the Hospital which is ran by a particular community you will be given job of a Nurse and ultimately you will be in service of GOD. Thereby you will be providing service to the community at large provided you believe in GOD and leave your faith as this faith only treats you as Scheduled Caste and looks down upon you. Being allured by such assurances and to be given a decent job the entire Scheduled Caste community of the colony (Basti) decides to convert themselves to that particular community and leave their faith. This amounts to forceful Conversion. Here there is no freedom of choice but the choice has been obtained by certain allurement and the community where (after conversion) they are being received still looks down upon them as a convert and there is no equality of status let alone freedom of conscience."

 Conversion after marriage not out of choice when it is due to personal law intervention.

The Government has cited conversion of faith by a Hindu person after marriage with a Muslim person as an example of forceful conversion arguing that conversion is not out of choice but due to intervention of personal law. Such conversion is done out of compulsion as personal law treats such inter-religious marriage as invalid.

"Here again there is exercise of freedom of choice but there is loss of dignity and the conversion is not exercised account of compulsion due to personal law intervening", the affidavit said.

The complete argument in that regard from the affidavit is extracted below :


The affidavit states :

"...wherever the personal law comes into play and the individual exercises the right of personal liberty but the personal law of the community to which the individual wants to enter upon by changing his (gender neutral) religion or religious practice causes issue of complexities as the dignity of the individual, gets compromised and the individual is not assured the equality of status. Thus what happens is that the individual while exercising the right of personal liberty loses his dignity and equality of status to the religion which he does not adopt but is trying to take benefit of some-sort by being in the society of the member of the other religion. In such situation the individual even though has not changed his religion but has only exercised the right of liberty/choice to be in association with member of other religion but is deprived of the benefits as the benefit of the new religion will not be available unless and until a conversion takes place This conversion will be against the choice of the individual who wants to remain in the society with the member of other religion but does not want to leave his faith. Thus there is a conflict of interest which is an issue addressed by means of the instant legislation wherein the inter fundamental right of the individual are safeguarded".

Salamat Ansari case requires reconsideration

The primary contention raised by the Petitioners in their PILs is that impugned Ordinance is violative of citizens' rights under Article 14 (Right to Equality), 15 (Prohibition of discrimination on grounds of religion, etc.), 21 (Right to life) and 25 (Freedom of conscience, etc.) of the Constitution, and antithetical to the authoritative pronouncement of a Division Bench of the High Court in the Salamat Ansari case.

"Right To Choose A Partner Of Choice A Fundamental Right": Allahabad High Court Says The Judgments Which Held "Conversion For The Purpose Of Marriage Only" Not Good Law

In this case, the High Court had held that "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."

In its affidavit, the UP Government has stated the decision in Salamt Ansari case cannot be considered to be a good law on the following counts:

  • Non-consideration of International Covenant on Civil and Political Rights
  • Non- consideration of conflict of inter-fundamental rights and intra-fundamental rights
  • Inter play of Article 21 with Article 25 of the Constitution of India and as to whether Article 21 in matters of religion is subject to Article 25
  • Non- consideration of principles of constitutional moraity
  • Non- consideration of the decisions rendered by the Constitution Benches of the Hon'ble Apex Court.
  • An incomplete analysis of the case of KS Puttaswamy Vs. Union of India reported in 2017 (10) SCC 1.
  • Impact of personal laws of parties.
  • Non-consideration of decisions of coordinate benches of this Hon'ble Court
  • Impact on public order

UP Ordinance Against Religious Conversions By Marriage Puts Freedom Of Choice & Dignity On Backseat : Justice Madan Lokur


Emergent need to introduce Ordinance under A. 213

Responding to another contention raised in the petitions- that there was no emergent ground to exercise the ordinance making power under Article 213 of the Constitution and that the State failed to show any unforeseen or urgent situation to justify the law, the Government submitted,

"It has been held by seven (7) Judges Constitution Bench of the Hon'ble Supreme Court that the satisfaction of the Governor has to be judged in the constitutional sense which is to be recorded as satisfaction under the constitutional sense. This necessarily implies that the satisfaction of the Hon'ble Governor is the subjective satisfaction of the Governor which is not justiciable.

So far as present Ordinance is concerned, as has been narrated herein above it is an aid of the constitutional scheme inasmuch as it provides for certain constitutional safeguards and the aim and objective of the ordinance is to prohibit forcible conversions and which makes any form of forcible conversions unlawful. Thus the present ordinance is stemming from the constitutional scheme and as such cannot be questioned as held by the Hon'ble Supreme Court"

UP Ordinance Criminalizing Religious Conversion By Marriage Is An Assault On Personal Liberty

Maintainability of PILs

The Government has also challenged the maintainability of the writ petitions, stating that in a public interest litigation, the High Courts cannot test the vires of a legislation.

"The law in this regard has been laid down by the Hon'ble Supreme Court in the matter of Guruvayoor Devaswom Managing Committee Vs. C.K. Rejan reported in 2003 (7) SCC Page-546. Under the circumstances the present public interest litigation challenging the vires of the ordinance is not maintainable," the affidavit stated.

Background

The writ petitioners include (i) Advocate Saurabh Kumar, represented by Advocates Devesh Saxena, Shashwat Anand and Vishesh Rajvanshi; (ii) Ajit Singh Yadav, represented by Advocate Ramesh Kumar; and (iii) retired government servant, Anand Malviya through Advocate Talha Abdul Rahman.

Related News

Recently, the High Court stayed the arrest of a man, Nadeem, booked by the UP Police under the said law.

Allahabad High Court Stays Arrest Of Man Booked Under UP Ordinance Against Religious Conversion For Marriage

A Division Bench comprising of Justices Pankaj Naqvi and Vivek Agarwal asked the UP Police to not take any coercive action against the accused in this case until the next date of hearing. The Court said,

"Victim is admittedly an adult who understands her well being. She as well as the petitioner have a fundamental right to privacy and being grown up adults who are aware of the consequences of their alleged relationship. "


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