By Dr. Abhishek Atrey
Religion is a belief system that integrates culture, teachings, practices, personal experiences, and artistic expressions which relate people to what they perceive to be transcendent. Religion has two facets which divides the world on the one hand and unites the globe in it’s own ways on the other. Still religion has always been a difficult subject to deal with.
The Idea of Religion and Indian Viewpoint
The Indian view on religion is way different from what the world perceives it to be. Religion in India not only spans from social, political, economical issues rather a sentimental issue. Religion happens to be one of the most important and decisive political factor and affects the electoral battles in a big way. Before going into the details and dynamics of religion in India one should understand the cultural and constitutional views of the nation. In fact diversity is the essence of Indian culture and that makes it beautiful. Religion has a very strong base in India and it has region – specific religious practices. Take the example of Jammu and Kashmir which has a Muslim majority while Punjab has a Sikh majority, Nagaland, Meghalaya and Mizoram have Christian majorities and the Indian Himalayan States such as Sikkim, Ladakh, Arunachal Pradesh, Maharashtra, Darjeeling, District of West Bengal have large concentrations of Buddhist population. India has sufficiently great Muslim, Sikh, Christian, Buddhist, Jain and Zoroastrian populations. Islam is the largest minority religion in India. The Indian Muslims stand at the third position as the largest Muslim population in the world which figures up to over 14 percent of the nation’s population.
The Constitution of India clearly states that India is a secular state and it further strengthened the idea of secularism by granting Freedom of Religion as a fundamental right to its citizens which is enshrined under Article 25-28 of the Constitution. The concept of ‘Secularism’ was not a part of the Constitution since its inception but later it became a part of the basic structure of the Constitution by way of the 42nd Amendment in the year 1976. As a result the word ‘secular’ was added in the Preamble of the Constitution.
However, in a landmark judgement S.R. Bommai Vs Union of India, the Supreme Court of India ruled that India was already a secular state ever since the origin of the constitution. The Constitution of India gives to its citizen the right to practice and profess their religion peacefully. However, despite the liberty granted by our Constitution there have been numerous incidents of religious intolerance which resulted in riots and violence, notably, the 1984 Anti-Sikh riots in Delhi, 1990 Anti-Hindu riots in Kashmir, 2002 Gujarat riots and the 2008 Anti-Christian riots.
History of Anti-conversion Laws
India is a land of diversity and home to number of religious beliefs and practices. It is the birthplace of four major world religions–Hinduism, Buddhism, Sikhism, and Jainism. According to reported 2011 census data, 79.80% of the population of India is Hindu, 14.23% Muslim, 2.30% Christian, 1.72% Sikh, 0.70% Buddhist, and 0.37% Jain.
The anti-conversion laws are an age old practice in the Indian subcontinent. The laws that restricted the religious conversions were originally brought upon by the Hindu princely states during the British Colonial period especially during the latter half of the 1930s and 1940s. Immediately after India got independence, the Parliament introduced a number of anti-conversion bills, but none saw the light of the day. Firstly, the Indian Conversion Regulation and Registration Bill was introduced in the year 1954 which called on to enforce the licensing of missionaries and the registration of conversion with government officials. The said bill could not gather the majority support in the lower house of Parliament and was rejected by its members. After this bill failed another bill was introduced by the of the Backward Communities (Religious Protection) Bill in 1960. The Backward Communities (Religious Protection) Bill aimed at checking the conversion of Hindus to ‘non-Indian religions’ which according to the definition given in the Bill, included Islam, Christianity, Judaism and Zoroastrianism,’ and the Freedom of Religion Bill in 1979 which sought ‘official curbs on inter-religious conversion.’These bills were also not passed by Parliament due to a lack of parliamentary support.
BJP government has shown its interest for adoption of an anti-conversion law at the national level but the same got stalled as the Ministry of Law and Justice advised against the move stating that it is “purely a state subject’ which falls under Entry 1 i.e. Public Order of State List in 7th Schedule of the Constitution. However in my opinion since there is no entry in any of the three lists by the name of religion or conversion, this subject can also fall under entry 97 of Union List i.e. residuary powers of the Central Government and on that Parliament can also make laws.
