Two ordinances have been promulgated in the span of two months which attempt to curb instances of forced religious conversion, with a specific focus on curtailing forced religious conversion for the purpose of marriage.
The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance (“UP Ordinance”)1 was promulgated in Uttar Pradesh in November 2020 and the Ordinance has attracted widespread attention. The purpose of the Ordinance is to prohibit unlawful conversion from one religion to another by misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage2 and for the matters connected there with or incidental there to. Any aggrieved person, his relative, by blood or marriage or adoption may lodge a complaint if there is a case of conversion as prohibited by the Ordinance3. The Ordinance also prohibits a marriage being conducted for the sole purpose of unlawful conversion or vice-versa by the man of one religion with the woman of another religion, either by converting himself/herself before or after marriage or converting the woman either before or after the marriage and vests the power with the concerned Family Court or any court of competent jurisdiction to declare such a marriage to be void if such a petition is presented4. In the event that a person wishes to convert to another religion, that person will have to provide a declaration to the concerned authority stating that the conversion is being done as per his/her consent, free from any force, coercion, undue influence and the “religious converter” shall also give such a notice5. There after, upon conversion, the person will have to send another declaration to the concerned authority and the same is displayed on a notice board until confirmation of the conversion6. Contravention of any provision of the ordinance attracts a punishment which shall be for a period of atleast one year and may extend upto 5 years and shall also attract a fine that can extend upto Rs.15,0007.The Ordinance and its provisions can be insidious and dangerous if misused by the authorities. The Ordinance is presently under challenge before the Hon’ble Supreme Court of India (“Supreme Court”).
There after, the Madhya Pradesh Freedom of Religion Ordinance, 2020 (“MP Ordinance”) was promulgated in January 2021 and the Ordinance has already been challenged before the Madhya Pradesh High Court. The MP Ordinance is also based on similar provisions as per the UP Ordinance, with certain difference regarding the quantum of punishment, etc.
Swift steps have already been taken by the authorities to implement the provisions of the UP and MP Ordinance. Under the MP Ordinance, around 23 complaints have been registered so far.8 Under the UP Ordinance, the first arrest was of Owais Ahmad in Bareilly who was arrested based on a complaint filed by a woman’s father on the grounds that he was allegedly stalking, threatening and attempting to convert her to Islam9. Owais Ahmad and the woman had earlier attempted to shift to Mumbai but were stopped midway by the police who were trying to trace them since the woman’s father has filed a kidnapping complaint, which he later withdrew. However, the woman was married to another man and does not have any connection to Owais Ahmad, as stated by him10. On 04.12.2020, the Uttar Pradesh police officers attempted to stop ceremonies of an inter-faith marriage despite the fact that the parties to the marriage and the parties’ parents had given their consent for the marriage and were present during the ceremony, notwithstanding the fact that there was no incident of conversion11. Further, the first woman who has been detained under the UP Ordinance suffered a miscarriage while in detention; she converted to Islam from Hinduism in order to marry her husband and her husband has also been detained12. In Kushinagar, Uttar Pradesh, the police authorities arrested a man under the UP Ordinance but released him after finding out that both the parties belonged to the same religion so therefore no case of conversion was made out13. Further, on 18.12.2020, the Allahabad High Court, in a writ petition titled Nadeem v State of Up and Ors.14 filed to quash an FIR lodged against the Petitioner under Section 3 and 515 of the UP Ordinance, has directed that no coercive actions be taken against the petitioner until the next date of listing. These are just a few examples, amongst several others, in the manner in which the authorities are acting upon the UP Ordinance.
While the UP and MP Ordinance has caused much discussion, what is less known is that various anti-conversion laws exist in other states. Presently, anti-conversion laws exist in the states of Orissa, Himachal Pradesh, Arunachal Pradesh, Gujarat. States such as Tamil Nadu, Rajasthan, Chhattisgarh attempted to implement anti-conversion laws in vain. Haryana and Rajasthan are attempting to introduce and implement similar anti-conversion laws in these states.
