Former Chief Justice of the Delhi High Court, AP Shah, on Friday said the new anti-conversion law in Uttar Pradesh was regressive in nature as it reflected the “philosophy of a khap panchayat”, and was aimed at perpetuating the subjugation of women, NDTV reported. The ordinance, Shah said, was capable of “great public mischief” and must be struck down immediately.

The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 was promulgated by Governor Anandiben Patel last month. The law is intended to target “love jihad” – pejorative term coined by the right-wing groups to push the conspiracy theory that Muslim men charm Hindu women into marrying them with the sole purpose of converting their brides to Islam. Ever since the law came into force, the Adityanath government has launched a crackdown on interfaith marriages in the state, arresting a spate of Muslim men.

In an interview to the channel, Shah expressed his disbelief that a law like this was passed by a government “in a country governed by the rule of law and a constitution”.

The former judge noted that a version of the “love jihad” theory was floated by one UN Mukherjee, 100 years ago in a book, where he talked about the myth of the overbreeding Muslims, threatening to emerge as a majority community in India. Over the years, Mukherjee’s book, Hindus – a Dying Race, has emerged as an important propaganda material of the Hindu Mahasabha.

“The Hindu Mahasabha tried to gather support around the idea that Muslim men are waging jihad in India through love marriages,” Justice Shah said. “The women are warned against unsuitable outsiders, particularly those who are outside the religion or a lower caste. They were told that they should remain poor, that they might fit the role of the mothers of the nation.”

Shah said that Khap panchayats follow a similar philosophy with the objective of subjugating women. “A khap leader went on so far as to infamously say that ‘only whores choose their partners’”, the former judge added.

Khaps are traditionally a group of villages organised on the basis of caste and geography, where village elders gather regularly to discuss daily matters and make decisions on civil matters like marriage, payment of debts and social customs. They are extra-constitutional bodies that do not fall in with the Gram Panchayat structure. Experts have expressed concern about how the system, by existing beyond the means of judiciary hierarchy, is detrimental to women as the village heads often become watchdogs of communal honour and custom.

‘Violative of fundamental rights’

Speaking about the constitutionality of the law, Shah said, several provisions of the ordinance “seriously violate” the fundamental right to practice religion as guaranteed by Article 25 of the Constitution, and “strike at the very root” of right to life and liberty guaranteed by Article 25.

“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 AP Shah, NDTV

The law requires a person seeking to convert to another religion to take the permission of a district magistrate first, who then conducts an inquiry, Shah noted. If the conversion is based on allurement, then it is illegal. “However, the term allurement itself is defined in a very broad way in this law: a single wedding gift like a wrist watch, a bangle, or say a ring, would amount to an allurement,” the former judge said.

Shah highlighted the problems in the way the law prescribes punishment for an offence.

“If the victim is a minor or a woman, or a member of the SC/ST, the [jail] term goes up to 10 years,” he said. “Even if the woman is a professor, say a very educated woman, if she is converted, the sentence is 10 years. If you convert an illiterate male person, the sentence is five years.”

Shah said that the ordinance “has already taken its toll”, with large-scale arrest of people and stories of separation. “It is clear that the ordinance must be struck down immediately,” he added. “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, he held, can be done only by the judiciary. Shah cited a recent Allahabad High Court ruling that held that marriage was a matter of choice and that every adult woman had the fundamental right to choose her partner. The High Court had overruled its own earlier judgment of a single-judge, which held that religious conversion “just for the purpose of marriage” was unacceptable

“The Uttar Pradesh ordinance has borrowed lines from the single-judge ruling which is no longer valid,” he pointed out.

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‘Love jihad’: Allahabad HC issues notice to UP government on pleas challenging law on conversion