PROPORTIONALITY ANALYSIS OF THE UNLAWFUL RELIGIOUS CONVERSION ORDINANCE, 2020

By Sabrina Bath-

Introduction

The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020[1] has sparked public outrage. Since many have deemed the Ordinance illegal on its face, others have commended it with overcoming the social and cultural concerns of the society at large. The main purpose of this ordinance is criminalising religious conversion for marriage. Several states like Madhya Pradesh and Himachal Pradesh have endorsed this ordinance and have also now acted in similar legislations. These contentious ordinances have sparked a slew of legal battles in the domain of constitutional law. The idea of proportionality has gained popularity around the world as this principle has been consistently used to determine challenges concerning fundamental rights' restrictions by many constitutional and human rights courts. A collection of norms known as ‘proportionality’ determines the required and proper requirements for the constitutionally permissible restriction of a constitutionally protected right by statute. However, it was not until the case of Modern Dental College and Research Centre v. State of Madhya Pradesh[2] that the theory was fully applied in terms of following a formal test by Indian courts. The article aims at examining the ordinance in terms of the proportionality doctrine. The same will be examined twofold- Privacy and religious conversion proportionality and Right to convert by marriage and religious conversion and proportionality.

A. Privacy and religious conversion proportionality

By compelling the parties involved to refrain from converting by way of marriage, the Ordinance pierces into the private concept of marriage. Even so, the main focus of this section will be on the issue of privacy. According to Section 8 of the Ordinance[3], a person is allowed to make a 60-day advance declaration stating that he or she is willing to convert their religion by their own free choice addressed to the District or Additional Magistrate. This gives rise to a serious constitutional issue as Article 21[4] and Article 25[5] respectively talk about the right to privacy and freedom of conscience. With the refusal in regards to Special Marriage Act’s[6] compulsory publication of notice inviting challenges to the same by the Allahabad High Court, the legal situation is correctly skewed in favor of privacy protection over societal interest. At present, interfaith marriages are being closely monitored and in the need of a declaration, the police can prohibit such marriages from being solemnized. Clause 3 of Section 8[7] is the supreme affront to the right of privacy as it gives the district magistrate the authority to investigate through the police to determine the real purpose and meaning for the conversion. In the case of Shafin Jahan v. Asokan K.M.[8], the apex court held that morality and social principles have their position, but they are not above the constitutionally guaranteed rights. Having the freedom to choose one’s religion is an important part of one’s liberty and also reinforces the Constitution's central principles. Contravening one's basic right to privacy to choose a spouse and convert to a religion of their own choice violates Article 21[9] and Article 25[10] of the Indian constitution. Thus, this article completely violates the right to privacy guaranteed under the Constitution. The Supreme Court issued directions to measure a violation of the right to privacy by proportionality in K.S. Puttuswamy v. Union of India[11]. There is no proof on record to support the goal of the state in making conversion by marriage illegal. To prove the same, the individual has to freely declare that the conversion is not of their own volition. The ordinance is therefore arbitrary and unconstitutional. Moreover, the methods used to achieve the illegal goal often intrude into people’s personal lives violating the right to privacy.



B. Right to convert by marriage and religious conversion and proportionality

According to Section 3 of the Ordinance[12], an individual is prohibited from converting or attempting to convert any other person from one to another religion either directly or indirectly by way of marriage, among other things. The section is poorly written and gives the administration broad authority to prevent couples from marrying consensually after voluntarily converting the religion. Besides this, when an individual violates section 3 of the ordinance[13], section 4[14] provides for an aggrieved individual or his/ her parents or any blood relation to file an FIR. It is argued that this not only put social morality ahead of constitutional morality as the apex court held in Navtej Singh Johar v. Union of India[15] but it even against its democratic findings in Shakti Vahini v. Union of India[16]. The apex court in the case of Shakti Vahini[17] held that when two adults chose their life partners consensually, it is a representation of the preference as provided under articles 19[18] and article 21[19]. Also, the consent of their families or groups is not required. This ordinance makes an exception to the very basic freedom that is disproportionate to the exercise of the right itself.

For a restriction on a constitutional right to be legally acceptable, there must be stricto sensu proportionality between the aim of attaining the reasonable intent and the societal significance of avoiding the constraint on the constitutional right[20]. Looking at an individual’s liberty enshrined in articles 19[21] and 21[22] there is and cannot be a valid state goal in prohibiting conversion by marriage. However, Indian courts have not effectively implemented the doctrine in determining the severity of an act that violates the rights concerning the need for defense of the right in the dispute.

Conclusion

Emphasizing the privacy and liberty of the individual in the rulings cited above, it has become evident that the right to marry out of one's own will and the right to privacy are the basic rights that cannot be arbitrarily limited by the state and its agents. In the case of Sofiya Sultana v. the State of UP[23], it reaffirms this view that inviting objections to marriage and publishing a notice under the Special Marriage Act, 1954[24] violates the very basic rights of privacy and liberty which also includes the right to choose the spouse out of one's own will without any interference from both the state or its agencies. Thus, it can be ascertained that this ordinance does not hold good to the prism of proportionality.


[1] The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 (UP Ordinance No. 21 of 2020). [2] Modern Dental College and Research Centre v. State of Madhya Pradesh, (2012) 4SCC 707. [3] The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, sec 8 (UP Ordinance No. 21 of 2020). [4] INDIA CONST. art 21. [5] INDIA CONST. art 25. [6] The Special Marriage Act, 1954, No. 43, Acts of Parliament, 1954 (India). [7] The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, sec 8, cl 3 (UP Ordinance No. 21 of 2020). [8] Shafin Jahan v. Asokan K.M, Criminal Appeal No. 366 of 2018. [9] Ibid, 4. [10] Ibid, 5. [11]K.S. Puttuswamy v. Union of India, (2017) 10 SCC 1. [12] The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, sec 3 (UP Ordinance No. 21 of 2020). [13] Ibid, 11. [14] The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, sec 4 (UP Ordinance No. 21 of 2020). [15] Navtej Singh Johar v. Union of India, (2018) 10 SCC 1. [16]Shakti Vahini v. Union of India,(2010), Writ Petition (Civil) No. 231 0f 2010. [17] Ibid, 15. [18] INDIA CONST. art 19 [19] Ibid, 4. [20] Modern Dental College v. State of Madhya Pradesh, (2016) 7 SCC 353. [21]Ibid, 17. [22]Ibid, 4. [23] Sofiya Sultana v. the State of UP, (2006) 5SCC 475. [24] The Special Marriage Act, 1954, No. 43, Acts of Parliament, 1954 (India).



Author- Sabrina Bath

LLM-II

Symbiosis Law School, Pune

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