New Delhi: The illegal conversion law secures personal liberty of individuals, protects an “endangered community” that succumbs to pressure resulting in forceful conversion, and subscribes to global treaties that safeguard the freedom to choose one’s religion, according to the Yogi Adityanath government.
Justifying its ordinance promulgated on 27 November 2020 to prevent forced conversions, including inter-faith marriages, in an affidavit filed before the Allahabad High Court Thursday, the government said the law intends to “regulate” consent of two individuals with the objective to keep the interest of the “community and family safe” and as a consequence to maintain a balance in the society.
It was the “solemn duty of the state to ensure freedom is enjoyed and not curtailed or taken away at the whims of another individual by exercising any form of force”, said the affidavit, filed in response to a batch of petitions challenging the ordinance.
The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 criminalises unlawful conversion from one religion to another by misrepresentation, force, undue influence, coercion and allurement by any fraudulent means or by marriage.
The state said it had not employed the term “love jihad” as alleged by the petitioners and that the law was applicable to all forms of forceful conversion, and not just confined to inter-faith marriages.
“Community interest is on a much higher pedestal than agreement of two adult individuals to enter into a wedlock. Once two individuals enter into a wedlock but if there is a fear psychosis in the community then it is the community interest as compared to community thinking,” read the affidavit.
A bench led by Chief Justice Govind Mathur Thursday took the affidavit on record and fixed 15 January to hear the matter further. It, however, declined to adjourn the hearing sine dine on the request of the state government.
The administration had sought an indefinite adjournment of the matter in wake of the top court’s Wednesday order, issuing notices to various states, including Uttar Pradesh, on petitions challenging the anti-conversion laws in force.
The petitioners have submitted that the law impinges upon their fundamental rights and violates Article 14 (right to equality), 15 (prohibition of discrimination on grounds of religion, etc.), 21 (right to life) and 25 (freedom of conscience, etc) of the Constitution.
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‘Conversion compromises dignity of an individual’
Whenever an individual exercises the right of personal liberty and chooses to convert, it causes issues of complexities as the dignity of the individual gets compromised, the affidavit said.
Such an individual is not assured equality of status. “Thus what happens is that the individual while exercising the right of personal liberty loses his dignity and equality of status to the religion which he does not adopt but is trying to take benefit of some sort by being in the society of the member of the other religion,” the affidavit claimed.
An individual who does not change his religion but has only exercised the right of liberty or choice to be in association with a member of another religion will be deprived of the benefits until a conversion takes place. Such a conversion will be against the choice of an individual who wants to remain in the society with the member of another religion but does not want to leave his faith, the affidavit said.
It is this conflict of interest, which the law aims to address to safeguard the inter-fundamental right of an individual, the Yogi Adityanath government said.
“It has been well settled that the community interest will always prevail over the individual interest. The societal interest has been held in catena of decisions by the SC to be in public interest and wherever there is public interest involved, then the public interest will always be placed at a higher pedestal than the individual interest,” the affidavit submitted.
Advocate Shashwat Anand, appearing for a petitioner, told ThePrint that the UP government was trying to mislead the court. He said the affidavit failed to address the concerns of the petitioners who have challenged the law on the ground that it is vague and widely-worded, threatening to impinge personal liberty of individuals.
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UN council has taken note of forced conversion, says govt
The Yogi Adityanath government further stressed that fear psychosis spread in the community forces its members to succumb to the pressure of illegal conversion. Therefore, in such a scenario “microanalysis of individual interest” cannot be looked into.
“The legislation in question protects public interest and maintain public order and it is not community thinking but community interest which is being safeguarded by the promulgation of the instant ordinance,” it said, pointing to states that have already enforced identical laws.
Article 25 of the Constitution allows the right to practice, profess or propagate religion, but does not include a right to convert, as upheld by the Supreme Court, the state claimed.
Also, it added that it was the state’s duty under Article 51 to foster respect for international law treaties obligations. According to UP, the ordinance conforms to two UN resolutions adopted in 1966 and 1981, declaring that no one shall be subject to coercion which would impair his or her freedom to adopt a religion.
The government said UN reports recommend the state’s positive obligation to protect the rights of such class of individuals that were being encroached by non-state actors.
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‘Constitution abhors any form of forceful conversion’
The state doubted the competency of petitioners before the HC and advised the court against considering their “stunted thinking”.
It was misconceived to state that every religious conversion is treated as unlawful unless certified by the government, the affidavit said. Rather, the procedure prescribed in the law is regulatory in nature, a framework upheld by the Supreme Court.
Independent exercise or choice for conversion is not an offence under the law, which, the state claimed, aims to address the issue of use of terror to forcibly convert a person.
Quoting from the Preamble, the Yogi Adityanath government submitted that the Constitution abhors forceful conversion and it was the duty of a secular state to protect its citizens “from any kind of unlawful or forceful conversion so that liberty of thought, faith, belief and worship as well as equality of status stands safeguarded”.
Courts cannot examine vires of legislation, says govt
The UP government further questioned the court’s jurisdiction to examine the vires, or powers, of the ordinance, as it frowned upon orders given in cases filed by runaway couples.
On the HC making enquiry as to whether there have been lawful marriages or not, the state said such things should be left in the hands of the executive. It offered to place a verdict by the US Supreme Court in support of this contention.
The affidavit went on to describe the meaning of the term “religion”, but undertook to elaborate it further during arguments before the court.
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