Guest Post: Analysing The Constitutionality of The Reverse Onus Clause In The Uttar Pradesh ‘Love Jihad’ Law

(This is a guest post by Ishika Garg and Shamik Datta)

In February, 2021, the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021 (Hereinafter “the Law” or “the Uttar Pradesh Law”) was passed by the Uttar Pradesh State Assembly. Section 3 of the Uttar Pradesh Law lays down the offence punishable under the legislation, and reads as: 

“No person shall convert or attempt to convert, either directly or otherwise, any person from one religion to another by use or practice of misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage nor shall any person abet, convince or conspire such a conversion”

In relation to this offence, the contentious Section 12 of the Law crafts a reverse onus clause. The clause reads as follows: 

“The burden of proof as to whether a religious conversion was not effected through misrepresentation, force, undue influence, coercion, allurement, or by any fraudulent means or by marriage, lies on the person who has caused the conversion and, where such conversion has been facilitated by any person, on such person.”

A reverse onus clause can be understood as one that places the burden of proof upon the accused once the prosecution establishes certain foundational facts. In the absence of such a clause, the onus would be on the prosecution to show that the conversion was coercive. However, in the present case, this clause would require the accused to prove that the conversion was consensual, as long as the prosecution establishes the basic foundational fact of the occurrence of the act of conversion. In this post, the authors shall analyse the constitutionality of this clause by subjecting it to the four-fold test laid down by Justice Gupte in his separate opinion, in the case of Shaikh Zahid Mukhtar v. State of Maharashtra [(2017) 2 AIR Bom R 140]. In doing so, the authors shall rely on various judgements that have upheld the constitutionality of reverse onus clauses in other statutes. 

An analysis of the clause, through Justice Gupte’s four-fold test.

Justice Gupte laid down the four-fold test to scrutinise the constitutionality of reverse onus clauses, on the anvil of the fundamental rights of equality and liberty enshrined under Article 14 and 21 of our Constitution (Paragraph 213, Pages 231-232). The four conditions stressed upon were as follows -

1. Is the State required to prove enough basic or essential facts constituting a crime so as to raise a presumption of balance of facts (considering the probative connection between these basic facts and the presumed facts) to bring home the guilt of the accused, and to disprove which the burden is cast on the accused?
2. Does the proof of these balance of facts involve a burden to prove a negative fact?
3. Are these balance facts within the special knowledge of the accused?
4. Does this burden, considering the aspect of relative ease for the accused to discharge it or the State to prove otherwise, subject the accused to any hardship or oppression?

We shall now examine the clause through each prong of this test. 

The first condition of the test requires the prosecution to establish certain basic foundational facts which must have a rational connection with the presumed facts, in a way that makes the latter highly probable. This presumption of ‘balance of facts’ (considering the probative connection between the basic facts and the presumed facts) is a prerequisite for presuming the guilt of the accused. In the landmark case of Noor Aga Khan v. State of Punjab [(2008) 16 SCC 417], the Supreme Court upheld the constitutionality of Sections 34 and 54 of the Narcotics Drugs and Psychotropic Substances Act, 1985. The presumption of guilt only arises, when the prosecution proves certain foundational facts, which would shift the burden on the accused to rebut this presumption. 

This crucial requirement of proving foundational facts was reiterated in Dharampal Singh v. State of Punjab [(2010) 9 SCC 608] and Bhola Singh v. State of Punjab [(2011) 11 SCC 653]. The evidence presented by the prosecution must have probative value, which essentially means that it must sufficiently point towards the conclusion that the accused committed the crime. Only when the prosecution satisfies this standard can it be considered just for the accused to displace such presumption of guilt. In the context of NDPS, this standard of proving initial facts would be satisfied once the prosecution established that firstly, there was contraband and secondly, that the same was in the conscious possession of the accused. Similarly, in the recent case of Justin @ Renjith v. Union of India, the Kerala High Court stressed on the importance of necessitating the prosecution to prove certain foundational facts such as the age of the victim, and the occurrence of the alleged incident, in order to uphold the constitutionality of the reverse onus clause in the Protection of Children from Sexual Offences Act, 2012. 

Contrary to this requirement of establishing basic facts, the Uttar Pradesh Law presumes the guilt of the accused without the establishment of a probative connection between the basic facts and the criminalised act of religious conversion. This is because the only foundational fact to be established in the present case is that of there having been a conversion. In our view, this fact alone is not sufficient to establish a probative connection in this regard. To better understand the problem associated with shifting the burden of proof under the Law without the establishment of a probative connection, we must turn our attention towards the numerous instances where the Law has been misused. From these instances, it becomes clear that even in cases where the conversion took place with the consent of the ‘victim’, the accused has had to face an FIR lodged by the family members of the converted person, or a third party. When such is the ground reality, one must question the absence of proving the non-consensual aspect of conversion from the ambit of the basic foundational facts. The mere fact of there having been a conversion, without establishing the non-consensual nature, cannot suffice to establish the probative connection between the facts and the criminalised act under the Law. Therefore, the Law does not rationalise the connection between the basic and presumed facts and hence, does not fulfil the first condition laid out in the four-fold test.

