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Legality And Implementation Of Uttar Pradesh Prohibition Of Unlawful Conversion Of Religion Ordinance 2020 At National Level

In the modern world, it is very difficult to exclude religion from today's political structure. At the time of first war of independence, war was fought on the basis of religion and after 6 decades of war the country was divided on the basis of religion. Founding members of the constitution war were well known for the fact of hazardous outcomes and use of religious conflict in politics thus they made adequate measures and did not put secularism in the preamble of the constitution.

Uttar Pradesh government implements this ordinance and argues that this is the lawful ordinance. The ordinance was required by our society due to the exponential rise of the crime about unlawful conversion the person belonging to the particular community decoy or cajole a girl/woman belonging to a different religion or community for the sole purpose to convert the religion through fraud or allurement and also forceful religious conversions under the garb of love. Now our topic of discussion is how we should implement this law at the national level and the legal difficulties in it.
  • What are fundamental rights which are being considered in ordinance that may be challenged in the court of law?
  • Analysis of provisions of ordinances that are/may be challenged in the court of law and on grounds?

The ordinance was challenged or questioned by many persons that it violates personal laws of many religions but Ordinance doesn't infringe any personal law of any community.

Because no personal law suggests converting someone's religion forcefully. Ordinance doesn't specify or give hints that this ordinance was made for any particular religion. In light of recent event where there have been lot of murders, rape and other heinous acts in the name of conversion, it has become a matter of public interest.

Ordinance has rational nexus and it doesn't discriminate on religion and apply equally to every person of all faiths. It is not arbitrary in any manner. Ordinance is absolutely fine.

It is just to restore social order which is in constant flux as there has been a rise in the number of forceful conversions.

This ordinance is not violative of fundamental rights, the ordinance which was required by our society due to the exponential rise of the crime pertaining to unlawful conversion the person belonging to the particular community lure or entice a girl/women belonging to a different religion or community for the sole purpose to convert the religion by means of fraud or allurement and also forceful religious conversions under the garb of love.

There is direct nexus between the basis of classification of the ordinance and the object intended to be achieved therefore mere differentiation or inequality of treatment does not per se amount to discrimination within the inhibition of equal protection clause.

Should we implement this ordinance at the national level? What will be its consequences?
  1. Critical analysis of secularism and anti-conversion law
    1. Features of Indian Secularism
      Being a secular country, India doesn't have any law in a strict sense which prohibits states from creating laws on religion for the benefit of society. Secularism is a way of life in which people's rights and talents are not judged by their religious beliefs. Secularism has been the basis of most Western democracies since 1945. However, a number of countries have adopted secularism as a means to protect the rights of minorities against dominant majorities to create a more equal society In India, secularism translates to equal respect for all religions. The main idea of secularism in India is to treat equally all the religious ideologies and their followers without any discrimination.In India, secularism does not necessitate a complete freedom from religion; the two can interact within legally defined boundaries. It just requires the government to respect individuals of all faiths without discrimination.
    2. Existing Anti-Conversion Laws And Their Impact
      The first state which implemented anti-conversion law was Orissa in 1967 it was the orissa freedom of religion act, 1967 this act prohibits the conversion on the basis of fraud, inducement, minor or forcible conversion, and then an act was passed by Madhya Pradesh state legislature named Madhya Pradesh Dharm swatantrata adhiniyam and both acts were implemented in same year.

      In case of rev. Stainislaus vs state of Madhya Pradesh upheld the validity of both acts and said:
      right to propagate one's religion cannot impinge on the freedom of conscience of other citizens and it does not grant to convert another person to one's own religion and it gives grounds to many states to pass legislation on this matter.

      Arunachal Pradesh passed the legislature named Arunachal Pradesh freedom of religion act,1978. Though it is not enacted yet because the government had not framed rules for it.Chhattisgarh Government after separation from Madhya Pradesh retained anti conversion law and named it Chhattisgarh freedom of religion act, 1968.

      Gujarat legislature also passed the anti conversion law named freedom of religion act,2003 under the then CM Narendra modi. In 2018 uttarakhand also passed a law on this matter named Uttarakhand freedom of religion act 2018. Himachal Pradesh freedom of religion act, 2006 was enforced in 2017. The Jharkhand assembly also passed a law on this called the Jharkhand freedom of religion bill 2017. In 2020 the MP's government passed an ordinance with improvisations that wasn't available in before's legislation.
    3. Did The Ordinance's Provisions Violate The Idea Of Secularism?
      In case of a religious conversion there should be a change of heart and honest conviction in the tenets of the new religion in lieu of tenets of the original religion. Religion, faith or devotion are not easily interchangeable.

