By Celine Mary
In a landmark judgement on August 24,2017, a nine-judge bench of the Supreme Court ruled that Indians enjoy a fundamental right to privacy, that it is intrinsic to life and liberty and thus comes under Article 21 of the Indian Constitution. The Supreme court stated – “The right to be let alone is a part of the right to enjoy life. The right to enjoy life is, in its turn, a part of the fundamental right to life of the individual”.
The 547-page judgement delved deep into almost all facets of a person’s life and made it amply clear that the State has no business interfering into the private space of a citizen and it is not only unconstitutional but also violative of the International Covenants India is a signatory to.
We need to see the UP-Government’s Prohibition of Unlawful Conversion of Religion Ordinance 2020 in this backdrop.
According to the Ordinance, if any conversion is made due to any Allurement, Gift, Gratification, Easy Money, Material Benefit, Employment, Free education in reputed school or better lifestyle, divine displeasure or due to Coercion, Fraudulent means, then such a conversion shall be punishable under Section 5.
The most common reason given by people willingly converting their religion, is that they were convinced about divine displeasure in remaining in their current religion or about divine benefits in a different religion. There is no other spiritual reason that a person willingly wanting to convert his religion would state. So, how can conversion because of believing in divine displeasure be a wrong motive when all that religion deals with is divinity? What else is religion other than divine rules about displeasure and blessings, no matter how unreasonable it may sound?
The Ordinance is unclear about allurement as well. Even a small gift could be termed allurement under this ordinance. In fact, I would daresay that even if a person changes his religion because of material benefits, that should be left to his/her personal choice. Don’t people change jobs for better salaries? Don’t we vote out governments believing in political manifestos? In a secular country, why should the religious choice of a person be given any more sanctity than his choice of employment or political party? And why should the government be interested in it? By that logic, the same person would change his religion again if given other material benefits. Let him reap that benefit if there are such magnanimous souls around. In a country like India where starvation deaths are still not history, it is petty to be spending so much time and energy behind investigating the reasons behind changing one’s religious beliefs which affect nobody other than the person concerned. The Law and Government should ideally be worried if someone uses force or coercion to change the choice of any person- be it religious, political or employment.
Further, the Ordinance states that one who desires to convert his religion voluntarily, needs to give a declaration in a prescribed form at least 60 days in advance, to the District Magistrate, stating that the conversion is being done out of free will and that the person wishes to convert his religion without force, undue influence, coercion, allurement. The DM after satisfying himself/herself about the declaration, would grant permission for the conversion. It doesn’t end here. It further states that the person, after his conversion needs to send another declaration to the DM and also present himself/herself physically before him/her. Bizarre!!
Are the District Magistrates in U.P this jobless that the Government had to find this alternate means of employment for them?
The Supreme court while giving the judgement regarding the right to Privacy stated the following: “The freedoms under Article 19 can be fulfilled where the individual is entitled to decide upon his or her preferences. Read in conjunction with Article 21, liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matter on which autonomy and self-determination require a choice to be made within the privacy of the mind. The constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world.” So why should a person be required to give declarations to express his/ger choice about his religion to anyone?
The Supreme Court had also earlier recognized that: “…a forcible intrusion into a person’s mental processes is also an affront to human dignity and liberty, often with grave and long-lasting consequences…” Human dignity was construed in M Nagaraj vs Union of India168 by a Constitution Bench of the Supreme Court to be intrinsic to and inseparable from human existence. Dignity, the Court held, is not something which is conferred, and which can be taken away, because it is inalienable.
In R. Rajagopal v. State of Tamil Nadu, (1994) 6 SCC 632, the Supreme Court had to decide on the rights of privacy vis-a-vis the freedom of the press, and while at it, referred to a large number of judgments. The SC then concluded – The right to privacy is implicit in the right to life and liberty guaranteed to the citizens of this country by Article 21. It is a “right to be let alone”. A citizen has a right to safeguard the privacy of his home, his family, marriage, procreation, motherhood, child-bearing and education among other matters. None can publish anything concerning the above matters without his consent — whether truthful or otherwise and whether laudatory or critical. If he does so, he would be violating the right to privacy of the person concerned and would be liable in an action for damages.
The UP-Government ordinance also states that a marriage will be declared void if the sole purpose of the marriage was a religious conversion or the sole purpose of religious conversion was marriage, provided there is a petition presented by either party thereto against the other party of the marriage. But what is being seen in the past few days is that inter-faith couples are being picked up and harassed even when neither party has made any such petition. Adults who otherwise have the right to franchise are being questioned about their choice of life partners and one woman has also lost her unborn baby due to this heckling.
This Ordinance does not have any Constitutional leg to stand on. Read with the 2017 Supreme Court judgement, it should be shred to pieces and thrown into the garbage where it belongs. Along with the Government which thought of such an undemocratic piece of legislature.
Disclaimer: The opinions expressed within this article are the personal opinions of the author. AlignIndia does not take any responsibility for the content of the article.
Celine Mary is a social media activist fighting against post-truth and for secular values