The Indian Constitution, in its autochthonous form, entrenches values of liberty, equality and dignity as foundational pillars on which democracy has thrived for decades. A pro-choice and pro-respect jurisprudence of the Indian constitutional courts has been a bulwark that has acted as a sentinel for teeming millions. The diversity, inclusion and pluralism has defined us and our culture since time immemorial. Uttar Pradesh's Prohibition of Unlawful Conversion of Religion Ordinance 2020 (referred to as 2020 Ordinance) raises some hard questions for us to answer; and these answers would go a long way in shaping our future identities – not only as a nation, but most importantly as a society, that we pass on to future generations.
The Allahabad High Court Judgment in Salamat Ansari vs State of UP (2020)
The Allahabad High Court, a few days back, annulled the charges against the petitioner under various provisions of the Indian Penal Code including the charges on abduction of Priyanka Kharwar (Alia), who converted and got married to Salamat. The relatives of Priyanka Kharwar (Alia) lodged the FIR against Salamat and his family. Salamat assailed the FIR before the High Court wherein, giving relief to him, the court grounded its decision in the constitutional values of dignity and choice of adult individuals to decide their life partners. However, interestingly, in para 17 of the judgment, the High Court refrained from commenting on the validity of conversion. A few days later, the Uttar Pradesh government notified the 2020 Ordinance, making conversions undertaken solely for marriage illegal. The anti-conversion law has a chequered history, and previously two such legislation enacted by the states of Madhya Pradesh and Odisha were unsuccessfully assailed before the Supreme Court.
Rev Stanislaus case (1977) and its implication on the present ordinance
The primary question that the Supreme Court was besieged with was to ascertain if the anti-conversion laws of Madhya Pradesh and Odisha were enacted under Entry I of List II that enables the state legislature to enact a law in view of ‘public order’. However, Rev. Stanislaus vehemently argued for the laws to be valid only if passed while exercising residuary power under Entry 97 of List I – a power that could be exercised only by Parliament and not state legislature.
The Supreme Court upheld both the laws that forbid conversion on the grounds of fraud, allurement or force on the pretext that involuntary conversion can cause public order upheaval, and therefore the justification behind the enactment of both the legislation could be grounded in Entry II List I. Now, the six new categories added to the UP anti-conversion legislation are: misrepresentation, coercion, abetment, conspiracy, marriage and convincing. The first four appear to be in the same category as those which were approved by the Supreme Court earlier and, possibly, could be argued as safeguarding public order in ways in which the top court conceived it in its 1977 judgment. The court appears to be guided by the principle that an involuntary conversion is ‘reprehensible to the conscience of the community’ and might stoke communal passion, and that may lead to a public order situation. But, conversion by marriage certainly appears to be the odd one out alongside convincing someone to get converted.
Conversion by marriage
The clause forbidding conversion by marriage leads to a couple of questions. Firstly, by a logical corollary of the 1977 judgment, can we say that if a 'voluntary conversion' can stoke communal discord, and create a potential public order situation, would the lawmakers be right in enacting this law under Entry I of List II? Secondly, does this law take away the liberty of individuals to decide their religion and partner? A law that feigns to safeguard public order without astute basis in evidence, especially when it purports to make inroads in personal liberties of choice and religion, might not sit well with the courts.
Convincing to convert
Can an individual be convinced to convert to a different religion? The present law answers this in a negative. In addition to categories such as fraud, coercion et al, the present ordinance forbids any person to convince any individual to convert. The terms such as fraud, misrepresentation, abetment, force, etc, have elements that overlap with criminal law jurisprudence due to the presence of criminal intent. However, the term ‘convince’ is preceded by an informed enquiry, debate and application of mind on conspectus of tenets, which are entirely divorced from any criminal intent, and further respects the agency of the individual to make decisions for oneself. The present law, by placing convincing under the same category as fraud, allurement, coercion, misrepresentation, force, abetment and conspiracy, not only undermines the agency of the individual but also acts paternalistic. For instance, if there is a satsang, and after listening to the kathavachak (the narrator), some people decide to convert to Hinduism, would the police book the kathavachak for having convinced those people to convert to Hinduism? If the answer to the preceding question is 'yes', then that clearly undermines the agency of individuals to decide for themselves. The founding principles that govern enactment of any criminal legislation demand the provisions of such law to be narrowly tailored and clear in their purport; otherwise the efficacy of such a law would be at stake.
Proviso to Section 3
The proviso to Section 3 immunes any reconversion from the clutches of the present law. In simple terms, if anyone is reconverting any individual by force, coercion, allurement, etc, then such a person shall be beyond the claws of the present law. This proviso by providing differential treatment to the class of people associated with conversion juxtaposed with those associated with re-conversion, without any reasonable classification, might find it hard to pass the muster offered by Article 14 of the Indian Constitution (equality clause).
The right of an individual to choose a partner and cohabit with the same partner – either with or without conversion – is a personal choice of the individual. The assumption of the State for such conversions and marriages to flair communal discord, and thereby creating a public order situation, is not supported by any data. If we learn to trust each other as a community and not as majority or minority, we might be close to finding answers to some of these difficult questions.