An ill-conceived, overbroad and vague ordinance

The Hindu     2nd January 2021     Save    
QEP Pocket Notes

Context: Recently passed ‘The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance’, raises concerns about misuse of an ordinance making power of the state and violation of rights of inter-faith couples.

Issues with an ordinance making power of the Governor (The President of India (Article 123)):

  • Article 213 (1) provides three pre-conditions to be satisfied before the promulgation of the ordinance:
    1. The State Legislature should not be in session;
    2. Circumstances should exist for promulgating an ordinance;
    3. Those circumstances must warrant immediate action.
  • Associated concerns:
    • Reasons for immediate action is non-justiciable: The court can only inquire whether circumstances existed or not and will not delve into the sufficiency of circumstances.
    • E.g. The Farmer’s Produce Trade and Commerce Ordinance did not disclose the circumstances and urgency for immediate action.

Provisions and issues with the ordinance:

  • Prohibition on conversion by marriage: under Section 3 of the Act can be misused against inter-faith couples.
  • Excessive powers to police: under Section 7 of the Act provides for the arrest of a person (without magistrate’s order) on the information (can be fake) that he/she is designing a religious conversion.
    • The nature of information includes an allegation of allurement, which includes an offer of any temptation in the form of a gift or gratification.
    • Recent example of misuse: Arrest of a boy offering pizza to a girl of a different religion.
  • Arbitrary State interference:
    • Under Section 8 of the Act: The person getting converted has to inform two months prior to the District Magistrate (DM) through a declaration. (Thus, DM determines the fate of conversion)
    • Even thereafter, DM must be informed by the converted through a declaration under Section 9.
  • Under Section 12: lies with the person who has caused the conversion, to prove that conversion was not on account of coercion, fraud, etc. or by marriage.

Conclusion: The ordinance vil­ifies all inter­faith marriages and places unreasonable obstacles on consenting adults in exercising their personal choice, mocks the right to privacy and violates the right to life, liberty and dignity.

QEP Pocket Notes