In P.N. Krishna Lal v. Govt. Of Kerala [1995 Supp (2) SCC 187], the Supreme Court recognised that the casting of burden of proof on the accused cannot be allowed when such presumption is raised in relation to the proof of negative facts. Building on this, the second condition of Justice Gupte’s test enquires whether the aforementioned ‘balance of facts’ involves a burden to prove negative facts. The Uttar Pradesh Law criminalises conversion via ‘misrepresentation, force, undue influence, coercion, allurement, or by any fraudulent means or by marriage’. Section 2(a) of the Law defines ‘allurement’ as:

(a) Allurement means and includes offer of any temptation -

(i) any gift, gratification, easy money or material benefit either in cash or kind.

(ii) employment, free education in reputed school run by any religious body; or

(iii) better lifestyle, divine displeasure or otherwise;

In the present case, the negative fact to be proved by the accused is that no allurement occurred due to their actions. Broad terms like ‘allurement’ and ‘any temptation’, once alleged by the prosecution, require an analysis of the mind of the victim at the time of the commission of the offence, on the basis of whether the party actually felt ‘tempted’ by the actions of the accused. Even if the test of preponderance of probabilities is applied, it is unthinkable how the accused can reasonably or fairly be expected to disprove this subjective feeling of temptation, once alleged by the prosecution. Such a burden imposes an unreasonable standard of proving negative facts on the accused. 

On this account, the Uttar Pradesh Law also fails the third condition of the test which requires the balance of facts to fall within the special knowledge of the accused. As argued by the authors, the proving of negative facts does not lie within the special knowledge of the accused in the kind of situations dealt with by the Law. As emphasised in Justin @ Renjith v. Union of India, Parliament is justified in reversing the burden of proof in context of aspects which lie exclusively within the domain of the accused’s knowledge. This case is distinguishable in the present discussion, as it deals with sexual offences committed under the Protection of Children from Sexual Offences Act, 2012. The rationale for such justification was based on the fact that there may not be any eye witness to the incident committed. However, this rationale cannot be deemed to apply in a fool-proof manner in the context of religious conversions, and the authors argue that no other comparable justification is present either. 

It is undisputed that the reversal of burden of proof can only be allowed in those cases where it is evident that there exist certain special facts within the knowledge of the accused, which he can prove or disprove easily. Knowledge, or mens rea, is imputed to the accused in cases such as those of possession of firearms, where mere possession leads to presumption of a harmful purpose [Shaikh Zahid Mukhtar]. However, merely proving the basic foundational fact that a religious conversion took place, cannot be deemed to be in furtherance of a harmful purpose. This is because in multiple cases of religious conversion, it has been noted that the accused had the consent of the converted person, which is not an offence punishable under the Uttar Pradesh Law. The mere proof of conversion does not lead to a presumption that the act was in furtherance of an unlawful, let alone a harmful purpose. Thus, the standard for imputing knowledge to the accused is not satisfied in the present case. With this in mind, the Uttar Pradesh Law fails to fulfill the third condition of the test. 

This leads us to the fourth condition of the test, which enquires whether the burden of proving innocence will subject the accused to any hardship or oppression. In addition to the distress mentioned above, there is also a psychosocial aspect to be considered. In India, religious conversions are widely associated with social stigma and seen as ‘immoral’. This leads to the viewing of the accused as a ‘wrong-doer’, even when the conversion is performed with the consent of the converted person. This situation is further exacerbated when the Law is misused extensively by the prosecution. The justification of reverse onus clauses in light of ‘easier convictions’ cannot be accepted as a higher conviction rate could only increase the possibility of wrongful convictions. A conviction under a reverse onus clause does not necessarily signify guilt, and may just be the undesired result of the accused not being able to satisfy the high standard of proof he is burdened with. An example of the possibility of such wrongful convictions is found in a recent case, where the government explicitly admitted that it did not possess the requisite evidence to prosecute two Muslim men accused of converting a Hindu woman. The woman supported the men, stating that her husband had wrongfully tried to frame them because they supported her when she faced domestic violence from her husband. In all such cases, the hardship faced by the accused is evident and it is clear that the Law does not meet the fourth condition of the test. 

Conclusion

When assessing the validity of Section 12 of the Law, ignoring the inextricable link between constitutional and criminal law would be a grave mistake. The above analysis of the reverse onus clause under the Law, leads to the conclusion that the Law fails to meet the criteria of the four-fold test. Moreover, the rationale behind the law of curbing ‘unlawful conversions’, cannot be justified when analysed in comparison to reverse onus clauses in other statutes, whose constitutionality has been previously upheld by the court. In light of these considerations, the authors believe that the reverse burden of proof clause needs to be reconsidered.