The decision of the Allahabad High Court in Salamat Ansari v. State of Uttar Pradesh has caused quite a stir. One look at the judgment and the ensuing applause from many quarters might lead one to believe that it has been able to project itself as one of the impediments to the (the UP Law). To get a sense of the situation, look at the same Court’s decision in Noor Jahan Begum @ Anjali Mishra v. State of U.P. (2014). While the petitioners, in this case, approached the court to seek refuge from police harassment, which was alleged to be the result of the woman’s family’s opposition to the inter-faith marriage, the Court ruled that the petitioners’ marriage was void. The Court decided this based on the fact that the religious conversion was done solely for the purpose of marrying.

As a result, the Court ruled that such conversions were not genuine or bona fide in the eyes of the law. The same ratio was used in Priyanshi @ Km. Shamren v. State of Uttar Pradesh.

Comprehending the Difference

One significant difference between these two cases and the most recent case is that the court was more inclined to investigate whether the couple seeking protection were freely consenting adults. Later, they reaffirmed the autonomy of individuals to choose their partners as a fundamental right. By examining the earlier decisions of the Supreme Court, one cannot help but notice that conversions performed solely to allow individuals to marry multiple times were disapproved of by the Court. The cases of Lily Thomas and Sarla Mudgal were resolved along these lines. The Stainislaus Case also outlaws conversion by coercion.

To determine this, one must investigate the possible ways in which the same can be abused/misused. While it is argued that the law’s intent is good, the UP law leaves a great deal of room for speculation and conjecture. This opens a can of worms, which, if not stopped in its tracks, could lead to more serious issues. Open-ended use of terms, without providing a reasonable connection or cause or criterion to evaluate the same, is one area in which the law falls short of one’s expectations; and more importantly, one might feel that such use could lead to its illegal application.

Though it may appear similar to the Himachal Pradesh Freedom of Religion Act, 2019 (the HP Law), this one is more regressive because it seeks to criminalize and eliminate conversion through fraud, misrepresentation, coercion, force, allurement, and mass conversion; and, most importantly, if marriage is the sole reason for such conversion. The HP law makes no mention of concepts such as conversion by marriage, allurement, or mass conversion. The UP Law also criminalizes the encouragement, persuasion, and conspiracy of such conversions. On the other hand, Ghar Wapsi is exempt from this rule! Ghar Wapsi, also known as Homecoming, is a popular concept among certain Hindu groups. It refers to a person’s reconversion of his previous religion.

Under different categories, the law prescribes imprisonment for up to 10 years and a fine of up to Rs.500,000, equating them to hardened criminals, whereas the HP Law prescribes imprisonment for up to 3 years and a fine of up to Rs.500,000. The HP Law requires 30 days’ notice prior to voluntarily converting to another religion; failure to do so is punishable by a fine of up to Rs. 1,000. By extending the notice period to two months and increasing the penalties, the UP Law made it more difficult for interfaith couples to get married.

Is the Anti-Conversion Law being misused?

Recent cases in Moradabad and Bijnor, Uttar Pradesh, demonstrate the potential for abuse of such laws. While the intention is to identify cases in which religious conversion is solely for the purposes of marriage, the UP law has not been able to clearly communicate its objectives, let alone provide a road map for identifying such cases! This, it is believed, places a greater responsibility on the judicial system, as the likelihood of its misuse is increased. The Supreme Court and the High Courts have always respected the liberty of a person who has reached majority age.

This is precisely where the Supreme Court must intervene and establish guidelines. There must be legal protection for consenting adult couples who wish to marry – anyone. The accent is right there — anybody! Instead of placing the burden of proof on the individual who ’caused’ the conversion, the prosecution should be responsible for establishing their guilt. In order to prevent police from having unchecked power, the law should require a warrant for such arrests; i.e., such offenses should be treated as non-cognizable offenses. The law’s definition of “allurement” is another ambiguous area that requires clarification. The Court should invalidate provisions that invalidate interfaith marriages because they violate Article 21 of the Constitution of India.

Given these observations, it is believed that this would unjustly interfere with the constitutional right of all individuals to marry the person of their choice. The UP legislation could also stifle the ideas conceived by the Special Marriage Act and, more importantly, the Constitution’s framers’ vision for a Uniform Civil Code. There must be an immediate intervention to ensure that laws along these lines are repealed, as forced conversion is already illegal and we do not need additional laws to exacerbate the assault on constitutionally protected rights. This is necessary to prevent other states from enacting similar legislation!

How is the Anti-Conversion Law implemented?

• US Commission on International Religious Freedom (USCIRF) reports for 2016 and 2018 indicate that there were very few arrests or prosecutions under the anti-conversion law. 
• It was observed, however, that these laws created a hostile and sometimes violent environment for religious minorities because they did not require proof of the accused’s guilt. 
• Due to these laws, religious minority leaders and followers faced intimidation and arrest. 
• Since the UP law was passed more than a month ago, 86 people have been charged in 16 cases alleging conversion for love or marriage among Hindus and Muslims. 54 individuals were arrested, including friends and relatives of the principal suspect.

Conclusion

The Uttar Pradesh Anti-Conversion Law has sparked a major debate and controversy across India. While supporters argue that the rule is important to avoid forced conversions and promote religious freedom, opponents argue that it breaches the constitutional right to religious freedom and could be used to target minority communities.

The states are authorized by the Constitution to enact laws regulating religious conversions and interfaith marriages. These laws, however, must be supported by data, evidence, and trends. Simultaneously, they must uphold the right to equality, the right to freedom and personal liberty, the right to life, and the right to privacy of the affected individuals with minimal interference from the state and society as a whole.

It remains to be seen how the law will be implemented and enforced, as well as if it will be upheld in court. Regardless of its fate, the Uttar Pradesh Anti-Conversion Law is an attempt at India’s persistent struggle to guarantee religious freedom while also preventing forced conversions.