The Madhya Pradesh government will follow two other states governed by the BJP: Uttar Pradesh and Himachal Pradesh – by passing a law against conversion that prohibits religious conversion solely for the purpose of marriage. The MP cabinet has approved the 2020 Freedom of Religion Bill as an ordinance.
Although a common feature of the three laws is the declaration of such marriages as “null and void” and the penalization of conversions made without the prior approval of the state, they differ in the amount of the prescribed punishment and in the allocation of the burden. Of the test. that a conversion is lawful. In addition, the MP law seeks to protect the rights of women in such marriages.
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The Public Ministry law requires a 60-day “declaration of intention to convert” to the district judge for the conversion to be valid, after which a couple of different religions can legally marry.
Uttar Pradesh’s Illegal Conversion of Religion Prohibition Ordinance of 2020, enacted in November, also requires a 60-day notice, but also requires the Magistrate to conduct a police investigation to determine the actual intent behind the conversion.
The Himachal Pradesh Religious Freedom Act 2019, which came into effect last week, requires a 30-day “declaration of intent to convert”.
Who can investigate
Section 4 of the Public Ministry law states that there cannot be an investigation by a police officer, except in the written complaint of the converted person or the person’s parents / siblings. Guardians of the converted person may file a complaint only with the permission of a court. The law of the Public Ministry also says that no police officer below the rank of deputy inspector can investigate a crime under the law.
Himachal law says that prosecution cannot be initiated without prior sanction from an officer not below the rank of a subdivisional magistrate.
UP law allows the same people allowed by MP law to file a complaint.
Burden of proof
The Public Ministry law imposes on the converted person the burden of proving that the conversion was carried out without coercion or illegality. Himachal law has a similar provision. The UP law goes further, placing this burden of proof on the people who “caused” or “facilitated” the conversion and not on the individual. Even in the police investigation, if the magistrate is not satisfied, criminal proceedings can be brought under article 11 of the ordinance against the persons who “caused” the conversion. This includes those who committed the crime; omitted to act and prevent crime; and people aided, instigated, advised or acquired to commit the crime.
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Maintenance and inheritance
While declaring “null and void” any marriage the husband or wife has become, even consensual, unless they have given prior notice to the state government, the new MP law seeks at the same time to protect the rights of the women and their child from the “null and void” marriage. By virtue of article 9, the woman whose marriage has been declared null and void by virtue of this legislation, and her children, shall have the right to alimony. However, the law does not provide a remedy to ensure that the marriage can be subsequently protected.
Neither the UP nor the Himachal law have such provisions.
Amount of punishment
The crime of illegal conversion under the laws of the three states is recognizable and non-bail, meaning that an arrest can be made without a warrant and bail is granted only at the discretion of the judge.
Under the law of the Public Ministry, a person can be sentenced to a prison term of between one and five years for converting or attempting to convert illegally. If the person converted is a woman, a minor, or a person belonging to a recognized caste or tribe (SC / ST), the sentence is two to ten years. It also provides for a prison sentence of three to ten years for concealing religion during marriage.
The UP law establishes a minimum punishment of one year, which can be extended up to five years, and recidivism can carry twice the maximum penalty. Men receive a higher sentence if they are found guilty of causing the conversion of a woman, a minor or a person belonging to an SC / TS, in which case the sentence is between two and ten years.
In Himachal law, a person can be sentenced to a prison term of one to five years for converting or attempting to convert illegally. If the person converted is a woman, a minor or a person belonging to a SC / ST, the penalty is two to seven years.
The previous laws
At least 10 states, including MP and Himachal Pradesh, already have laws against conversion. The key difference in the new laws is that they seek to criminalize conversions solely for the purpose of marriage.
The Public Ministry Ordinance repeals the Madhya Pradesh Religious Freedom Act of 1968. While this also penalizes forced conversion, the new law adds provisions related to conversion during marriage, maintenance rights, and reversal of the burden of the evidence by placing it on the accused.
Himachal passed its law in 2019, repealing the Himachal Pradesh Freedom of Religion Law, 2006. While the 2019 law has added provisions related to conversions for matrimonial purposes, the pre-declaration aspect before the district magistrate also existed in the 2006 law. Indeed, the Superior Court had annulled the provisions on prior notification as unconstitutional and in violation of the fundamental right to privacy.
In 2019, a report from the UP State Law Commission recommended a special law to address incidents of forced conversion. In a bill, submitted with the report, the Commission recommended criminalizing fraudulent conversions, including conversions solely for the purpose of marriage. The ordinance was subsequently enacted.
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