Anti-Religious Conversion Laws and Legal Precedents
Even prior to the enactment of the UP Ordinance, authorities have been swift to register FIRs against married couples who belonging to different religious and but where in one partner has converted to the religion of the other. Further, authorities have sometimes arrested these individuals, on the assumption of forced religious conversion. In such instances, various Courts have protected the rights and liberties of these individuals, have granted such individuals protection from arrest and have laid down law that protect the rights of those individuals who wish to marry outside of their faith. While the authorities have adopted an attitude of in fantilisation of women and often encroach upon the private spaces of two adults, who consent to marry one another and live together, Courts have adopted a liberal approach in curbing the puritanical attitude of these authorities.
The UP Ordinance has been erroneously justified by using the ratio and observations made by the Hon’ble Allahabad High Court (“Allahabad High Court”) in the cases of Noor Jahan Begum @ Anjali Mishra & Another16 and Priyanshi @ Km Shamreen And Another versus State Of U.P. & Others17. However, the rulings in these two cases, which was made by a single bench, has been overturned in the case of Salamat Ansari & Ors. V State of Uttar Pradesh & Ors as not laying down good law and therefore these two cases cannot be used as the basis of justifying any anti-religious conversion laws. Further, the Supreme Court18 has also dismissed a petition and refused to set aside the order of the Allahabad High Court in the Salamt Ansari case.
The Allahabad High Court adopted a liberal approach in the case of Salamat Ansari & Ors. V State of Uttar Pradesh & Ors.19. The Court stated that the two petitioners, who filed the writ petition quashing the FIRs lodged against them and seeking protection from arrest, cannot be viewed as Hindu and Muslim but as two grown up individuals living together peacefully and happily out of their own free will and choice and that right to live with a person of one’s choice irrespective of religion is intrinsic to right to life and personal liberty under Article 21 of the Constitution of India (“Constitution”). Further, the Court held that interference in a personal relationship would constitute a serious encroachment into the right to freedom of choice of the two individuals, to choose a partner and right to live with dignity as enshrined in Article 21 of the Constitution of India. The Court there after quashed the baseless FIRs registered against the petitioners which were filed as a consequence of Petitioner No. 2 renouncing Hinduism, converting to Islam religion and marrying Petitioner No.1 however the Court did not comment on the validity of the marriage and conversion.
It is important to analyse the case of Priyanshi @ KM Shamreen and Noor Jahan Begum, which have been overruled by the Salamat Ansari judgement. In the case of Noor Jahan Begum @ Anjali Mishra & Another vs. State Of U.P. & Others20, five writ petitions were filed by inter-religious married couples praying for protection of the married couples and to not disturb their peaceful married life and to not harass and torture them. The Petitioner No. 1 in all the writ petitions were women who converted from Hinduism to Islam and there after married their respective partners through a “Nikah” ceremony. After examining the statements made by the Petitioner No. 1 i.e. the wives, the Allahabad High Court held that in all the petitioners, the conversion to Islam and subsequent Nikah was not bonafide and based on suppression of facts and therefore was not a valid conversion. The Court held that since Petitioner No. 1 wives did not know knowledge about Islam, did not have any real faith and belief in the unity of God and Mohammad to be Prophet, did not state that they renounced Hinduism on their own freewill and that the conversion took place at the instance of the Petitioner No. 2 husband and that too solely for the purpose of marriage, the conversion was not a valid conversion and the Nikah was against the mandate of the Holy Quran. There after, in the case of Priyanshi @ Km Shamreen And Another versus State Of U.P. & Others21, the Petitioners, who were an inter-faith couple, and where in the Petitioner No. 1 wife converted to Islam and married the Petitioner No.2, sought protection from the Allahabad High Court that no coercive measures and interferences be made in their peaceful married lives by the Respondents. The Allahabad High Court dismissed the petition by stating the ratio and observations made by the Allahabad High Court itself in the case of Noor Jahan Begum which is stated hereinabove and deemed the conversion to be invalid. These two cases have been overturned by the Allahabad High Court in the case of Salamat Ansari as not being good law since they do not deal with the issue of life and liberty of two matured individuals in choosing a partner or their right to freedom of choice as to with whom they would like to live, and therefore cannot be used as legal justification of anti-religious conversion laws.
