December 2, 2020 4:39:22 am
Section 3 of the Ordinance, considered as a model by many states governed by the BJP, prohibits any illegal conversion and conversion generally for marriage.
Shifting the burden of proof of a legal religious conversion from the convert to his partner; define “attractiveness” in general terms; regardless of the agency of the person being converted; different prison sentences according to gender; legitimizing state and third party meddling in choosing who an individual wishes to marry, Uttar Pradesh’s new “love jihad law” raises several questions of constitutional propriety.
The Uttar Pradesh Ordinance on the Prohibition of Illegal Conversion of Religion, 2020, enacted last week, in order to try to end conversion by illegal means, specifically prohibits any conversion by marriage, even if it is with consent. of the person, except when there is a prior sanction obtained from the state.
Section 3 of the Ordinance, considered as a model by many states governed by the BJP, prohibits any illegal conversion and conversion generally for marriage. Its Section 6 specifies that “any marriage that takes place for the sole purpose of illegal conversion” or “vice versa” will be “considered null and void” by a family court unless a prior sanction is received from the district to convert and marry. . magistrate.
“There is no legal basis for banning conversions, even just for marriage,” said Jayna Kothari, senior advocate and co-founder of the Center for Law and Policy Research, a Bengaluru-based legal advocacy group. “By involving the state, the police and the family of people seeking to marry, the law only attempts to stop all interreligious marriages.”
Apart from the person seeking conversion, even the person presiding over the conversion must submit a request in accordance with the law to the district magistrate. The magistrate, through the police, will investigate the “real intention”, the “purpose” and the “cause of the proposed religious conversion”.
The UP law has a broad definition of what it calls “attractiveness,” one of the illegal aspects of conversion. From the promise of “any gift”, “gratification” to “better lifestyle” and “divine or other displeasure,” the term encapsulates any expected benefit of conversion.
While “any gift” could include even non-material gifts like a religious text, the promise of a better lifestyle are future events that may or may not happen, but can still be used to declare an illegal conversion.
If the magistrate is not satisfied, then criminal action can be brought under Section 11 of the ordinance against the persons who “caused” the conversion. This includes those who committed the crime, failed to act and prevent the crime, and those who assist, instigate, advise or procure people to commit the crime.
However, Section 12 of the law places the burden of proving that an individual legally became the persons who “caused” or “facilitated” the conversion and not on the individual. This means that even if a woman, who has converted from one religion to another, says that she has consented to the conversion, this will not be enough. The individual’s partner, who is deemed to have “caused” the conversion, must demonstrate the true intention of the conversion.
This reverse burden of proof, legal experts say, undermines the ability of the individual to convert from one religion to another by ignoring their consent. The law also allows parents, siblings or any other person related to the converted person, by blood or marriage, to question the legality of the conversion.
“The right to convert to another religion is a fundamental right. This law strikes the heart, ”said Ashwini Obulesh, advocate for women’s and children’s rights and co-founder of the Dhwani Legal Trust, a non-profit legal aid society.
The law does not apply to inter-religious marriages under the Special Marriage Law, where both persons can retain their religious identities, but it only applies to inter-religious marriages in which the husband or wife seeks to convert to a different religion in order to marry on your own. laws.
The Special Marriage Law, which also requires a one-month notice to the state indicating intention to marry, is seen as problematic for couples seeking to marry against the wishes of the family or the community at large. During the notice period, the magistrate invites you to file objections to the proposed marriage, which could be challenging for couples.
Conversion and marriage through religious law is one of the legal routes that interfaith couples often take to avoid this month-long notice to the state, even at the risk of losing their rights under personal law, such as inheritance. However, the new law prohibits these marriages and introduces more restrictions to marry. “In the Special Marriage Law, the public documentation of the details of the future bride and groom and their display during the notification period is currently in the process of being challenged before the Supreme Court, as it is detrimental to the safety of the couple. This law goes a step further and requires the police to be satisfied with their intentions, ”Obulesh said.
The offense under the ordinance is not bail and recognizable, which means that an arrest can be made without a warrant. A minimum penalty of one year is prescribed that can be extended up to five years and repeat offenses can carry twice the maximum penalty. Men receive a higher punishment if they are found guilty of causing the conversion of a woman, a minor or a person belonging to the programmed caste or tribe, the minimum sentence is two years, which can be extended up to 10 years.
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