The Façade Of Facial Neutrality: Do We Respect Our Women, Their Choice?

In providing for a harsher punishment for conversion of women to another religion, the new law assumes that (a) women, unlike men, are not agents in the Aristotelian sense and are incapable of making reasoned decisions, particularly regarding marriage and faith. In its implementation, largely to question conversion of women to other religions for the purpose of marriage, (b) the law creates a disparate impact on women and their choice of partner in a marriage. This is evinced by the cases filed thus far in the courts of Delhi & Uttar Pradesh, discussed later in the article. The ordinance thus provides fodder for constitutional challenge on the ground of sex discrimination, i.e. unequal protection of law under Article 14 of the Constitution.

Glance at law

The Ordinance prohibits conversion to another religion by fraudulent means, misrepresentation, coercion etc. or by marriage (Sec 3, 5) and makes it a punishable offence. It bars marriage for the sole purpose of conversion and also conversion for the purpose of marriage as unlawful and renders such a marriage void (Sec 6). This carries punishment for a minimum of one year and a maximum of five years for any person who unlawfully converts and those who aid, abet or counsel such person (Sec 11).

Pertinently, the offence is couched in gender-neutral language and gives the prima facie impression that it applies equally to both sexes. However, a careful examination of the punishment provision reveals that the punishment is higher for conversion of women i.e. a minimum of two years to a maximum of ten years (Sec 5). This is coupled with the fact that punishment for repeat offenders can be double the award of the first conviction. Moreover, the law mandates a declaration to be made to the state administration before conversion to another religion. Here, the provision specifies inclusion of father's/ husband's name amongst other details (Sec 9(3)). That apart, the law gives an opportunity to any person related by blood, marriage or adoption of the individual to file the First Information Report in case of unlawful conversion (Sec 4). Objections may also be raised to the conversion by 'any person' after the declaration has been made to the District Magistrate (DM) of the locality.

These provisions help us draw two concealed yet apparent conclusions about application of the new law. Firstly, a higher punishment for conversion of women and specific disclosure of father's/ husband's name reflect a gendered application of law. And secondly, the involvement of family in objecting to marriage after conversion or vice versa, though appears neutral, makes out a special case for women in India, who often find themselves conflicted in a hierarchical and patriarchal family structure to make their own decisions.

Normative Agency & Article 21

The law portrays the stringent and gender-tilted punishment provision as a measure possibly to protect women, who are considered a vulnerable group in the society. This may further be supported by the argument that the higher punishment is retained even for other vulnerable groups, such as Scheduled Castes & Tribes. What appears to be a justified objective of the ordinance seems otherwise on a deeper societal and cultural introspection. Such societal reflection in fact suggests that women are lesser able to make their own decisions and choose their own partners in marriage or preach their own faith. At this juncture it is relevant to discuss the Aristotelian theory of human action which focuses on 'agency'.

Agency, as defined by Aristotle, means a fundamental human quality that directs all human action. It is nothing but a manifestation of the capacity to act, make reasoned decisions, to deliberate and to choose. Basis the theory of 'normative agency', Griffin developed his account of human rights to state that human rights are only those rights that are capable of furthering this agency i.e. the ability of choice and decision-making. This account of human rights however led to exclusion of some from grant of basic human rights, particularly women. The celebrated academician Sandra Fredman has criticised agency and autonomy (in the Aristotelian sense) as the basis of rights for this very reason. She states that since Aristotle considered agency to be possessed only by rational beings, it was used to exclude women and justify their insubordination in family and state (Sandra Fredman, 'Comparative Human Rights Law' (Oxford University Press 2019)). Women were considered to have an unequal propensity to reason. It is for the same reason women were disentitled from voting till 1920s in the US and became entitled considerably after black men were entitled to vote. And the same reason for which choice of women in India is considered less relevant for significant decisions concerning division of property or even choice regarding their own marriage and their own faith. Regrettably, and regressively, the Anti-Conversion Ordinance seems to move in this direction.

