The Anti-Terrorism Squad (ATS) of the UP Police was formed in 2007, following terrorists incidents (bomb blasts) in Lucknow, Faizabad, and Varanasi as a specialised unit to deal with terrorist activities in Uttar Pradesh.
The tenor of their activities has certainly changed since then; a week ago, the ATS has seen fit to apprehend Mohammad Umar Gautam and Mufti Kazi Jahangir Alam, two clerics from Delhi, accused of causing large scale religious conversions by allurement and inducements, allegedly with foreign/ISI funding. Now, the UP chief minister has issued a clarion call for provisions of the National Security Act, 1980 (NSA), which provides for preventive detention, to be invoked against the clerics.
Lines Blurred Between Propagating One's Religion & Breaking the Law
Even before considering whether the activities of the arrestees deserve the attention of the ATS, it is yet to be tested whether the offence alleged is an offence at all.
Article 25(1) of the Constitution guarantees the freedom to profess, practice, and (crucially) propagate one’s religion. This right is subject to public order, morality, health, and to the other provisions relating to fundamental rights. The line between propagating one’s religion within the confines of Article 25 and in derogation of it seems rather blurry, even when recourse is had to the judgment of the Supreme Court in Rev Stanislaus vs State of MP (1977) 1 SCC 677. In this case, a Constitution Bench upheld the MP Dharma Swatantrya Adhiniyam, 1968 and the Orissa Freedom of Religion Act, 1967, both of which prohibited conversion from one religion to another by use of force, allurement, or fraud, and made such forceful conversion punishable.
The Court held that Article 25(1) grants the right to transmit or spread one's religion by an exposition of its tenets but not the right to convert another person to one's own religion.
Further, the UP Prohibition of Unlawful Conversion of Religion Act 2021 is yet to be tested both in terms of applicability to various situations and on the touchstone of constitutionality. It may well be that the activities of the clerics and others since arrested do not classify as unlawful at all under extant law.
'Converting' Does Not Equal Terrorism
Terrorism, as described by the apex court in Madan Singh vs State of Bihar (2004) 4 SCC 622, is inextricably linked to violence and aside from physical harm, also causes psychological devastation on society as a whole. The act of providing conversion certificates, proselytising, facilitating, or inducing the religious conversions of a person – hypothetically even by force – reprehensible as they may seem to the state government, simply do not rise to the level of “terrorism” as the law understands it.
The clerics are alleged to have offered jobs, money, marriage to weaker sections of society as allurement to convert to Islam: If this conversion scam is indeed a bomb, perhaps the state should focus on assuring livelihoods to diffuse it, rather than deploying the ATS and threatening the imposition of the NSA.
The NSA provides for preventive detention by the State upon being satisfied that it is necessary to prevent a person from acting in any manner prejudicial to the security of the State or maintenance of public order or from acting in any manner prejudicial to the maintenance of supplies and services essential to the community. Though this is broadly worded, since the Act severely and pre-emptively encroaches on a person’s liberty, it must be construed narrowly and used only in exceptional situations.
It is settled law that preventive detention is not punitive but precautionary. In the present case, with the accused already arrested, the invocation of the NSA would indicate a fear on the part of the government that the grant of bail is likely.
The State would oppose any application for bail, and bail would not be granted by the courts if the prosecution is able to establish the real likelihood that the applicants may tamper with evidence or commit any unlawful activity upon their release. If bail is granted, the State can further challenge the order before a superior court. Indeed, it has been repeatedly held by the Supreme Court and by the Allahabad High Court that this would be the proper course of action.
Direction to Invoke NSA Betrays Govt's Motivations
The chief minister’s statement is also troubling since the State has shown its mind in the nascent stages of an investigation, before the investigating agency has brought a charge sheet. In such circumstances, the chances of fair investigation and fair prosecution are stymied at the outset. That the UP government has been zealous in its use of the NSA in cases that stoke religious sentiments of the majority seems evident from the many orders passed between 2018 and 2020 by the Allahabad High Court, quashing order of preventive detentions.
As per a report by The Indian Express, the high court ruled in 120 habeas corpus petitions during this period, in which detention orders passed under the NSA were under challenge. The HC held in favour of the detenue in as many as 94. A third of these 120 cases concerned alleged cow-slaughter (totalling 41) and 20 cases concerned communal incidents. The detention orders (all detaining Muslims) were set aside in all 20 of these cases, many of which involved violence, the use of weapons, and injury to a number of people.
The UP government (and indeed every state) must publish data as regards to the incidents of communal violence and the imposition of the NSA and other anti-terror laws; without this the perceived persecution of minority communities through differential application of laws, will continue unabated.
Proof of the State's Intolerance of Minorities?
The manner in which the State has chosen to pursue this alleged offence and the alleged offenders must be correlated with India’s worsening reputation (I say reputation and not record because government records are virtually absent in this regard) when it comes to protection of minorities and guaranteeing religious freedoms. The State’s actions and statements feed the impression of the majority that it is under a palpable threat from religious minorities, and grants impunity to communal prejudices.
The ATS has even issued a press release, making detailed reference to alleged disclosures given by Umar Gautam. At this stage, the only purpose this serves is to mould public opinion, given that such a disclosure of an accused while in custody has no evidentiary value.
That the State can induce paranoia and exploit it to the prejudice of a minority is neither a new phenomenon nor unique to India, yet we seem unable to recognise it and condemn it as a unified whole. The FIR itself reveals a preoccupation with the idea that if Hindus convert to Islam, there will be a fundamental change in the demographic of the country. It furthers mentions a design to destroy the unity, integrity, and sovereignty of the country.
Despite claiming 1,000 unlawful conversions by the accused, the FIR is registered on the complaint of the ATS itself, and only mentions reports by two families. Unfortunately, given the reality that the conversion law, though under challenge before the Allahabad High Court, is as yet in force, the UP Police may well be able to register and investigate such cases. Till then, perhaps we can take a cue from the Delhi High Court to note that “the foundations our nation stand on surer footing than to be likely to be shaken” by the alleged religious conversion of 1,000 people, none of whom have complained as yet.
(Tara Narula is a lawyer practicing independently across courts in Delhi. She is a member of the Women in Criminal Law Association.This is an opinion piece. The views expressed above are the author’s own. The Quint neither endorses nor is responsible for them.)
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