Research On The Constitutionality Of The U.P.

Prohibition Of
Unlawful Conversion Of Religion Ordinance, 2020

Written and Compiled by: Varun Singh

1. Meaning of ‘Ordinance’

The meaning of ‘ordinance’ under Oxford Dictionary is ‘an authoritative

order’. Ordinances are orders promulgated by state or central government
when there is an immediate need of such order. These ordinances, to enforce
them effectively, must not be repugnant to any provision of existing higher
laws, such as state, national or constitutional provisions.

The ordinance making powers are conferred in Article 123 (President of India)
and 213(Governor of a State) of the Constitution of India.

Art.123. Power of President to promulgate Ordinances during recess of

Parliament:
1. If at any time, except when both Houses of Parliament are in session, the
President is satisfied that circumstances exist which render it necessary
for him to take immediate action, he may promulgate such Ordinance as
the circumstances appear to him to require
 Art.213. Power of Governor to promulgate Ordinances during recess of
Legislature
1 If at any time, except when the Legislative Assembly of a State is in session,
or where there is a Legislative Council in a State, except when both
Houses of the Legislature are in session, the Governor is satisfied that
circumstances exist which render it necessary for him to take immediate
action, he may promulgate such Ordinance as the circumstances appear
to him to require

2. Purpose of U.P. PUCRO, 2020

The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance,

2020 has been promulgated by the Governor to ”provide for prohibition of
unlawful conversion from one religion to another by misrepresentation, force,
undue influence, coercion, allurement or by any fraudulent means or by
marriage and for the matters connected therewith or incidental thereto.”

The compelling reasons alleged to be supporting this Ordinance was rise in

the cases of ‘Love-Jihad’ or forced religious conversion for marriage in the
state. However, no facts, figures or statistics have been given by the state
government in support of the compelling reasons.

An analysis of “India Human Development Survey data, 2005” showed that

only 2.21 per cent of all married women between the age of 15-49 had married
outside their religion.1

1
Source: TheIndianExpress Article “UP Anti-conversion law amounts to discrimination and a violation of the
right to equality”
3. Constitutional Validity of the U.P. Prohibition of Unlawful Conversion of
Religion Ordinance, 2020

The Ordinance is against the provisions of the Constitution as follows:

(i) The Procedure adopted to enact this Ordinance

The Ordinance was hastily passed under the provision of Article 213 of
the Constitution of India which extends the legislative power to
executive. Article 213 gives power to the governor to promulgate
ordinances during the recess of legislature, it states –

If at any time, except when the Legislative Assembly of a State is in

session, or where there is a Legislative Council in a State, except when
both Houses of the Legislature are in session, the Governor is satisfied
that circumstances exist which render it necessary for him to take
immediate action, he may promulgate such Ordinance as the
circumstances appear to him to require

From the bare reading of the said Article provides that the power to
make such ordinance if ‘circumstance exist which render it necessary
for him take immediate action’. It is pertinent to note that there has to
be a circumstance where an ‘immediate action’ is necessary. Without
such exigency it renders the ordinance as unconstitutional. The mere
hastiness of enacting this Ordinance by undertaking ‘primarily to by-
pass debate and discussion in legislature’2 is anti-democratic.

2
RC Cooper v Union of India 1970 AIR 564
 The compelling reasons alleged to be supporting this Ordinance was
rise in the cases of ‘Love-Jihad’ or forced religious conversion for
marriage in the state. However, no facts, figures or statistics have been
given by the state government in support of the compelling reasons.
The chief Minister of UP has cited two decisions of single judges of
High Court of Allahabad, namely, Priyanshi@Km. Sharen v. State of
U.P. and Noor Jahan Begum @ Anjali Mishra V. State of U.P. which
held these marriages void after such religious conversions. Further, in
Salamat Ansari v. State of UP3, the division bench of the High Court of
Allahabad condemned the aforementioned two cases and held them to
be “no good laws” under the Constitution.
Moreover, The special investigation team appointed by the UP Police
to gather data and information regarding the cases of ‘Love-Jihad’
found no concrete evidence as the most of the cases of Hindu-Muslim
marriages turned out to be consensual and with their own free will.4

It is pertinent that, there was no circumstances occurred before the state

government which requires an immediate action to promulgate an
ordinance under Article 213 by-passing all the procedures of making a
law in the parliament. This law was needed a thorough and necessary
debates and analysis before adding such strict penal punishments and
an overly complex procedure to prove free and wilful consent of the
parties. The procedure adopted to make this law is complete disregard
to the Constitution of India.

