The Uttar Pradesh government filed a counter affidavit in a writ petition challenging the UP prohibition of Unlawful Conversion of Religion Ordinance, 2020 filed by Advocate Saurabh Kumar, Ajit Singh Yadav and retired government servant, Anand Malviya.
The government has claimed that the Ordinance is aimed at preventing unlawful conversion by means of misrepresentation, force, undue influence, coercion, allurement; which is the language of the ordinance, as reported by LiveLaw. The affidavit states that the “Constitution of India abhors any form of forceful conversion particularly in matters of religion” and it invites secularism under protecting “citizens from any kind of unlawful or forceful conversion so that the liberty of thought, faith, belief and worship as well as equality of status stands safeguarded”.
The government clarifies that the ordinance nowhere makes mention of love jihad and there are other means of forceful conversions and not just confined to inter-faith marriages. The government also stated that the Allahabad High Court’s judgment in Salamat Ansari case needs to be reconsidered as it fails to deal with inter-fundamental right and intra-fundamental rights as well as the scope of liberty of an individual qua the societal interest, according to LiveLaw.
The government asserted that the ordinance has been passed in public interest since the community is living in fear psychosis, and is succumbing to the pressure of forceful conversion. The affidavit also asserted the positive obligation of the State to protect the rights of such class of individuals that were being encroached by non-State actors. It also pointed out that 8 other states have similar legislations and the legislations of Madhya Pradesh and Odisha were already upheld by the apex court in Rev. Stanislaus v. State of Madhya Pradesh, AIR 1977 SC 908. It is pertinent to note here that the MP and Odisha legislations back then did not hold conversion by marriage to be an offence.
The affidavit also gives illustrations on what is forceful conversion and what is not. So, a boy of a different faith studying in a Christian convent school and reciting prayers and reading the Bible does not amount to conversion. But, if a missionary group goes to a community where scheduled castes reside, and induce the members of the community saying that they will provide education free of cost if you start reading the Bible, this is an attempt to convert by allurement and is unlawful.
LiveLaw reported that the affidavit also argues that conversion of faith after marriage is not out of personal choice but due to intervention of personal law. “Such conversion is done out of compulsion as personal law treats such inter-religious marriage as invalid… Here again there is exercise of freedom of choice but there is loss of dignity and the conversion is not exercised account of compulsion due to personal law intervening”. The affidavit argues that only if a Hindu woman gives up her religion and accepts Islam will her marriage to a Muslim man be considered valid, and she will be eligible for inheritance, as per personal law and such conversion hence is construed as forceful.
The affidavit explains it, “This conversion will be against the choice of the individual who wants to remain in the society with the member of other religion but does not want to leave his faith.” Thus there is a conflict of interest, which is an issue addressed by means of the instant legislation wherein the inter fundamental rights of the individual are safeguarded.
Since the PIL states that the ordinance contravenes the pronouncement of a Division Bench of the High Court in the Salamat Ansari case, the affidavit states that this judgment cannot be good in law since the judgment does not take into consideration International Covenant on Civil and Political Rights, conflict of inter-fundamental rights and intra-fundamental rights, principles of constitutional morality, impact of personal laws and so on.
The affidavit also responded on the argument that there was no emergent need to pass the ordinance and that the state failed to show any unforeseen or urgent situation to justify the law. On this, the government stated that the satisfaction of the Governor cannot be questioned since it is subjective satisfaction and hence not justiciable. Further, it states that the ordinance is stemming from the constitutional scheme and as such cannot be questioned.
On January 6, 2021 the Supreme Court admitted the petition by Citizens for Justice and Peace and issued notice to Uttar Pradesh and Uttarakhand to file their responses within four weeks.
CJP’s plea has challenged the constitutional validity of the Uttar Pradesh and Uttarakhand’s anti-conversion laws raising issues of privacy, extra-Constitutional powers to police and non-state actors, violation of the non-negotiable tenets of secularism, equality and non-discrimination.