UP: How Anti-conversion Law is Now More Hostile to Liberty and Religious Freedom

The strangest part about the amendment passed by Uttar Pradesh's assembly this year is that anyone can file an FIR.

The law “interferes with the intricacies of marriage including the right to choice of an individual,” observed the Gujarat High Court, in its order staying certain sections of the state's anti-conversion law.

(Photo: The Quint)

“The family, marriage, procreation and sexual orientation are all integral to the dignity of the individual. Above all, the privacy of the individual recognises an inviolable right to determine how freedom shall be exercised. An individual may perceive that the best form of expression is to remain silent. Silence postulates a realm of privacy.”

– Justice KS Puttaswamy v Union of India  

On 30 July, the Uttar Pradesh assembly passed the Uttar Pradesh Prohibition of Unlawful Conversion of Religion (Amendment) Bill, 2024, which effectively proposes to make the state's 'anti-conversion' law (Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021) more stringent, as it primarily proposes a maximum sentence of life imprisonment in cases of forced conversion, while the maximum sentence previously was only up to 10 years jail.  

In recent years, anti-conversion laws across the country aimed to regulate religious conversions, purportedly to prevent conversions achieved through coercion, misrepresentation, or undue influence, have sparked significant debate and controversy.

Under the Indian constitutional law, the right to freedom of religion, including the right to convert, is enshrined in Article 25. However, this right is not absolute and is subject to public order, morality, and health. The judiciary has consistently held that while the right to propagate one's religion is protected, forced conversions or those obtained through fraudulent means are not permissible.

The courts have, thus, sought to balance the individual's right to religious freedom with the state's interest in maintaining public order and preventing exploitation. This article will delve into the intricacies of the anti-conversion bill, examining its provisions, the constitutional framework governing religious conversions, and the interpretations and definitions provided by the courts.

The Amendments

Refer to the table below to understand how the 2024 amendments make the law even more stringent.

In addition to the above, the 2024 amendment bill proposes that threatening, attacking, marrying, promising to marry, conspiring, or trafficking a woman, minor, or anyone with the intent to convert will be classified as a serious crime, punishable by up to 20 years imprisonment or life imprisonment (remainder of accused's life).

The amendment has also added clause (5) sub-clause (2) of Section 5, which states that bail shall not be granted if a person is arrested under the law. It specifies that no one shall be granted bail unless the public prosecutor is heard and the court is satisfied that no offence is made out.

The strangest part of the amendment is about the filing of a First Information Report (FIR) because earlier, only the victim could file a complaint or FIR under the said Act, but now, it has been proposed that anyone can file a complaint or FIR. This gives wide powers to persons who want to transgress into someone’s personal sphere. In a nutshell, the following elements of the latest amendment to the Anti-Conversion law in Uttar Pradesh are concerning:

1. Increased penalties: The amendment has introduced harsher penalties, including imprisonment of up to twenty years or life.  

2. Stringent bail conditions: The bail conditions in the bill have been revised and have been made more stringent in nature, bringing it as an offence compared to special statutes like the UAPA and PMLA, where bail is not the rule generally.  

3. Anyone can file a complaint: Lastly, the provision that allows anyone to file a complaint against alleged conversions opens the door for misuse by communally charged organisations and mainly targets inter-faith marriages.

What are the Courts Doing About This?

At present the matters pertaining to the constitutional validity of the anti-conversion law is pending before the Supreme Court. The two main issues would be whether the anti-conversion laws violate the freedoms of religion and conscience under Article 25 and whether the anti-conversion laws restrict the rights to choice, privacy, personal liberty, marriage, and dignity given under Article 21. The table below reflects the current scenario of the petitions that have been filed before the Supreme Court challenging the anti-conversion law.

In 2018, the State of Uttarakhand introduced a law “to provide freedom of religion” specifically in instances of religious conversion by force, misrepresentation, undue influence, coercion, allurement or by any fraudulent means or by marriage. In 2020, Uttar Pradesh followed suit, enacting an ordinance that imposed similar restrictions. The laws punished unlawful religious conversion for the purpose of marriage. Two other States namely, Himachal Pradesh (2019) and Madhya Pradesh (2020) enacted similar anti-conversion laws. The laws contained provisions analogous to those of Uttarakhand and Uttar Pradesh. 

Hence, individuals have the autonomy to change their religion based on their personal belief systems, which is a fundamental aspect of religious freedom. Conversion achieved through coercion, force, or fraudulent means is not permissible. This aligns with the principles of personal freedom and human rights that underpin the Constitution.

The right to convert, in the context of the Constitution, pertains to the freedom of religion, which is protected under Articles 25 to 28 of the Constitution. If we begin with Article 25, then this article guarantees freedom of conscience and the right to profess, practice and propagate religion.

It also allows an individual to convert from one religion to another, which includes both the right to change one’s religion and the right to persuade others to convert, but needless to say, it is subject to public order, morality and health. Further, Article 26 of the Constitution allows religious denominations to manage their own affairs in matters of religion, including the right to establish and maintain institutions for religious and charitable purposes.

