This article has been written by Aryan Bhat and Vaibhav Yadav, 2nd year students at NLU Delhi
On November 28, 2020, the Government of Uttar Pradesh promulgated the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 (The ordinance). The ordinance has been vehemently criticized for being violative of the constitutional right to one’s individual freedom of religion, a natural corollary of which is also to convert to another faith and the right to marry a partner of one’s choice under article 21. A writ petition in this regard was also filed before the Apex Court, challenging its constitutional validity for which notice had been issued to the concerned State. As the matter is currently pending, authors in this piece argue that the impugned laws are antithetical to the constitutional jurisprudence on another ground: sex equality under article 14 and article 15 of the Constitution. The piece seeks to establish how the impugned ordinance violates article 15(1) and 14 of the Constitution and is also not rescued by 15(3) as a “special provision for women” either.
Equality and Women
In order to rightly understand the implications of the ordinance it is vital to first shed light on how articles 15 and 14 are understood in the light of sex equality.
Equality, as a term has always been fiercely contested but historically, it has been understood in the Aristotelian sense: that a group of citizens who are “equals” ie. similarly placed shall be treated equally while the “unequals” shall be treated differently. In India this understanding of equality was approved by the Supreme Court in E. P. Royappa vs State Of Tamil Nadu. So, if two individuals are similarly placed in terms of status, opportunity, resources or in any other respect but are treated differently, the principle of equality is violated. However, if the two individuals are different in some respect and are treated differently by the State provided that the differential treatment bears some nexus to achieve a legitimate aim then Article 14 and 15 of the Constitution are not violated.
This is where equality law has failed to ensure parity between men and women in the public space as courts have often taken a paternalistic stance towards women and highlighted some existing differences, either social (by commenting upon the standard behaviour of an “ideal woman”) or biological (say pregnancy), to uphold a piece of legislation disadvantageous towards the latter.
Upholding Gender misconceptions- The ordinance and problematic precedents
Equality Law shall seek to dismantle the existing social hierarchies by providing the discriminated a chance to come at par with the perpetrators of discrimination. It has to be understood that bringing women at an equal pedestal does not mean that women should be treated as docile, submissive or weak and therefore in a situation where they have to be protected. It seems to be the stance of the ordinance that the victims of forced conversion can only be women.
This is conveyed by the language of the ordinance as well as the fact that it provides for an enhanced punishment when the person converted is a woman. A reading of section 6 of the ordinance shows that it is motivated by the belief that a woman can be converted very easily, a man can easily force her to convert and that a situation where a woman can influence a man to change his religion is ordinarily inexistent. This is also conveyed by the presence of the phrase ‘by converting the woman before or after marriage’ and the absence of an equivalent phrase which could have covered the opposite possibility.
It may appear that this is a special provision for women and is protected by article 15(3). However, if the ordinance is viewed in such a manner then it makes the situation quite similar to how section 497 (adultery) was viewed in the now overruled decisions of Yusuf Aziz and Sowmitri Vishnu. In Sowmithri Vishnu v Union of India, the Supreme Court held in favour of constitutionality of section 497, IPC (Adultery) under articles 14 and 15, reasoning that a woman is incapable of committing the offence of adultery as in an illicit relationship, “she can only be a victim and not the author of the crime”. Earlier, in Yusuf Aziz v State of Bombay, the Court had termed section 497 to be constitutional as the differential treatment of women by not allowing them to be punished as an abettor in the offence is a “special provision” for them under article 15(3). These judgments were problematic as they implied that a woman, is likely to be carried away by the blandishments of a man while the opposite is not true. It further takes a paternalistic approach that the impugned section exists to protect a woman from the advances of a man, and thereby associates a married woman with naivete and lack of sexual autonomy.
These decisions establish how quite often, perceived differences between a man and a woman, largely a product of patriarchal mindset, have been invoked by the Court to pronounce in favour of constitutionality of a statute that places women subserviently.
