The three cases relate to incidents that occurred before promulgation of ordinance, despite Constitution saying law can’t be applied in this way.

BHADRA SINHA and PRASHANT SRIVASTAVA 12 December, 2020 10:03 am

New Delhi: In the first 10 days since the Uttar Pradesh government passed an ordinance to make so-called ‘love jihad’ illegal, the state police filed five cases of “forceful conversion for marriage”.

But in three of the five cases, the alleged crimes were committed before the promulgation of the law, which means it is unconstitutional to prosecute them under the controversial law.

The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, was signed by Governor Anandiben Patel on 28 November. It was formulated four days earlier by CM Yogi Adityanath’s BJP government, against “forced” and “fraudulent” religious conversion.

The ‘anti-love jihad law’, as it is commonly known, describes such marriages as a conspiracy to convert Hindu women through allurement and promise of love. It makes forced religious conversions a non-bailable offence, and a person found guilty can be sentenced to a maximum of 10 years of jail.

Legal experts ThePrint spoke to said unless a complaint explicitly mentions the incident took place after the new law’s notification, the police can’t apply the law. Unlike civil laws, particularly those related to tax, there cannot be back-dated implementation of a penal law, a principle reinforced by the Supreme Court in a series of decisions.Video Player is loading.

Justice (retd) Aditya Nath Mittal, chairperson of the UP State Law Commission, told ThePrint: “Those sections of the new ordinance should be added only on cases reported after 28 November, not before it. If someone adds those sections to old cases, then there are chances these sections will get quashed in the court.”

Prashant Kumar, the state’s additional director general of police (law and order), said instructions are clear — that the law will not be misused. He agreed there cannot be retrospective implementation.

“If anybody thinks something wrong has been done and someone is falsely implicated, then we will take action. We will take corrective measures,” he told ThePrint.

The cases

The UP Police have registered two cases of alleged forced conversion or ‘love jihad’ in Bareilly and one each in Sitapur, Moradabad and Mau.

The first case was reported on 2 December from Bareilly, where a man named Uwais Ahmad was arrested on a complaint filed by a father, alleging he “coerced, coaxed and allured” his daughter into converting to Islam. The complaint was filed within hours of the governor’s assent. The FIR, which ThePrint has accessed, does not mention the date of the crime, and simply accuses Ahmad of threatening the girl’s family. However, Ahmad claims he was not in touch with the girl who got married in June, so the legal validity of the FIR comes into question.

The second case in Bareilly is of a matrimonial dispute, where a Hindu woman has accused her Muslim husband of luring her into marriage, calling it ‘love jihad’. She got the case registered under IPC sections, including rape, on 27 November. The woman went to the police after almost a year living with the husband, when he allegedly refused to go for registration of marriage. In this case, the police refused to add charges from the new ‘anti-love jihad’ ordinance, because the alleged crime was committed before it came into effect.

But in similar cases in Sitapur and Moradabad, the ordinance has been applied. On 5 December, the police arrested seven persons under the anti-conversion law in Sitapur for allegedly abducting a 19-year-old woman. Here, the case was filed on 26 November, two days after the alleged crime and two days before the law was notified, on a complaint by the girl’s father.

In Moradabad, a Muslim man and his brother were arrested on 6 October after he and a 22-year-old Hindu woman tried to get their marriage registered in the district’s Kanth area. The woman’s statement that she willingly got married five months ago clearly bars the police from invoking the new law.

The case in Mau is the only one that is likely to get covered under the ordinance. Fourteen persons have been arrested for allegedly abducting a 27-year-old girl on the eve of her wedding on 30 November.

Also read: UP not first to target ‘love jihad’, 2 states have law against forced conversions for marriage

What the local police say

Confusion prevails in the second case in Bareilly, with media reports projecting it as a case of ‘love jihad’, but the police insisting they cannot invoke provisions of the new law because the alleged incident took place before it was promulgated. But that does not square with the other case in the district, or those in Sitapur and Moradabad.

Rajeev Dixit, additional superintendent of police for Sitapur (North), refused to comment. “I would not like to say anything,” he said when contacted by ThePrint.

The public relations officer of Moradabad’s SSP denied that the police have added sections of the new ordinance in old cases. When told the FIR registered in the district related to a five-month-old inter-faith marriage, he said: “We got the complaint after 28 November.”

Bareilly zone Deputy Inspector General Rajesh Pandey also denied the retrospective application of the law. “If someone is trying for forceful conversion after the ordinance came, then only his/her complaint will be considered under it,” he insisted.

Legal position 

Section 3 of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance prohibits unlawful conversion for marriage or conversion by marriage.

Section 6 says a marriage done for the “sole purpose” of “unlawful conversion” or vice-versa will be null and void.

Section 11 allows initiation of criminal action for an offence “committed under this ordinance”. And, like any criminal law, according to Section 12 the burden of proving that religious conversion was not affected through misrepresentation is on the person who “caused” or “facilitated” the conversion, and not the one who converts.

But the retrospective application of these sections to the three cases goes against Article 20 of the Constitution.

Article 20 (1) reads: “Protection in respect of conviction for offences — no person shall be convicted of any offence except in violation of a law in force at the time of the commission of the act charged as an offence, nor be subject to a penalty greater than that which might have been inflicted under the law in force at the time of the commission of the offence.”

A law can only be applied retrospectively if it is amended so as to benefit the accused in some way, or unless it is clearly mentioned that it can.

Supreme Court advocate Saurabh Kripal called the arrests “abhorrent”.

“From the time of the Magna Carta, the law has prohibited persecution for an act which was not an offence at the time it was committed. This most basic principle of law has found its place as a fundamental right guaranteed by Article 20 of our Constitution,” Kripal said.

“No citizen would be free to lead a life free from fear when any act of hers could at some point of in the future be declared a crime,” he said, adding that any attempt to prosecute persons for a marriage or a religious conversion that happened prior to the promulgation of the ordinance is not merely illegal but unconstitutional.

Advocate Gyanant Singh concurred, saying what the UP Police has done is “definitely against the well-established criminal jurisprudence”.

In June this year, a Supreme Court bench led by Justice Sanjay Kishan Kaul had, for the same reason, refused to award death penalty to a convict who committed rape and murder of a nine-year-old child last year in Telangana. This crime was committed nearly two months prior to Parliament’s amendment of the POCSO Act to prescribe extreme sentences for such acts.

“This judgment is one of the several Supreme Court decisions that clarify the law on this issue. The date of offence is extremely crucial to invoke a penal law,” Singh pointed out.

courtesy The Print