UP’s amended anti-conversion law makes bail as hard to get as narcotics, money laundering offences

On Tuesday, the Uttar Pradesh Legislative Assembly passed the Uttar Pradesh Prohibition of Unlawful Conversion of Religion (Amendment) Bill, 2024. It makes three changes to the original 2021 anti-conversion law: it is now possible for anyone to file a complaint under the act, punishments for offences have been made more stringent, and the legal standard for securing bail for an accused has been set excessively high, on par with laws for curbing narcotics and money laundering.

The rationale for these changes? The bill’s statement of reasons said that the current act had to be made “as stringent as possible” in view of “the sensitivity and seriousness of the crime of illegal religious conversion, the dignity and social status of women, and the organised and planned activities of foreign and anti-national elements and organisations in illegal religious conversion and demographic change”.

It is unclear who the foreign and anti-national elements and organisations referred to are and what demographic change they are allegedly causing.

Passed by the legislative assembly in 2021, Uttar Pradesh’s anti-conversion law outlaws religious conversion through marriage, deceit, coercion or enticement. It further makes it compulsory for any person intending to convert their religion to inform the government at least one month in advance.

Ostensibly meant to tackle cases of “love jihad” – a conspiracy theory espoused by Hindutva groups who claim that Muslim men are forcibly converting Hindu women to Islam through marriage – the law has been used to target Muslims and Christians in the state. According to the state government’s data, between January 1, 2021, and April 30, 2023, 427 cases were registered under the act, in which 833 arrests were made.

The constitutional validity of the law has been challenged in the Supreme Court, which has not conducted a hearing in the matter since March 2023. In another case in May this year, a Supreme Court judge had remarked that the law was seemingly unconstitutional.

Despite this, the Adityanath-led Bharatiya Janata Party government in Uttar Pradesh has gone ahead with amendments that are likely to exacerbate the misuse of the law against inter-faith couples and men belonging to religious minorities.

Increased punishments

All the punishments prescribed under the act have been significantly increased through the amendments.

The penalty for any unlawful conversion under the act has been enhanced from between one and five years of imprisonment to between three and ten years of imprisonment. The minimum fine has also been increased from fifteen thousand rupees to fifty thousand rupees.

The penalty for any unlawful conversion relating to a minor, a woman or a person belong to the Scheduled Castes or Scheduled Tribes has been increased from between two to ten years of imprisonment to between five and fourteen years of jail time. The minimum fine has been increased from Rs 25,000 to Rs 1 lakh.

The punishment for mass conversions have been increased from between three to ten years of jail time to between seven and fourteen years of incarceration. The minimum fine has been increased from Rs 50,000 to Rs 1 lakh.

The amendment also introduces a new offence: that of using coercion or inducement to marry or traffic or sell any person, with the intent to convert them. This is punishable by imprisonment of at least twenty years, which may extend to life imprisonment.

Anyone can complain

Under the original act, only the aggrieved person or their relative could lodge a first information report regarding an unlawful conversion.

A study of 101 first information reports registered under the act by Article 14 last year showed that in 63 cases – that is, 62.3% of the studied cases – the complainant was not the victim or a relative of the victim. A significant number of these third-party complainants were members of Hindutva organisations.

With the amendment, such complaints will now have legal standing. This would probably lead to an increase in the number of complaints under the act.

Bail made stringent

Perhaps the most striking amendment brought into the act yesterday is the near impossibility of securing bail.

The amended bail provision said that no person accused of an offence under the act would be granted bail unless the public prosecutor is allowed to oppose bail. Further, if the public prosecutor opposes bail, the sessions court may grant bail only if “there are reasonable grounds for believing that [the accused] is not guilty of such offence” and that the accused is not likely to commit any crime if released on bail.

This is exactly identical to the bail provisions in the Narcotic Drugs and Psychotropic Substances Act, 1985 and the Prevention of Money Laundering Act, 2002. It is almost impossible to secure bail if one is accused of an offence under these act since the standard of bail is turned upside down by the language of the bail provision: the accused is presumed guilty and they have to prove their innocence in the case, before trial, at the stage of bail itself.

Article 14 studied 37 bail orders for those accused under the act granted by sessions courts between January 2021 and June 2023: it found that bail was granted in 78.3% of the cases – that is, 29 cases.

Most of the bail rejections were due to procedural lapses, including the first information report being registered by someone not related to the alleged victim.

The widened locus of complainants, combined with the increased difficulty of getting bail, would almost certainly lead to fewer bail orders being granted in such cases.

Constitutional challenge in cold storage

Soon after the act was originally pronounced as an ordinance, there were several public interest litigations filed in the Supreme Court challenging its constitutionality, as well as that of a host of similar laws passed by several other Bharatiya Janata Party-ruled states.

These petitions are presently pending before a three-judge bench of the court comprising Chief Justice of India DY Chandrachud, PS Narasimha and JB Pardiwala. However, the matter has not been heard by the bench since March 17, 2023, and there is no date set by the court for the next hearing.

Meanwhile, in a separate case involving the act being heard by a bench comprising Pardiwala and Justice Manoj Misra in May, Misra had commented in court that the “law in some part may seem violative of Article 25 [of the Constitution]”.

Article 25 prescribes the fundamental right to freedom of conscience and free profession, practice and propagation of religion.