Repeating the history- Disparate impact
Marriage has always been a way by which different sections of society seek to regulate their composition. Though the restrictive notions of the society pertaining to marriage restrict the liberty of both men and women, a comparatively high burden is placed upon women as women are expected to be child-bearers and therefore considered crucial for lineage. History has seen the use of anti- miscegenation laws which prohibited the mixing of different races by oppressive regimes in different parts of the world. Though it was attempted to show that the point of interest behind these laws was maintaining an overall rift between the black and white races, the real purpose was to specifically protect white women from indulging in sexual activities with black men in order to maintain racial purity. The UP ordinance simply replaces this threshold of race with that of religion. By providing for a two-month advance notice for conversion and publication of the same, the ordinance makes it practically impossible for women from one religion to marry a man of another religion, due to societal harassment and therefore poses similar impediments to that in the Special marriage Act which has also been observed by the Allahabad HC while reading down the same.
It is also important that facial neutrality of a statute is not equated as real equality. Even if it is argued that the ordinance has an object of applying equally to both men and women, it must pass the impact or effect test as laid down in Navtej Singh Johar case which requires an actual operational analysis of the impact which a statute could lead to. Justice Chandrachud in the case observed that facially neutral action by the state can have a disproportionate impact on a particular class/section and therefore in its functioning will discriminate against such sections. The pattern of cases so far filed under the ordinance gives an insight into its impact. In 12 of the 14 cases filed (till 9th January) the complainants were the relatives of the concerned woman (a hindu). This shows that the ordinance is a legitimized tool in the hands of conservative families to restrict the choice of women in the context of marital liberty.
Ordinance antithetical to liberating decisions
An alternate construction of equality was recognised by the Supreme Court in Anuj Garg v Hotel Association of India. In this case, the Court struck down section 30 of the Punjab Excise Act which barred the employment of women in the liquor industry, ostensibly for their own physical security. The Court struck down the impugned section for being violative of gender equality and women’s right to trade and profession under article 19(1)(g). The Court argued that the law was fixated upon “incurable notions of stereotype morality” where women are treated as victims of discrimination than protecting them from it. The judgment laid down that any legislative interference with the personal freedom of a woman relative to a man shall not perpetuate the existing presumed sex differences that place them in economic or social inferiority. It therefore, is landmark in this regard as it primarily lays down (i) that the judicial scrutiny of any legislation shall focus not only upon the intent and aim but more as to how it actually impacts a certain class of citizens and (ii) that any legislation shall not be based upon the existing gender stereotypes which place women at a lower pedestal than men.
More recently in Joseph Shine v UOI the precedent set in Sowmithri Vishnu and Yusif Aziz was set aside. It was observed by the Supreme Court that exempting women from criminal prosecution under section 497 implies that she has no sexual agency and was seduced into a sexual relationship. Such imputation by the section places women in a cage. Article 15(3) cannot protect such statutory provisions which are built upon paternalistic and patriarchal notions in the garb of protecting women, the Court ruled. Similarly the UP ordinance, through its vague language in a way, seems to exempt women from liability for converting a man and is therefore against the spirit of Article 15(3).
Need for a renewed understanding of sex equality
Article 15 of the Constitution lays down that State shall not discriminate on grounds only of sex, caste, religion, race or place of birth. The word “discriminate” is crucial to understand the intent of the framers behind the incorporation of this provision in the Constitution. Discrimination, it is pertinent to highlight, is not synonymous with mere differential treatment between two or more social groups. It shall rather be understood as a systemic form of disadvantageous treatment, where the disadvantaged group is placed at a position of subversion over the group which generally perpetuates discrimination. The UP ordinance is inconsistent in the light of this understanding. The phrase “special provisions for women” shall be interpreted in the light where any preferential treatment to women relative to men is therefore, not discrimination in the jurisprudential sense. The phrase rather means that the State shall make laws which enable women to secure more access in the public spaces which have historically been male-dominated. This interpretation is sound not only because it is more realistic in accounting for the present socio-economic inequalities in the society but also enables a transformative and a more expansive reading of Part III of the Constitution.
The authors, in this piece submit that the ordinance is not only against the evolving jurisprudential understanding of sex equality but also against the recent progressive judgments by the Supreme Court. It is wrong to justify such provisions as a special provision for women because it reinforces the stereotypes that she is always a victim, devoid of sexual agency and sustains the notion that men continue to be the dominant members of the society. For such reasons the ordinance apart from the ideal of religious freedom also does not stand the test of constitutionality under Articles 14 and 15 of the Constitution.