Four former judges have criticised the new anti-conversion ordinance of Uttar Pradesh, aimed at curbing cases of "love jihad", calling it unconstitutional, against fundamental rights, and one of the strangest laws, with one even terming "love jihad" a "creation of religious extremists for the purpose of dividing people."
The Uttar Pradesh government had last month promulgated an ordinance, Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, which requires any proposal to convert permission from the District Magistrate, two months in advance.
It prohibits any conversion by "misrepresentation, force, undue influence, coercion, allurement, or by any fraudulent means or by marriage." The law significantly also says that marriages that are done "for the sole purpose of unlawful conversion or vice versa" would not be allowed.
Former Delhi High Court judge and former chairman of the National Law Commission, Justice AP Shah, said the new law reflects the philosophy of a khap panchayat, with the objective essentially being to subjugate women.
The former judge told NDTV that several of its provisions violate the fundamental right to practice religion, "striking at the very root of right to life and liberty guaranteed under the constitution". This ordinance, he said, was "capable of great public mischief". The former judge found it "difficult to believe it was passed by a government in a country governed by the rule of law and a constitution".
"In any criminal case (where) conversion is presumed to be illegal, the burden of proof is usually on the prosecution. In this ordinance, every religious conversion is presumed to be illegal. The burden of proof lies on the person accused of illegal conversion to prove that it is not illegal. So there is a presumption of guilt. The offence is cognisable. It is non-bailable and the police can arrest anyone," Justice Shah said.
The ordinance has already taken its toll, according to him, with large-scale arrest of people and stories of separation.
"It is clear that the ordinance must be struck down immediately. And certainly must not be permitted to be enacted into a statute. We need to stop the destruction of these freedoms guaranteed by the Constitution. This can be done only by the judiciary," he said.
Similarly, former Supreme Court judge, Justice Madan B Lokur, in a written statement to NDTV said that "it will require a miracle to uphold its constitutional validity," while calling it "one of the strangest legislations" he had ever seen.
The former Supreme Court judge said while he did not support forcible or fraudulent conversions, he was against penalising voluntary conversions.
Justice Lokur questioned the clause that said the burden of proof would fall on the accused, and how the definition of "allurement" as mentioned in the law was far too vague and broad, and how it was strange that while conversion has been deemed illegal, reconversion back to the previous immediate religion was not.
He also questioned how can marriages be done for unlawful conversions, as envisaged in the law, and pointed out that even children borne of such marriages would have to bear the brunt.
"How can a marriage be performed for an unlawful conversion? I can understand an unlawful conversion for a marriage, but not the other way around. Conversion even after marriage makes the conversion void. So if a woman converts herself to another religion, the marriage becomes void and the children of the otherwise happily married couple become illegitimate straightway," he wrote.
Justice Lokur also raised concerns over the provisions of the law which requires those who have converted to send a declaration to the District Magistrate, who will in turn put up a copy of the declaration on his office notice board.
"What is the purpose of a notice after conversion? If an IPC (Indian Penal Code) crime is committed, no notice is put up about a crime having been committed. What is so special about a conversion, which is lawful or unlawful, that it should be put up for public information?" he asked.
Justice Deepak Gupta, a former Supreme Court judge, too called the law "absolutely unconstitutional," while adding that it takes away the right of choice of every human being.
He said the only intention is to criminalise conversion for marriage and to criminalise marriages themselves that involve conversion, as many states have anti-conversion laws that have been upheld by the courts, to deal with forcible and fraudulent conversions. He pointed out what the judges said about the definition of allurement in the law being vague.
"Anyway, what business does the government have to deal with the personal beliefs of any human? Our Constitution guarantees every individual the right to not only freedom of religion, the right to have his or her own belief, and this belief needn't be a religious belief, you could be an atheist, you could be agnostic, you could be anybody. But it's your right to believe, and the Constitution also guarantees that each one has the right to change our beliefs," he said.
When asked about the need to hear the petitions challenging the law as soon as possible, as there have been cases filed under the new law in Uttar Pradesh already, he said that the law was being "misused."
"Because the law even as it is promulgated, if it is said to be legal, the cases I read are of marriages that took place many months before the law came into force. It seems our police and our bureaucracy are more loyal than the king himself, and they just want to prove that something going wrong," he said.
He cited the case from Moradabad, as an example, where a young woman was heckled and harassed by Bajrang Dal workers inside a police station when she tried to get her marriage to a Muslim man registered, but no action was taken against the members of the right wing group, while the woman was sent to a shelter home and her husband and brother-in-law were sent to jail. "I wish we lived in better times," he said.
Former judge of the Kerala High Court, Justice M Sasidharan Nambiar, also said that in his view, "the ordinance will not survive the test of constitutional validity as it violates Article 21 of the Constitution which guarantees personal liberty of every citizen of this nation irrespective of religion, caste and gender."
"The right of an individual to decide whether to marry or not and to choose the partner is his/her absolute right so long as it is not unlawful," he said in a written statement, while adding that neither the person's parents or the state has any right to interfere. He said that the right to privacy as interpreted by the Supreme Court in the Puttaswamy case entitles people to protect the right to choose their partner, as family, marriage, procreation and sexual orientation are all integral to the dignity of the individual.