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Mainstream, VOL LIX No 1, New Delhi, December 19, 2020

Thought of Conversion – A Sin or Grace . . . ? | Chittarvu Raghu

Saturday 19 December 2020

by Chittarvu Raghu

The Governor of Uttar Pradesh has promulgated an ordinance called as ‘The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020’. It has been promulgated to provide for the prohibition of unlawful conversion from one religion to another by misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage and for the matters connected therewith or incidental thereto.

The emphasis is on the prohibition of ‘unlawful conversion’ from one religion to another. The conversion is unlawful if it is due to allurement, coercion etc., and also by marriage. The first part relates to conversion dehors marriage and the second part relates to conversion solely due to marriage. The unlawful conversion is defined as any conversion not in accordance with law of the land. However, the ordinance is silent with regard to the nature of law governing conversion from one religion to another. It does not provide any explanation and contemplates that whoever involves in the said ‘unlawful conversion’ by others shall be punished with imprisonment which shall not be less than one year but which may extend to five years and also liable to pay a fine.

Though the punishment is one year to five years, the ordinance makes the offence cognizable and non-bailable and triable by the court of sessions. Generally, in criminal cases the burden of proof lies upon the prosecution but the ordinance imposes burden upon the person who has caused the conversion and where such conversion has facilitated by any person, on such other person. It also contemplates that any marriage which was done for sole purpose of unlawful conversion or vice-versa by man of one religion with the woman of other religion either by converting himself / herself before or after marriage or by converting the woman before or after marriage shall be declared void by family court or where the family court is not established, the court having jurisdiction to try such a case. Implying, if a marriage is done for sole purpose of unlawful conversion, the marriage is declared to be void. If in the course of criminal proceedings it is found that there is an unlawful conversion for the purpose of marriage, the same would be binding on the family or a civil court. There need not be any independent adjudication with regard to a declaration of any marriage as void as per any other law. Unlawful conversion does not have any explanation in the ordinance. Unless nexus is established between a marriage and unlawful conversion, Sec.6 of the ordinance which contemplates marriage to be declared as void by the courts is not applicable. The meaning of conversion by marriage is also not explained in the ordinance. The ordinance contemplates conversion by marriage per-se unlawful. Generally two persons belonging to different faiths can get married under the provisions of Special Marriage Act. However in some cases unless there is a conversion and both bride and bridegroom belong to the same faith the marriages would not be performed. Conversion would be a pre-requisite in such cases. It cannot be said that it is a conversion by marriage.

The ordinance contemplates that any person who intends to convert his or her religion has to make a declaration in a prescribed format before the District Magistrate and an enquiry would be conducted by the police with regard to ‘such an intention of a person to convert’. The report of the police would be a deciding factor as to whether a person can get converted into another religion or not. The report of the police would be a deciding factor for concluding as to whether the conversion is illegal and void. The ordinance also contemplates procedure for post-conversion. It states that a converted individual shall send a declaration to the District Magistrate and appear for twenty-one days thereafter before him till the objections if any received are decided by the District Magistrate. It also contemplates that if the procedure is not followed the conversion becomes illegal and void. The ordinance lays more emphasis on the police report for the purpose of conversion. Though it protects the persons from getting converted due to allurement, coercion, force etc., there is a scope for abusing the provisions by relying upon the police enquiry report. The ordinance is silent with regard to the action of the district magistrate vis-vis the police enquiry report. There is a requirement to re-look into the provisions of the ordinance for the purpose of incorporating necessary checks and balances instead of placing more reliance upon police enquiry report. Such enactments were made by other States earlier. Odessa was the first Indian state to pass such a law in the year 1967 against religious conversion. In the year 1968 Madhya Pradesh also enacted a similar law. Arunachal Pradesh enacted a similar law in the year 1979 and in 2002 Tamil Nadu passed The Tamil Nadu Prohibition of Forceful Conversion Act. The Apex Court upheld certain legislations when challenged. But the present ordinance incorporates a new concept of conversion by marriage.

The entire ordinance presumes that every religious conversion is illegal unless the procedure contemplated under the Act is followed. The word ‘love jihad’ has not been referred to in the ordinance and the reading of it shows that the same is applicable to all the religions. The word allurement has been defined widely which may ultimately be a playfield for the police during its enquiry. Article 25 of the constitution of India contemplates that all persons are equally entitled to freedom of conscience, the right freely to profess, practice and propagate religion. It means that the constitution guarantees the right to practice, propagate religion and in the process, a person may impress upon the other to get converted or get himself converted. The ordinance comes into play when such conversion occurs due to the factors such as allurement, coercion, force etc. It is in operative while exercising freedom of conscience. The question is whether the police are equipped sufficiently to conduct an enquiry into these aspects or not so as to come to a conclusion that the choice of conversion has been made freely without any other factors.

A mere thought of conversion to another religion cannot be made an offence unless it manifests into action. A close reading of the ordinance shows that if a person intends to convert, he has to make an application to a District Magistrate and the police would probe into his thought process. There would be a possibility of abuse of process and filing criminal cases against those persons who propagate their religious faith on the ground that they have instigated the thought of conversion in a person.

(Author: Chittarvu Raghu is Advocate at the High Court’s of Andhra Pradesh & Telangana )

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