INTRODUCTION

In this world today, it's very difficult to exclude religion from day-to-day affairs. Looking at the
recent development in the ConstitutionConstitution of our country, one can certainly determine that
religion plays an important role in our political and social life. The first war of independence was
fought on the basis of religion, and decades later, the country was divided on the basis of religion.
With the passing of the 42nd amendment, the spirit of secularism which was always part and parcel
of the Constitution was formally inserted into its body.

The Uttar Pradesh Government recently passed the Uttar Pradesh Prohibition Of Unlawful
Conversion Of Religion Ordinance. As proposed by the government, the ordinance was required by
our society due to the exponential rise of the crime about unlawful conversion and also forceful
religious conversions under the garb of love. It prohibits conversion of religion through means, such
as force, misrepresentation, undue influence, and allurement, or fraud, or marriage. The ordinance
also prohibits a person from abetting, convincing, and conspiring to any such conversions. It assigns
the burden of proof of the lawfulness of religious conversion to the persons causing or facilitating
such conversions.

Its constitutional validity was challenged on the fact that it was passed when the state assembly was
not in session, whereas the ConstitutionConstitution says that ordinance can be passed when the
requirement for an immediate action arises, which was not needed in this case.

This ordinance has triggered several conflicts in the realm of constitutional law. The conflict is
between the State’s aim to implement this legislation and the fundamental right to privacy and to
freely marry an individual by choice as enshrined under Article 21 of the Constitution of India. This
research paper also touches upon the clear violation of the right to freely practice and profess
religion by the ordinance in question with little or no evidence of an unlawful conversion in the
state.1

Analysis it, the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance appears to
be similar to the anti-conversion laws that are already in existence in the other eight states. On a
closer look, though, it’s clear that this ordinance is much more damaging. The other states, perhaps
in the garb of modesty, had chosen to name their Acts, rather ironically, Freedom of Religion Acts;
this one abhors pretensions. Problems start with the preamble itself. Amongst other things, it seeks
to prohibit what it calls ‘unlawful conversion by marriage’. It may be noted that any reference to
marriage is not found in the Madhya Pradesh and Odisha Acts, the oldest legislation of this kind in
the country.

The emergence of love Jihad

1(Analysing the unlawful religious conversion ordinance, 2020 through the prism of proportionality 2021)
It is astonishing to see how a term like ‘Love Jihad’ has slipped into the vocabulary of so many
today. On the one hand, the judiciary of the country reminds us of the importance of personal
liberty and the freedom of conscience and on the other hand communal conspiracies like ‘Love
Jihad’ are created by the same people whom we so faithfully elected.The term is about a measured
campaign that uses love, seduction, and trickery to convert women from other religions mainly
Hinduism and Christianity into Islam.2 Not so long ago, in an order of the High Court, it was held
that “religious conversions, even when made solely for marriage, constituted a valid exercise of a
person’s liberties”.3 The order makes it clear that it is neither the state nor any other individual to
interfere with a person’s choice of partner.This leaves us with a very important question to be asked
:

Does Uttar Pradesh Prohibition of Unlawful Religious Conversion Ordinance,

2020 infringe upon the Right to marry and Right to privacy ?

Right to Marry
Under the Ordinance, a marriage is liable to be declared void if it was done for the sole purpose of
unlawful conversion, or vice-versa.
However, a marriage involving religious conversion is permitted if the conversion is undergone as
per the procedure laid down under the Ordinance.
• In the Hadiya case, it was ruled:
◦ “The right to marry a person of one’s choice is integral to Article 21 (right to life and
liberty) of the Constitution”.
◦ “The choice of a partner whether within or outside marriage lies within the exclusive
domain of each individual. Intimacies of marriage lie within a core zone of privacy,
which is inviolable”.
◦ The Supreme Court held that a person’s right to choose a religion and marry is an
intrinsic part of her meaningful existence. Neither the State nor “patriarchal
supremacy” can interfere in her decision.
• Allahabad High Court has said the right to live with a person of one’s choice is intrinsic to
the right to life and personal liberty irrespective of religion.
◦ “The Courts and the Constitutional Courts in particular are enjoined to uphold the
life and liberty of an individual guaranteed under Article 21 of the Constitution of
India. Right to live with a person of his/her choice irrespective of religion professed
by them, is intrinsic to right to life and personal liberty. Interference in a personal
relationship, would constitute a serious encroachment into the right to freedom of
choice of the two individuals”.