The Supreme Court made several crucial observations in the case of Shafin Jahan v. Asokan K.M.22, commonly known as the “Hadiya case”, with regarding to freedom of choice and of individuals In this case, Respondent No. 9, Hadiya converted from Hinduism to Islam and married Appellant No. 1, Shafin Jahan during the pendency of habeas corpus petition filed by her father before the Kerala High Court. The Kerala High Court erroneously annulled the marriage, which was subsequently set aside by the Supreme Court. The Supreme Court held that by not accepting Hadiya’s choice to marry a person of her choice would create discomfort to the Courts and it is the duty of the court to uphold the right and liberty of individuals. The Supreme Court further held that the exercise of parens patriae jurisdiction, as used in this case, cannot transgress into the area of determining the suitability of partners to a marital tie as the decision rests with the individuals themselves and Courts cannot encroach into private spaces reserved for women and men. The fact that Hadiya is a major, capable of taking her own decisions and is entitled to lead her life in the manner she pleases. Further, intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the State. Interference by the State in such matters has a seriously chilling effect on the exercise of freedom as others are dissuaded to exercise their liberties for fear of the reprisals which may result upon the free exercise of choice.
It is pertinent to mention that the National Investigation Agency (“NIA”) which was permitted to conduct its investigation into cases of inter-faith marriages in Kerala found no evidence to suggest that women and men were being coerced to marry and convert to the Islamic faith out of the eleven inter-faith marriages scrutinised by them23.
The Supreme Court has also addressed the issue of harassment of individuals who marry outside their caste and religion in the case of Lata Singh v. State of U.P24. The Supreme Court directed administration/police authorities throughout the country to ensure that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, then the couple is not harassed by anyone and is not to be subjected to threats or acts of violence. The Supreme Court also observed that once a person becomes a major, they can marry whosoever they wish to and if the parents of the individual do not approve of the inter-caste or inter-religious marriage that the major has entered into, the maximum the parents can do is cut-off social relations with the individual, but they cannot threaten or commit or instigate acts of violence and cannot harass the person who undergoes such inter-caste or inter-religious marriage.
Further, in the case of Shakti Vahini v Union of India25, the Supreme Court held that when two adults consensually choose each other as life partners, it is part of their choice which is recognised under Articles 19 and 21 of the Constitution. There after, the Supreme Court laid down certain preventive, remedial and punitive measures to meet the challenges of effects of “honour crime”. As part of preventive steps, the Supreme Court directed the Secretary, Home Department of States to issue directives/advisories to the Superintendent of Police of the districts to ensure that the officer in charge of the police stations is extra cautious if any instance of inter-caste or inter-religious marriage within their jurisdiction comes to their notice. Further, despite the preventive measures taken by the State Police, if it comes to the notice of the local police that the khap panchayat has taken place and it has passed any diktat to take action against a couple/family of an inter-caste or inter-religious marriage (or any other marriage which does not meet their acceptance), the jurisdictional police official shall cause to immediately lodge an FIR under the appropriate provisions of the Penal Code including Sections 141, 143, 503 read with Section 506 IPC. Further, immediate steps should be taken to provide security to the couple/family and, if necessary, to remove them to a safe house within the same district or elsewhere keeping in mind their safety and threat perception. The State Government may consider of establishing a safe house at each District Headquarter which may be placed under the supervision of the jurisdictional district magistrate and superintended of police to accommodate young bachelor-bachelorette couples whose relationship is being opposed by their families/local community/khaps, and young married couples (of an inter-caste or inter-religious or any other marriage being opposed by their families/local community/khaps). In the case of Dhanak of Humanity & Anr. V State of NCT & Ors26., the Principal Secretary (Home), Govt. of NCT of Delhi has filed a status report with respect to the compliance of the directions given in the Shakti Vahini case.
Recently, in the case Simran Sagar & Anr. V State of GNCT Delhi & Ors.27, the Delhi Police intimated the Delhi High Court that the petitioners in this writ petition filed, may seek the assistance of the said department of social welfare, they will be given adequate safe house in terms of the verdict of the Hon’ble Supreme Court in the case of Shakti Vahini28, that the numbers of the Beat Constable and the concerned SHO have already been provided to the petitioners and as and when required, adequate protection would be provided to the lives of the petitioners.
The Calcutta High Court in the case of Palash Sarkar v State of West Bengal & Ors.29, where in a 19 year old girl converted to Islam, got married and refused to return to her parents’ house, held that if an adult marries as per her choice and decides to convert and not return to her paternal house, there can be no interference in the matter.
