Laws passed by States must be cleared by the Centre before President’s nod.
The ordinance on unlawful religious conversions, promulgated by the Uttar Pradesh government last year, has not been sent to the Centre for examination, according to a reply from the Union Home Ministry to a query under the Right to Information Act (RTI).
The Ministry of Home Affairs (MHA) examines bills passed by State assemblies that are repugnant with Central laws before they get the President’s assent to become a law.
A similar legislation passed by the Rajasthan Assembly in 2008 under BJP government then, is still pending with the MHA and is yet to receive the President’s nod as the MHA found that it deviated from national policy and sought clarification from the State government.
Article 213 of the Constitution under which U.P. Governor Anandiben Patel promulgated the ordinance says the Governor shall not, without instructions from the President, promulgate any such ordinance if a bill would have “required the previous sanction of the President” for introduction in the Legislature.
MHA sends State bills for inter-ministerial consultation before they get the President’s nod, only in the following circumstances — when it has repugnancy with central laws, deviates from national or central policy and when it can be challenged for legal and constitutional validity.
The controversial ordinance — the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, — was promulgated in November and so far more than 90 people, most of them Muslims, have been booked. The law makes religious conversion a non-bailable offence, inviting penalties of up to 10 years in prison if found to be effected for marriage or through misrepresentation, force, undue influence, coercion, allurement or other alleged fraudulent means.
According to the Ordinance, in case of conversion done by a woman for the sole purpose of marriage, the marriage would be declared null and void.
According to procedures, the Ordinance will have to be ratified within six weeks of the commencement of the U.P. Assembly, as and when it is convened. It has already been challenged in the Allahabad High Court.
The Supreme Court earlier this month agreed to examine the constitutional validity of a spate of laws enacted by States such as Uttar Pradesh and Uttarakhand that criminalise religious conversion via marriage and mandate prior official clearance before marrying into another faith.
The Hindu had filed two RTI enquiries to know the status of the recently promulgated U.P. ordinance and the similar Rajasthan Dharm Swatantraya Bill or the Religious Freedom Bill passed by the Rajasthan Assembly in 2008.
To a question on whether the U.P. Governor had sent a copy of the Uttar Pradesh Ordinance to the MHA and if the Ministry had examined and found it to be repugnant with any central law, the MHA replied, “It is informed that Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 has not been received in our office, hence no information can be provided.”
Regarding the Rajasthan Religious Freedom Bill, the Ministry said, “The Rajasthan Dharm Swatantraya Bill, 2008 was received in the Ministry for assent of Hon’ble President of India. The same is under process.”
The Rajasthan Bill has provision for prison terms of up to five years. It also contains a clause for cancellation of registration of organisations held guilty for abetting conversions. The Bill, which was sent for President’s approval in 2006 too, was returned by then President Pratibha Patil.
A similar Bill of the Chattisgarh government — Dharma Swatantraya Sanshodhan Vidheyak, 2006, has also been pending with the State government after Centre sought clarifications. The Bill has contentious clauses, which says the return of a person to his ancestor’s religion shall not be construed as “conversion.”