3
MANU/UP/2029/2020 Salamat Ansari and Ors. vs. State of U.P. and Ors. (11.11.2020 - ALLHC) : MANU/
4
Source: LiveLaw.in
 (ii) Violates Privacy Rights and Article 21 of the Constitution of India

The Anti-Conversion ordinance with its stringent penal punishments

and complex, difficult and strange provisions for declaration of
conversions makes it violative of fundamental rights guaranteed under
Article 21. Former Supreme Court judge, Justice Madan B Lokur, in a
written press statement said that “it will require a miracle to uphold its
constitutional validity” and called the ordinance “one of the strangest
legislation” he had ever seen. From time to time, courts with numerous
decisions, gave importance of the personal space which includes
decisions in respect of family and married life.
This ordinance, with its strict punishments and difficult provisions,
violates one of the very basic fundamental rights guaranteed under the
constitution and is also a Human right, the right to marry person of one’s
choice. “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”5, said
Justice Chandrachud in the landmark judgment popularly known as
Hadiya’s Case.

Shafin Jahan v Asokan K.M.6 also known as Hadiya Case:

Supreme Court, in this case, held “the right to marry a person of one’s
choice is integral to Article 21 of the Constitution’ as they set aside the
Kerala High Court order which annulled the marriage of Kerala Muslim
converted girl Hadiya and Shafin Jahan.

5
Shafin Jahan v. Asokan KM 2018 SCC OnLine SC 343
6
2018 SCC OnLine SC 343
 “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 absolute right of
an individual to choose a life partner is not in the least affected by
matters of faith. The Constitution guarantees to each individual the right
freely to practise, profess and propagate religion”

“Choices of faith and belief as indeed choices in matters of marriage lie

within an area where individual autonomy is supreme. The law
prescribes conditions for a valid marriage. It provides remedies when
relationships run aground. Neither the state nor the law can dictate a
choice of partners or limit the free ability of every person to decide on
these matters. They form the essence of personal liberty under the
Constitution.” Wrote Justice Chandrachud.

Strength of the Constitution lies in acceptance of the pluralism and

diversification of our nation’s culture as he added “the cohesion and
stability of our society depend on our syncretic culture. The
Constitution protects it. Courts are duty bound not to swerve from the
path of upholding or pluralism and diversity as a nation”.

Lata Singh v. State of U.P.7:

In this case, the Supreme Court of India has clearly laid down the law
related to inter-faith and inter-caste marriages and held that “This is a

7
(2005) 5 Supreme Court Cases 475
 free and democratic country, and once a person becomes a major he or
she can marry whosoever he/she likes. If a 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 can not give threats or commits or instigate acts of
violence and cannot harass the person who undergoes such inter-caste
or inter-religious marriage.”
However, Section 4 of this anti-conversion ordinance clearly disregards
the aforementioned judgment with its provision where any person
having blood relations with person undergoing such inter-faith marriage
are competent to lodge First Information Report which can be misused
easily.

Salamat Ansari and ors. v. State of U.P. and ors8:

In this case, division bench of Allahabad High Court while condemning

the two decisions of single judges of High Court of Allahabad, namely,
Priyanshi@Km. Sharen v. State of U.P. and Noor Jahan Begum @
Anjali Mishra V. State of U.P. which held these marriages void after
such religious conversions and declaring them as “no good laws”, the
court held that,

“We do not see Priyanka Kharwar and Salamat as Hindu and Muslim,
rather as two grown up individuals who out of their own free will and
choice are living together peacefully and happily over a year. The
Courts and the Constitutional Courts in particular are enjoined to

8
MANU/UP/2029/2020
 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. We fail to understand that if the law permits two
persons even of the same sex to live together peacefully then neither
any individual nor a family nor even State can have objection to
relationship of two major individuals who out of their own free will are
living together. Decision of an individual who is of the age of majority,
to live with an individual of his/her choice is strictly a right of an
individual and when this right is infringed it would constitute breach of
his/her fundamental right to life and personal liberty as it includes right
to freedom of choice, to choose a partner and right to live with dignity
as enshrined in Article 21 of the Constitution of India.”

Justice K.S. Puttaswamy and ors. v. Union of India and ors. popularly
known as the ‘Right to Privacy Judgment’9:

The Supreme Court in this judgment, Right to Privacy was given

designated as a fundamental right included in Article 21 of the
Constitution of India, the court stated that, “The destruction by the state
of a sanctified personal space whether of the body or of the mind is
violative of the guarantee against arbitrary state action. Privacy of the
body entitles an individual to the integrity of the physical aspects of
personhood.”