An analysis of the aforementioned case laws indicate that Courts have taken a firm and definitive stand on the actions of police authorities interfering in the personal life qua marriage and relationships, of individuals. However, anti-religious conversion laws continue to exist and authorities continue to interfere in the private lives of individuals. Police authorities still continue to arrest people who convert or whose spouses convert to their religion and there after get married to one another. Police authorities continue to interfere and stopping marriages of inter-faith couples from taking place. These actions occur despite the vast case law and judicial precedent that not only prohibits such actions, but also makes such actions unlawful.
Special Marriage Act, 1954
In several instances, inter-faith couples choose to get married under the Special Marriage Act, 1954 (“SMA”) however this process too poses several hurdles and problems for these couples. One of the biggest hurdles posed is the thirty-day period of notice of intended marriage30 that the parties have to provide. This period of notice is to attract any objections that any person has to the marriage within a period of thirty days of first publishing the notice, and only after which will the marriage be permitted to be solemnised31. These provisions are presently under challenge before the Supreme Court on the grounds that Section 5 of the SMA is violative of right to equality. While interfaith couples more often than not face opposition from society in general, they also face severe harassment from state authorities, even when they chose to get married as per the SMA. Further, the thirty-day notice period, including public notices, contact and residential details of the couple, is often being used to harass inter-faith couples. In several states, it is unfortunately a routine practise to call couples and often their parents to the police station, particularly in cases of inter-religious marriages32 and to send notice of the marriage of two individuals to their parents and homes. Further, in Kerala, details of at least 120 inter faith couples have been leaked on social media and these details are being used by vigilante groups to attack and harass these couples. Fortunately, certain cases and Courts have held that it is unlawful for the authorities to send the notice of intended marriage to the homes and parents of the individuals. In the case of Pranav Kumar Mishra & Anr. Vs. Govt. of NCT. of Delhi & Anr33, the Hon’ble Delhi High Court directed all Marriage Officers to not despatch notices to the residence of the applicants, who seeks solemnization of their marriage under the SMA. The Court further held that on a textual reading of the relevant provisions of the SMA and the information procured from the website of the government of Delhi that no requirement of posting of notice to applicants' addresses or service through the SHO, or visit by him is prescribed in either the Act or the website. Further, sending notices to residential addresses in case of solemnization of the marriage, in terms of Sections 4 and 5, their dispatch can well amount to breach of the right to privacy, which every individual is entitled to. The Court further held that it is to be kept in mind the that the SMA was enacted to enable a special form of marriage for any Indian national, professing different faiths, or desiring a civil form of marriage and the unwarranted disclosure of matrimonial plans by two adults entitled to solemnize it may, in certain situations, jeopardize the marriage itself. In certain instances, it may even endanger the life or limb of one at the other party due to parental interference and in such circumstances if such a procedure is being adopted by the authorities, it is completely whimsical and without authority of law. The Hon’ble Rajasthan High Court also followed the aforementioned ruling in the case of Kuldeep Singh Meena v State of Rajasthan34 directing all Marriage Officers in the State of Rajasthan not to despatch notices to the residence of the applicants who seeks solemnization of their marriage under the SMA. Therefore, despite the fact that the SMA was enacted as a secular legislation, enabling interfaith couples to marry outside their religion, while not converting to the other’s religion, some aspects of it are being misused by certain factions and authorities. However, through certain rulings, the misuse of these sections is attempting to be curbed in order to protect the privacy of individuals and enable them to marry those they wish to, without interference of their families or society.
Anti-religious conversion laws, though they were prevalent earlier, are being introduced in various states in quick succession and is creating a reign of terror amongst people. Though the existing precedents are sometimes in violation of these anti-religious conversion laws, they continue to exist and are being swiftly implemented. It is indeed difficult for inter-faith couples to enter into matrimonial alliances without facing opposition from authorities, and even if one wishes to marry under the SMA, there are several problems associated with it. While the existing laws sometimes create fear, there is hope that various Courts will strike down provisions which are unconstitutional and which are against public interest, as they have done so in the past. The faith of the public rests with various courts in India, which have come to the rescue of distressed couples and people in the past and has ensured that inter-faith couples are able to marry and live together peacefully, without facing opposition and threat from authorities and even their own family members.