There is no charge mentioned in the Ordinance implicating anyone in the name of “Love Jihad“, the State government has asserted while seeking the dismissal of the PIL challenging the constitutionality of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 before the Allahabad High Court.
The counter-affidavit filed through the Special Secretary to the UP-Home Department further highlights that the Ordinance only aims to prohibit any form of unlawful conversion actuated by misrepresentation, force, undue influence, coercion, allurement, other fraudulent means, and marriage.
During its submissions, the State has also urged the Allahabad High Court to reconsider its recent ruling in the case of Salamat Ansari & Others v. State of UP and Others. In the said case, the Court had quashed an FIR lodged over the marriage between a Hindu woman and a Muslim man while observing that the right of an individual to live with a person of his/her choice irrespective of religion is a fundamental right.
The State of UP, however, has now submitted that this decision does not deal with the question of “inter-fundamental rights” and “intra fundamental rights.”
Other highlights of the counter-affidavit
- The Constitution of India abhors any form of forceful conversion particularly in matters of religion. Being a secular State, it becomes the foremost duty of the State to protect its citizens from any kind of unlawful or forceful conversion so that the liberty of thought, faith, belief, and worship as well as equality of status stands safeguarded, thereby assuring the dignity of the individuals.
- The entry of a person to another religion in certain circumstances compromises the dignity of the individual when the individual is not assured an equality of status unless s/he converts. In such cases, the conversion would be against the choice of the individual. The relevant extract of the State’s counter, in this regard, reads:
“…the individual while exercising the right to 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.
In such situation the individual even though has not changed his religion but has only exercised the right of liberty/choice to be in association with member of other religion but is deprived of the benefit of the new religion will not be available unless and until a conversion takes place. This conversion will be against the choice of the individual who wants to remain in the society with the member of the other religion but does not want to leave his faith. Thus, there is a conflict of interest which is an issue addressed by means of the instant legislation wherein the inter fundamental right of the individual are safeguarded (sic).”
An illustration inserted in a later part of the affidavit speaks of the “forceful conversion” that a Hindu woman may have to undergo upon her marriage to a Muslim man because she would not be conferred the full status of a wife and be deprived of inheritance under personal Hindu laws if she does not convert to Islam.
One of the illustrations of forceful religious conversions provided in the counter.
- The Ordinance seeks to protect “inter fundamental rights“. The government defines these rights as are “rights of an individual vis-a-vis rights of the community.” The State adds thatit has been well-settled that the community interest will always prevail over the individual interest.
- When there is a fear psychosis spread, when the community itself is endangeredand succumbs to pressure resulting in forceful conversion, it becomes necessary to protect the interest of the community, the affidavit reads further. It adds that no microanalysis of the individual interest can be investigated.
- The legislation in question protects the public interest and maintain public orders. It is not community thinkingbut community interest that is being safeguarded.
- “Community interest is on a much higher pedestal than agreement of two adult individual who enter into wedlock (sic)“, the government goes on to contend. Community interest is synonymous with social interest, which is equivalent to the public interest, it is added.
“Under the circumstances, thinking of family or community is not the foundation but interest of the community and interest to keep the family safe and as a consequence the entire social fabric in balance position is the objective for which the consent of two adults individuals has to be regulated (sic)”, reads the affidavit further.
- This is not the first such legislation. There are laws in at least 8 Statespunishing forceful religious conversion i.e., in Odisha, Madhya, Pradesh, Arunachal Pradesh, Gujarat, Chhattisgarh, Jharkhand and Uttarakhand. A similar law was also promulgated in Rajasthan, the State adds.
- Neighbouring countries have also framed anti-conversion lawssuch as those in Nepal, Myanmar, Bhutan, Sri Lanka and Pakistan.
- The government has also questioned the petitioner’s reliance on the Shafin Jahan case e., the Hadiya case. It is countered that the right to change faith is not an issue at hand. Rather, the issue is to “forcibly create a terror and get a person converted(sic)“. The counter states further, “Fear psychosis or fraud were not issues that fell for consideration in Shafin Jahan’s case. How the petitioner is applying the ratio of Shafin Jahan case in the ordinance in question is beyond comprehension.“
- Referring to cases where the courts have been urged for police protection, leading to judges being constrained to make enquiries as to whether the marriage is lawful or not, the State adds that “these are things which have to be done and left in the hands of executive rather than in the hands of the Hon’ble Courts…”
- There is no provision in the ordinance aiming to control the sexuality of women, the State contends, refuting the petitioner’s submissions on this aspect. There are no fetters placed on the exercise of the free will of the women in the matter of selection of her life partners. The same is only being subjected to certain regulatory mechanisms to ensure the dignity of women, the State says.
- There is no discrimination on account of the Ordinance’s operation. People have reposed faith and are feeling safe after the legislation’s introduction,the affidavit states.
- Refuting certain other submissions made by the petitioner, the government adds that there is no charge mentioned in the ordinance implicating anyone in the name of “Love Jihad.”If the procedure under the Ordinance is followed, then there is no occasion of any person being falsely implicated.