Right to privacy

2 A.P. Shah, ‘Love Jihad’ Ordinance Is Symbolic of Social Fabric Being Aggressively Changed: Justice A.P.
Shah, The Wire (April 12, 2021, 10:01 PM), https://thewire.in/law/love-jihad-ordinance-communal-rhetoric-
divisive-justice-ap-shah
3 Salamat Ansari v. State of U.P., 2020 SCC Online All 1382 : 2021 Cri LJ (NOC 39) 13 : (2020) 3 HLR
667 (DB)
 ▪ Through numerous decisions, the Courts have recognised and upheld the sanctity of
personal space which includes the decisions with respect to marriage and family life.
▪ Right to choose a partner irrespective of caste, creed or religion, is inhered under the right to
life and personal liberty, an integral part of the Fundamental Right under Article 21 of the
Constitution of India (Salamat Ansari v State of UP)4.
In the case of Lata Singh v State of U.P, the Supreme Court has very clearly laid down the law
regarding inter-faith and inter-religious marriages, and has held thus “This is a free and democratic
country, and once a person becomes a major he or she can marry whosoever he/she likes. If the
parents of the boy or girl do not approve of such inter-caste or inter-religious marriage the
maximum they can do is that they can cut-off social relations with the son or the daughter, but they
cannot give threats or commit or instigate acts of violence and cannot harass the person who
undergoes such inter-caste or inter-religious marriage.”

Section 8 of the Ordinance requires for submiting a declaration in advance to the District
Magistrate or Additional District Magistrate for conversion by free choice without coercion . This is
a grave constitutional concern. The right to privacy and freedom of conscience areb given in
Articles 21 and 25 of the Constitution. By asking for declaration, the State is potentially deploying
unreasonable procedures to intrude on inter-faith marriages. Inter-faith marriages face a lot of
surveillance, and in the presence of a requirement for declaration, the police can prevent the
happening of such marriages.

The ultimate violation to the right to privacy is clause 3 of Section 8, which allows the district
magistrate for an inquiry into the real intention and purpose of the conversion. As held by the
Supreme Court in Shafin Jahan v. Asokan K.M., the social values and the morals have their space
but are not above the constitutionally guaranteed freedom. To have the freedom to choose one’s
faith is essential to one’s autonomy, and such a guaranteed freedom strengthens the core norms of
the ConstitutionConstitution.

In democracy governed by the rule of law, police cannot be given the authority to violate the
privacy of individuals, in an attempt to know the reason behind exercising the freedom to
conscience and religion.Therefore, the clause 3 is in absolute violation to the fundamental rights of
the individuals as mentioned herein.

Conclusion

There is no data produced by the state government on any harm from inter-faith marriages, the
ordinance treats women as property and is prone to abuse and consequences — of intimidation,
bullying, and arbitrary arrests. It is evident that the motive of such a harsh law and provision of
stringent penal provisions at every step appears to be nothing but harassment.

4 Salamat Ansari v. State of U.P., 2020 SCC Online All 1382 : 2021 Cri LJ (NOC 39) 13 : (2020) 3 HLR
667 (DB)
The U.P. conversion bill not just exhibits the elements of vilifying all inter-faith marriages but
places unreasonable hindrances on consenting adults in exercising their personal choice of a partner,
violates their right to life, liberty, and dignity.

Based on the importance ad value given to individual liberty and privacy in the precedents
mentioned above, it is now clear that the right to marry a person of one’s choice, right to privacy are
fundamental rights that cannot be restricted disproportionately by the State and its instrumentalities.

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.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.

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