(Un)Constitutionality of the U.P. Ordinance on Conversion: The Puttaswamy Judgment-II

I have discussed the Puttaswamy Judgment here and its impact on Right to Privacy and liberty. In this post, I will be analysing the controversial ordinance passed by the Uttar Pradesh Government in the light of the Puttaswamy judgment. Recently, the UP Government has passed an ordinance called the “UP Prohibition of unlawful conversion of Religion Ordinance, 2020”. This law has been given the colour of an ‘anti-conversion’ law.

“The Problem”: the Law

The law says that, in section 6, that “any marriage which was done for the sole purpose of unlawful conversion or vice versa” shall be void. This means that if someone converts his/her religion to marry the other person, then that marriage is null and void, even after both the adults have given their consent for the marriage. Through this law, the state is ‘regulating’ marriage and the conscience of the citizens as well (which is a fundamental right under 25 of the constitution). The state is deciding what is right or wrong for its citizens. This questions the whole legitimacy of the social contract between the citizens and the state – the question that how much the state can regulate? Can the state regulate the private affairs of an individual? A person’s conscience is the most private thing available to her – therefore – is the state regulating our mind and our conscience and can they do it? This ordinance, unfortunately so, does it.

Further, section 8 of the Act states that any person who wants to convert shall ask to declare the same before the magistrate (‘DM’) ‘sixty days’ before. Then, the DM shall conduct an enquiry with the help of police to know the “real intention” for conversion. Giving such unfettered discretion to the DM or the police will increase arbitrary denial of conversion/free conscience. The executive authorities are not judicially trained to determine the ‘intention’ of the person and hence, this will increase the vast amount of violation of constitutional provisions such as liberty and right to conscience of an individual. The social scientists and theorists will help us in understanding the mentality of the officers (and the society) when it comes to converting to a minority religion. Every citizen has a “right to convert”- by exercising their freedom of conscience- under Article 25 of the Constitution. When a person chooses to change his/her religion then that person uses her conscience and she knows what is right or wrong for her. Hence, this regulation of a persons’ conscience must be unconstitutional.

Forceful conversions must be stopped as it goes against the ‘human will and conscience’ but putting so many barriers between those conversions which are not forceful is sheer violation of the rights of an individual. Converting for the sole purpose of marriage is the choice of the individual and the choice made by an individual must not be constrained through various provisions of the law. Here the law has to function according to the social realities and the reality is that the people who convert their religions for marriage are usually those couples who are performing inter-faith marriages. There is already so much fear of social exclusion, honour killing and persecution by the families which makes it difficult for an individual to make his/her free choice. Those who have the will to make his ‘free choice’ are forced to face the law which puts a blockade on their free choice.

Puttaswamy Judgment and individual’s Right to Choose

A person has freedom of conscience as a fundamental right because it protects that person’s right from the disdain of the majority society and legislature. A person who is converting to a minority religion faces the grave dangers of discrimination, life and liberty for a simple reason that his to-be-belief does not accord with the mainstream. Further, converting to a particular religion is an intimate choice of an individual and displaying that on the notice board of the DM and ‘taking permission’ from the authorities violates the ‘right to take an intimate decision about oneself’.  

The law on anti-conversion can be defended only by the Supreme Court’s problematic judgment in Rev Stainislaus v State of Madhya Pradesh which is a 1977 ruling delivered by five judges of the Supreme Court. The Court in that judgment said, “What is freedom for one is freedom for the other in equal measure and there can, therefore, be no such thing as a fundamental right to convert any person to one’s religion.” This goes against the heart of the liberal constitutional idea. The judgment, in turns, misreads a person’s right to religion and freedom of conscience. In his three-volume book on Constitutional law, jurist Seervai argues that the “Supreme Court’s judgement is clearly wrong, is productive of the greatest public mischief and ought to be overruled.” Further, he argues, Chief Justice A N Ray “mistakenly believed that if A deliberately set out to convert B by propagating A’s religion, that would impinge on B’s “freedom of conscience”. But…the precise opposite is true: A’s propagation of his religion with a view to its being accepted by B gives an opportunity for B to exercise his free choice of a religion.

Even in the constituent assembly, KM Munshi commented on the word ‘propagation’ and said:

“So long as religion is religion, conversion by the free exercise of the conscience has to be recognised. The word ‘propagate’ in this clause is nothing very much out of the way as some people think, nor is it fraught with dangerous consequences.”

When we propagate our religion to someone with a free mind, we are trying to persuade that person and in the consequence of it, that person uses his conscience to exercise his free choice whether she wants to convert or not. Hence, the state cannot restrict a person’s free choice to convert or not convert and the Supreme Court’s judgment in Stainislaus is ought to be overruled.

Further, the nine-judge bench in the Puttaswamy case held that “Privacy recognises the autonomy of the individual and the right of every person to make essential choices which affect the course of life.” (¶113) When a consenting adult agrees to marry another consenting adult, what they do is make an essential ‘intimate’ choice about their life which is protected by the Right to Privacy (Article 21). Similarly, when a person converts, for whatsoever reason like marriage, then that person exercises her right of freedom of conscience (Article 25)and right to make an essential choice. After the Puttaswamy judgment, the five judges ruling in Stainislaus deserve to be overruled as it is seriously flawed in its approach and it fails to recognise a person’s right to make intimate choices.

Conclusion

The UP Ordinance of 2020 invades an individual’s freedoms and rights guaranteed by the Constitution. It goes against the heart of the Constitution. The state has no right in intruding into someone’s private life and the choices they make. In a constitutional democracy, the citizens must be left free to make their choices and they have autonomy over their conscience. Therefore, policing citizens over the matters of religion will badly hurt India’s secular fabric and citizens’ liberty and rights!

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