9
MANU/SC/1044/2017 Justice K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Ors. (24.08.2017 - SC) :
MANU/SC/1044/2017
“The family, marriage, procreation and sexual orientation are all
integral to the dignity of the individual. Above all, the privacy of the
individual recognises an inviolable right to determine how freedom
shall be exercised.”

Any unlawful infringement with this right shall be held unconstitutional

under this judgment. Therefore, no law could interfere with this right to
privacy of people and enter into their lives without any reasonable and
justiciable reasons. A law cannot be held a good law without a rational
nexus to its object and the means adopted to achieve that law.

Supreme Court has laid down some tests in order to determine that,

“A law which encroaches upon privacy will have to withstand the

touchstone of permissible restrictions on fundamental rights.
In the context of Article 21 an invasion of privacy must be justified on
the basis of a law which stipulates a procedure which is fair, just and
reasonable. The law must also be valid with reference to the
encroachment on life and personal liberty Under Article 21.

An invasion of life or personal liberty must meet the three-fold

requirement of (i) legality, which postulates the existence of law; (ii)
need, defined in terms of a legitimate state aim; and (iii) proportionality
which ensures a rational nexus between the objects and the means
adopted to achieve them”

“Privacy has both positive and negative content. The negative content
restrains the state from committing an intrusion upon the life and
personal liberty of a citizen. Its positive content imposes an obligation
 on the state to take all necessary measures to protect the privacy of the
individual.” The court added.

The U.P. Prohibition of Unlawful Conversion of Religion Ordinance

2020, fails miserably as (i) the ordinance is neither legal nor, (ii) the
government of the state has specified its aims clearly for this ordinance,
and (iii) the provisions of the legislature does not have a rational nexus
between its objects and needs sought to be fulfilled by the law.

(iii) It violates Right to marry a person of one’s choice as a Human Right:

Article 16 of the Universal Declaration of Human Rights underscores

the fundamental importance of marriage as an incident of human
liberty10:

Article 16.

(1) Men and women of full age, without any limitation due to race,
nationality or religion, have the right to marry and to found a family.
They are entitled to equal rights as to marriage, during marriage and
at its dissolution.

(2) Marriage shall be entered into only with the free and full consent of
the intending spouses.

It is pertinent to note, that the legislature in question unjustly interferes

with personal rights of the individuals and renders a Human Right
(Right to marry a person of one’s choice) and the decisions of the

10
United Nations
 courts, such as the fundamental Right to privacy, Right to marry a
person of one’s choice, Right to conversion of religion, as criminal by
including provisions with penal punishment of imprisonment. Hence,
the ordinance clearly infringes the Article 21 and is a complete violation
of fundamental rights which is illegal, unjust and against the principles
of constitutionality and is ought to be held as unconstitutional.

4. Opinions of Former Judges on the legislation in question

Four former judges, in a press statement, has criticised the U.P. Prohibition of
Unlawful Conversion of Religion Ordinance 2020, calling it as
‘unconstitutional’.11

(i) Justice A.P. Shah, former Delhi High Court Judge, and former
Chairman of National Law Commission:

Justice Shah said that the new law reflects the philosophy of ‘khap
panchayat’ with its objective is to ‘subjugate women’. He added
That it is “striking out the very root of right to life and personal liberty”.
The said ordinance is “capable of great public mischief”.
“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 presumption of guilt. The offence is cognisable and non-
bailable and police can arrest anyone”, said Justice Shah.

11
Source: NDTV
(ii) Justice Madan B. Lokur, former Supreme Court Judge:

Justice Lokur called it “one of the strangest legislations” he had ever

seen. Mainly he questioned on the clause where the burden of proof lies
upon the person accused for conversion and stated his concerns over the
definition of “allurement” in the ordinance as he states it “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 added, “what is the purpose of a notice after conversion? If an

IPC crime is committed, no notice is put up about the crime having been
committed. What is so special about the conversion, which is lawful or
unlawful, that it should put up for public information?”.

(iii) Justice Deepak Gupta, former Supreme Court Judge:

Justice Deepak Gupta too called the U.P. Ordinance “absolutely

unconstitutional”. He said, “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 anyone. But it’s your right to believe, and the Constitution also
guarantees that each one has the right to change our beliefs,”

(iv) Justice M Sasidharan Nambiar, former Judge of Kerala High Court:

 Justice Nambiar share the common thought that “the ordinance will not
survive the test of constitutional validity as it violates Articles 21of 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.