To put it all in one frame, the ordinance bars conversion to another religion for the purpose of marriage and treats conversion of women a greater offence, deserving a harsher punishment. In doing so, it overly constraints their right to choose a partner in marriage and makes religion a criterion affecting their choice. Sadly enough, this is despite the Apex Court's ruling in Joseph Shine, where circumstances required the Court to specifically hold the individual choice of women is legally recognized under Article 21 and must be socially respected.

Disparate impact & Article 14

Since the ordinance has been enforced, numerous cases of arrest upon conversion have reached the Court on the pretext of lack of consent. The increased litigation is also a result of the offence being made watertight by making it cognizable and non-bailable, with the burden of proof of free consent on the person intending to convert. Besides, it is not a coincidence that most cases under the new law have been instituted by the family of the bride, objecting to marriage outside religion and basing it on lack of the woman's consent.

In the case of Nadeemv. State of UP, a police complaint was registered against the Muslim husband by the family of his Hindu wife on the allegation of unlawful conversion. Making observations that there existed no evidence of coercion and that the complaint was based on mere suspicion, the Allahabad High Court promptly protected the husband from arrest and also cited Puttaswamy to reiterate the right to have relationships guaranteed under the right to privacy. The Court most aptly remarked that an adult woman is aware of her well-being and the consequences of her relationship and her autonomy and agency must be respected. Similar was the fate of the case Shikhav. State of UP, where the High Court held that an adult woman is free to choose her husband and live with him and such choice cannot be interfered with by any third party. In a similar case of Simran Sagar an inter-faith couple that fled UP fearing harassment by vigilantes and arrest under the ordinance, sought police protection from the High Court of Delhi. The Court not only granted protection to the couple but also acceded to the specific direction sought against the woman's father, to not interfere or impede with the couple's decision to marry each other. While these are just some examples of cases that have reached the court, it has been reported that out of 14 cases registered under the new law, 13 cases concern conversion of women, where 12 were filed by relatives of her family (reference: Indian Express). The new law has thus come to apply disproportionately to women and has questioned their choice repeatedly at the behest of their family and/ or vigilante groups who have lodged complaints with the police.

Having said that, our Courts are adept in applying the equality law jurisprudence on disparate (disproportionate) impact which was specifically recognised by the Supreme Court in Navtej Singh Johar. In the words of Hon'ble Justice Chandrachud "facially neutral action by the State may have a disproportionate impact upon a particular class" and may therefore cause inequality. The court also cited law from EU (Directive 2006/54/EC) which defines indirect discrimination as discrimination caused by an apparently neutral provision which puts persons of one sex at a particular disadvantage as compared to the other. This is caused due to the personal characteristics attributed to an individual on the basis of association to a group (Andrews v. British Columbia (Canada)). Thus, aim should be to not only prohibit overt discrimination, but also practices that are discriminatory in operation (Griggs v. Duke Power (US).

To conclude, a law that questions individual choice in marriage and faith and overpowers it with family choice continues to affect women disproportionately and must invite a challenge on this ground alone. Thus, though the effect of law on religion and privacy cannot be overemphasised, its impact on 'sex' and its societal construct forms an equally powerful basis to contest it. In a society that flourishes on hierarchy in family and marriage, equality should not only be formal and superficial, but substantive and meaningful, taking into consideration social factors surrounding the female sex.

The ordinance has been placed under a constitutional challenge in a public interest litigation filed by Anil Kumar Yadav before the Allahabad High Court and is listed for hearing on 07 January 2021; the governments of Madhya Pradesh & Himachal Pradesh have nevertheless geared up to implement similar legislation in their states.

Be that as it may, till then, we must address - why is the conversion of women more harmful to family and society and such to justify a harsher punishment? Is it any different from saying women constitute the dignity and honour of the family and must be protected? Is it not the same as giving them lesser choice in family and marriage, compared to men? Does this not reinforce and realign the existing hierarchical structures and power imbalance we face as women in the society? Does it not limit us to vagaries of our sex? Does it not discriminate us indirectly on the basis of sex?