The Supreme Court has interpreted the right to convert as part of the fundamental right to freedom of religion and emphasised that while individuals can change their religion, it must be done voluntarily and without any coercion. In the case of Ashwini Kumar Upadhyay v Union of India, the Delhi High Court made a significant remark with respect to people's right under Article 25 of the Constitution to choose and profess a religion of their choice and the right to freely convert their religion. 

"(Religious) conversion is not prohibited in law. Every person has a right to choose and profess any religion of his/her choice. It is a Constitutional right. If someone is forced to convert, then it's [a] different issue but to convert is a person's prerogative," Justice Sanjeev Sachdeva observed.

The Supreme Court, in a number of judgments, poignantly held that if two adults decide to solemnise marriage, it is their personal choice which is integral to Article 21 of the Constitution of India. In Lata Singh v State of Uttar Pradesh and Ors. this rights of adults were duly recognised by the apex court.

When we talk about the constitutionality of the provisions of the act, one may refer to the case of Dr RB Lal and Ors v State of Uttar Pradesh, where the Allahabad High Court held that the provisions of the anti-conversion law do not appear to be glaringly unconstitutional or ex facie unconstitutional. When the same matter went to the Supreme Court, it expressed concern over the constitutionality of the provisions of the Act, and orally said that some of the provisions seem to be violative of Article 25.

Now, if we consider the case which involved a young woman named Hadiya (born Akhila Ashokan) from Kerala, who converted to Islam and married a Muslim man named Shafin Jahan. Hadiya's father, Asokan KM, challenged the marriage, alleging that his daughter was brainwashed and forced to convert to Islam, and that her marriage was a case of "love jihad" (a term used by some to describe an alleged campaign by Muslim men to convert Hindu women through marriage). 

When the matter reached the Kerala High Court in WP (Crl.) No. 297 of 2016, it said that the motivation behind her marriage was to traffic her outside the country and observed that Hadiya was “weak” and vulnerable to exploitation despite being an adult. When Hadiya filed a Special Leave Petition before the Supreme Court (Shafin Jahan v Asokan KM and Ors) the High Court’s observations were criticised and the apex court opined that the High Court had “erred by reflecting upon the social radicalisation” and the order was absolutely unnecessary.  

In a separate concurring opinion, Justice DY Chandrachud observed that “the schism between Hadiya and her father may be unfortunate. But it was no part of the jurisdiction of the High Court to decide what it considered to be a ‘just’ way of life or ‘correct’ course of living for Hadiya. She has absolute autonomy over her person. Hadiya appeared before the High Court and stated that she was not under illegal confinement. There was no warrant for the High Court to proceed further in the exercise of its jurisdiction under Article 226." 

We have seen in many cases that there are communally charged organisations that attempt to take the law into their own hands. In the case of Shakti Vahini v Union of India, the Supreme Court came down heavily on ‘Khap Panchyats’, stating that they cannot assume the character of the law implementing agency.

In another significant judgment, the Supreme Court in Laxmibai Chandaragi B and Anr v State of Karnataka and Ors said that educated young boys and girls are choosing their life partners which, in turn, is a departure from earlier norms via which caste and community play a major role.  The court further said that possibly, this is the way forward where caste and community tensions will be reduced.

“We are fortified in our view by earlier judicial pronouncements of this Court clearly elucidating that the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into wedlock and that their consent has to be piously given primacy. It is in that context it was further observed that the choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice. Such a right or choice is not expected to succumb to the concept of 'class honour' or 'group thinking',” the court observed.

Hence, it is clear that on the judicial front, the courts have recognised the right to choose one’s partner irrespective of caste or religion.

The Road Ahead

The recent amendments brought by the government in Uttar Pradesh to the existing law may not pass the constitutionality test. The provisions that make it more stringent to get bail are anti-liberty, especially in the light of recent judgments where the Supreme Court has categorically held that bail should be the rule. Reliance is placed on the decision of Jalaluddin Khan v Union of India, where the Supreme Court has said, "If the Courts start denying bail in deserving cases, it will be a violation of the rights guaranteed under Article 21 of our Constitution.” 

Let us hope that the Supreme Court considers how the anti-conversion laws in various states have made it harsher for individuals from different faiths to get married and how some provisions directly attack one’s private sphere. Needless to say, forced conversion is prohibited and the same should be penalised, but not at the cost of the privacy of those who are doing it out of their free will.

To conclude, we may refer to paragraph 14 of the Supreme Court’s judgment in Laxmibai Chandaragi B (Supra), where the court has cited the words of Dr BR Ambedkar from Annihilation of Caste:  

“I am convinced that the real remedy is inter-marriage. Fusion of blood can alone create the feeling of being kith and kin, and unless this feeling of kinship, of being kindred, becomes paramount, the separatist feeling—the feeling of being aliens—created by Caste will not vanish. Where society is already well-knit by other ties, marriage is an ordinary incident of life. But where society is cut asunder, marriage as a binding force becomes a matter of urgent necessity. The real remedy for breaking caste is inter-marriage. Nothing else will serve as the solvent of caste.”