      In high court judgement before supreme court's decision in rev. Stanislaus vs State of Madhya Pradesh became the base for legislature for other states.

Morality under article 25(1) is basically about four components of the constitution : justice, liberty, equality, fraternity, which is in the preamble since it is enacted.

All four of them have symbolic meaning. Justice has its socio-economic and political dimensions and liberty shows in the matter of thought, expression ,belief, faith,worship, equality deals with status and opportunity amongst citizens and fraternity with dignity of human life. secularism was added with these four which gives people freedom of conscience to believe or not to believe. Conscience is based on the same provision of the constitution which is made for non-believer, as it is for worshipers.

The founding faith upon which the constitution is based is the belief that it is in the dignity of each individual that the pursuit of happiness is founded. No right is absolute hence, in any event, the State can always legislate a reasonable restriction to protect and effectuate a compelling State interest, like it may while restricting any other fundamental right. India is a secular nation but this doesn't mean that India is an atheist country. Secularism's mere meaning is to treat all religions equally and equality in no sense gives right to any religion to convert someone's religion.

Meaning of the phrase profess a religion under article 25 is not merely entering into a religious state or converting to a religion. A declaration that he is entering into this religion is not enough. Meaning of the word profess is given in Webster's dictionary:
to avow publicly, to make an open declare one's belief in. Meaning of the Oxford dictionary is also almost the same. If a public declaration is made by a person that he has ceased to belong to his old religion and has accepted another religion he will be taken as professing the other religion. In the face of such an open declaration it would be idle to enquire further as to whether the conversion to another religion was efficacious.

Article 25 talks about the rights of freedom of religion to every citizen. Aim of this right is to maintain secularism in India. This is also mentioned in article 14-Equality before law. Everyone has freedom to practice, propagate, and preach religion of their own choice. But this article doesn't give any right to convert someone's religion to their religion by any fraudulent means.

Conversion is only allowed in the constitution under practice of religion if someone wants to change it by change of faith. Article 25(2)clearly says that nothing can prevent states to create laws for the welfare of society. And this ordinance is to restore a social order which is always in flux with a number of constant conversions. And ordinance applies to everyone irrespective of their religions.

Article 44 is based on the concept that there is no necessary connection between religion and personal law in a civilised society. Article 25 guarantees religious freedom whereas Article 44 seeks to divest religion from social relations and personal law. Marriage, succession and like matters of a secular character cannot be brought within the guarantee enshrined under Articles 25, 26 and 27. Likewise this ordinance also tries to achieve the same.

Narasu Appa judgement that Personal laws are beyond the pale of part III of the Constitution cannot be struck down by the Supreme Court which was overruled in the Sabarimala judgement. Hence the State can make laws on personal laws if it is of public interest or morality. And this ordinance was the need of the society to stop these fraudulent mass conversions happening in the state.

As we earlier mentioned that some of the state laws were ultravirus and some were not enforced yet. Though many states had started to implement it newly by ordinances or laws from state legislature and they were trying to remove flaws that were before there. but implementation of different legislation in different states would create confusion and difficulties in the governance of states.

Many times bills were introduced in parliament but it couldn't pass due to lack of majority. In 1954,it was the first time when a bill was introduced for enactment of this kind of law at national level which is licensing of missionaries and the registration of conversion with government officials But it didn't get majority.

Then in 1960 a bill was proposed in Lok Sabha for checking the conversion of Hindus to non-Indian religions Then this was followed by a bill in 1979 which is the freedom of religion bill. Unfortunately, these bills were not passed in the house of people because of confrontation between the opposing parties.

Here are few suggestions that would help it better to implement it on national level:
  1. Implementing a national law with better legislation to avoid discriminatory provision With better language and law commission should research and remove misuse and conflicting provisions of the law.
Religious thoughts and beliefs are important factors for shaping up human conduct. Globally, one of the major crises is the war fought in the name of religion. Although there are few religions in which propagation as a means of conversion is central, this does not mean that this right is inalienable. Restrictions on such conversion rights can still be imposed under Article 25(1) of the Constitution. However, if a person willingly accepts his religious conversion, still, the state must ensure no social disruption due to his new religious identity.

The society fabric along with the person should be protected by the state as the state has the responsibility to respect and preserve individual rights. Though religious freedom is essential for the evolution of human intellect and personality, it should not be used as the only criterion for declaring the Acts illegal.

Thus this act is not violation of any law and allegations were baseless,act supports the equality clause and everyone's decisional autonomy under fundamental rights.

Award Winning Article Is Written By: Mr.Ankur Singh
Awarded certificate of Excellence
Authentication No: OT129316496874-20-1021

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