5. The misuse has already begun!

The Uttar Pradesh Prohibitions of Unlawful Conversion of Religion

Ordinance,2020 was cleared by the state cabinet in the month of November
and was granted assent of the Governor of the state on 28th November 2020.

Moradabad Court-UP, has ordered the release of the two brothers, Rashid and
Saleem, who were arrested under this newly promulgated ordinance, on 5th
December 2020.

The two brothers were arrested as soon as when they got back from the
Registrar’s office to record Rashid’s marriage to a Hindu woman named Pinky
(Muskan Jahan). The Fisrt Information Report was lodged by the mother of
Pinki at Kanth Police Station at Moradabad district against Rashid Ali. She
alleged that Rashid was trying to convert her daughter’s faith and marry her.
However, Pinki, denied the allegation on Rashid and told, in media reports,
that her mother levelled fake charges on Rashid Ali and she married Rashid
and converted to Islam of her free will.
 Rashid and his brother was charged under Section 3 of the ordinance
(prohibition of conversion from one religion to another by misrepresentation,
force, fraud, undue influence, coercion, allurement or marriage) and section 5
clause (1) (Punishment clause) of the U.P. Prohibition of Unlawful
Conversion of Religion Ordinance, 2020.

Kanth Police submitted the report under section 169 of CrPC, stating that no
evidence was found of forceful conversion and after Pinki also denied the
allegations of forceful conversion by Rashid Ali and his Brother Saleem.

Moradabad District Court ordered that,

Taking into account the fact that police did not find any evidence against
Rashid, it filed its report under section 169 CrPC, it did not ask for their
remand and that girl, Pinki clearly stated that she was not coerced into
marriage, the Court of Chief Judicial Magistrate found that “it is not in the
interest of Justice to keep Rashid and Saleem in the District Jail.12

The Court released Rashid and Saleem from the District Jail of Rs.50,000/-
personal bond each on 19th December, 2020.

In furtherance, a similar case was filed on 18th December 2020, where

Allahabad High court adjourned over an arrest of a man booked by U.P. Police
under this recently promulgated U.P. Prohibition of Unlawful Conversion of
Religion Ordinance, 2020.

12
Annex-V (Full Order)
 The Court, a division bench comprising of Justice Pankaj Naqvi and Justice
Vivek Agarwal, stated that,

“Victim is admittedly an adult who understand her wellbeing. She as well as

the Petitioner have a fundamental Right to Privacy and being grown up adults
who are aware of the consequences of their alleged relationship”13

13
Source: LiveLaw
 BIBLIOGRAPHY

Legislations:

1. The U.P. Prohibition of Unlawful Conversion of Religion Ordinance, 2020 – India

2. The Constitution of India – India
3. The Universal Declaration of Human Rights (UDHR)
4. The Code of Criminal Procedure, 1973 – India

Court Orders/Judgment/Case Laws Cited:

1. RC Cooper v. Union of India: 1970 AIR 564

2. Salamat Ansari and Ors. vs. State of U.P. and Ors. (11.11.2020 - ALLHC):
MANU/UP/2029/2020 (Annex-I)
3. Shafin Jahan v. Asokan KM: 2018 SCC OnLine SC 343 (Annex-II)
4. Lata Singh v. State of U.P. : (2005) 5 Supreme Court Cases 475 (Annex-III)
5. Salamat Ansari v. State of U.P. : MANU/UP/2029/2020 (Annex-I)
6. Justice K.S. Puttaswamy and Ors. vs. Union of India (UOI) and Ors. (24.08.2017 -
SC) : MANU/SC/1044/2017 (Annex-IV)
7. Moradabad District Court Order: (Annex-V)

Articles/Publications/News:

1. TheIndianExpress - UP Anti-conversion law amounts to discrimination and a

violation of the right to equality” (ANNEX-A)
2. Live Law- The Constitutional validity of the Uttar Pradesh Prohibition of Unlawful
Conversion of Marriages (ANNEX-B)
3. LiveLaw- 'Right To Choose A Partner Of Choice A Fundamental (ANNEX-C)
4. Bar&Bench- Plea in Supreme Court challenges Uttarakhand (ANNEX-D)
5. NDTV- Love Jihad UP's Anti-Conversion Law “Unconstitutional” says 4 judges
(ANNEX E)
6. LiveLaw-UP Anti Conversion Law- No Evidence Of Forceful (ANNEX-F)

Others:

1. United Nations Official Website

2. Oxford Dictionary
3. Wikipedia.org
4. SCC Online
5. Manupatra