Marriage being used for unlawful conversion: UP

Marriage is increasingly being used as an instrument of coercion to convert individuals from one religion to another and also for fuelling terrorist activities, the Uttar Pradesh government has told the Allahabad high court while defending a contentious new anti-conversion law that, it claimed, will guarantee all individuals “an equal moral membership in the society”.

In an affidavit responding to a clutch of public interest litigations (PILs) challenging the 2021 UP Prohibition of Unlawful Conversion of Religion Act, the state government has emphasised that when the “marriage is one of the instruments being abused for unlawfully converting individuals”, the state cannot abdicate its responsibility to regulate the alliance of two adults.

“To love is to live better but the agency of an individual to love cannot be eroded by exercising undue influence on them and forcibly converting them to a different religion under the garb of a better lifestyle. The institution of marriage forms the bedrock of any individual’s most profound hopes and aspirations. To discount such an institution and use it as a soul instrumentals conversion goes against the very ideals of our constitution which is premised on the idea of individual autonomy,” maintained the affidavit.

Contesting the issues relating to possible breach of privacy of individuals by regulating something as personal as a marriage, the UP government said that while an individual’s agency and capacity to love may unequivocally fall within the sphere of privacy, “this does not mean that a welfare state should abdicate responsibility to ensure that such agency is not threatened by extraneous factors such as coercion, fraud etc which are very much contagious to the society and are a matter of great concern.”

According to the affidavit, the Act aims to ensure that the decision of an individual to convert to another religion is “theirs and theirs alone” since forcible conversions strike at the heart of personal autonomy and devalue the sense of identity and dignity of an individual.

The UP government passed the law, commonly referred to as the “love-jihad” law in February this year, following enacting the ordinance on the same subject in November 2020. The law prescribes a jail term up to 10 years and fine up to ₹50,000 for conversion under marriage, fraud, coercion or enticement.

The ordinance had come into force days after chief minister Yogi Adityanath promised to fight against “love jihad”, a term used by some right-wing groups to describe relationships between Muslim men and Hindu women.

Several activists and legal experts have argued that the law could be used to target Muslims and infringe on the fundamental rights to equality, freedom of religion, and life and personal liberty.

But the state, in its affidavit filed on Friday before a bench led by justice Munishwar Nath Bhandari, maintained that although the 2021 law is on unlawful conversion and marriage is simply incidental, there are first information reports (FIRs) as well as a report of the Uttar Pradesh anti-terrorism squad to demonstrate that the social fabric in the state is threatened by a spurt in forcible conversions.

The statistics submitted by the state showed a total of 79 prosecutions had been launched on charges of unlawful conversion between January 1, 2020 and July 6, 2021. The ATS report of August 2021 claimed that there is a syndicate running in UP to unlawfully convert men and women to Islam and hawala transactions were involved in funding such activities.

“There is a compelling state interest in preventing the disproportionate forcible conversions of women in the state. Forcible conversion strikes at the heart of personal autonomy and individual agency. This compelling state interest is also furthered when it is revealed that such conversions are being used as an instrument for terrorist activities and have been probed from a national security angle,” claimed the affidavit.

If the impact of the legislation is tested, the state contended, it would be found that the legislation has a direct impact on terrorists and terror organisations which have been probed by the state’s ATS.

“There is ample data in public record which shows that forcible conversions have in fact created fear- psychosis in the state which in turn has warranted the need for such a legislation...The impugned act seeks to restore the autonomy of all those individuals who have been forcefully and unlawfully converted from one religion to another. By restoring them with religion that they practice voluntarily and freely, then Act delivers on the promise of equal citizenship and equal moral membership,” stated the affidavit.

Through the impugned law, the government said, the state seeks to safeguard freedom of conscience in the interest of public order, health and constitutional morality by ensuring that an individual’s choice to marry and subsequently convert to another religion is an informed one.

Adding that the legislation of identical nature is in existence at least in eight other states including Madhya Pradesh, Gujarat, Uttarakhand and Haryana, the affidavit said that the law prescribes the “least restrictive measure” available with the state to prevent unlawful conversions, especially since the community interest must always prevail over the individual interest.

“There are no fetters which had been placed under the Act to take away the freedom of conscience of an individual and the individual is only required to follow the procedure prescribed under the law while exercising the liberty to change belief and faith to worship. This exercise is necessary as there has to be an inquiry at some stage and the law has been settled that the best inquiry in such kind of matters can be done at the level of the executive,” held the affidavit.

The UP government clarified that any voluntary conversions by an individual made out of their own free will not attract the provisions of the impugned act but the burden of proof as to whether a religious conversion was not affected from misrepresentation or fraud or coercion or by marriage has to be placed on the person who has caused the conversion.

“Conversion being one of the cases that might not usually get reported due to power asymmetry, for socio-cultural and institutional factors, devaluation of self-identity or general fear of societal backlash, the reverse onus clause is a solution that aids in coming to the rescue of the victim and punishing the accused,” said the affidavit.

It also defended the provision giving right to the family members under the law to register FIRs in such cases. “By reiterating an already codified law that the relatives have a power to file An FIR against such conversions, the impugned Act in fact ensures that every individual is granted an equal moral membership in the society and the diminished autonomy of the coerced individual it does not let them be a part of a relationship or a religion which they would not voluntarily choose,” underscored the state.

The high court is expected to take up the batch of matters on November 15 after the petitioners file their replies to the state government’s stand.