The Freedom of Religion Acts or ‘anti-conversion laws’ are state-level statutes enacted to regulate religious conversions that are not purely voluntary. After failed attempts at the Union or Central level, such laws were first enacted by the State of Orissa and Madhya Pradesh. Initially in the 1980s, the target of anti-conversion legislation was largely Muslims seeking to convert non-Muslims but later in the 1990s even Christianity began to receive more attention since 1990s because of its association with Western-style colonialism and the role active proselytizing that plays in the course of being a good Christian. The State laws though have some variations but they are very similar in their content and structure. These laws aim to constrain the ability of communities and individuals to convert ‘from the religion of one’s forefathers,’ often in the name of protecting those making up the ‘weaker’ or more easily ‘influenced’ sectors of society—namely women, children, backward castes and untouchables. The underlying idea of all of these laws is to prevent conversions ‘carried out’ by ‘forcible’ or ‘fraudulent’ means or by way of ‘allurement’ or ‘inducement’. The laws also speak about the penalties that could be imposed on breaching the laws which may range from monetary fines to imprisonment. Some of the laws provide for stiffer punishments if women, children, or members of scheduled castes or schedule tribes (SC/ST) are being converted.
Orissa and Madhya Pradesh
The Orissa Freedom of Religions Act, 1967 was enacted in 1967 which states that no person shall convert or attempt to convert either directly or otherwise any person from one religious faith to another by the use of fraud, force, allurement or inducement and nor shall any person abet any such conversion. The contravention of this law would amount to punishment with imprisonment of up to one year or a fine of up to Rs 5,000. If it is the case of a minor, a woman, or a person belonging to a scheduled caste or tribe, the punishment can be of two years of imprisonment and the limit of the fine raised to Rs. 10,000. The Orissa High Court, however, struck down the Act as unconstitutional on the ground that the state legislature did not have the right to legislate on matters of religion. In the same year, the State of Madhya Pradesh also enacted Madhya Pradesh Dharma Swatantraya Adhiniyam 1968.
However, the Madhya Pradesh High Court contradicted the Orissa High Court and negated the challenge of some Christians that the Act violated their fundamental right as provided under Article 25 of the Constitution. The decisions of both the Courts were challenged before the Supreme Court, but the 5 Judge Constitution Bench of the Supreme Court upheld the decision of the Madhya Pradesh High Court and reversed the decision of the Orissa High Court in the case of Rev. Stainislaus v. State of Madhya Pradesh 1977 (1) SCC 677 and upheld validity of both Orissa Freedom of Religions Act, 1967 and Madhya Pradesh Dharma Swatantraya Adhiniyam 1968 by saying that right to propagate one’s religion cannot impinge on the freedom of conscience of other citizens and it does not grant right to convert another persons to one’s own religion.
The High Court cases in Orissa and Madhya Pradesh were followed by a number of anti-conversion legislations. The states in which laws with respect to anti-conversion were implemented included of Andhra Pradesh, Tamil Nadu, and Arunachal Pradesh as well in 1978. The anti-conversion provisions of the State of Arunachal Pradesh are contained in the Arunachal Pradesh Freedom of Religion Act, 1978. These laws are similar to those enacted in Orissa and Madhya Pradesh. The said law was passed in view of the perceived threat to aboriginal religions received the consent from the President on October 25, 1978. However, it could not be enforced till date because the government has not yet framed the rules needed to implement it.
The State of Chhattisgarh was partitioned with the south eastern districts of Madhya Pradesh and established in November 2000. Chhattisgarh retained the anti-conversion laws of State of Madhya Pradesh and adopted it under the title Chhattisgarh Freedom of Religion Act, 1968. It also retained the subsidiary rules for implementation of the Act. Later in the year 2006, the state legislature amended this Act to make it more stringent.
The Tamil Nadu Prohibition of Forcible Conversion of Religion Act 2002 stated that no person shall convert or attempt to convert directly or otherwise any person from one religion to another either by use of force or by allurement or by any fraudulent means. However, soon after the defeat of the Bhartiya Janata Party-led coalition in the 2004 elections, the Tamil Nadu Government led by Jayalalitha repealed the law.
The Gujarat Assembly passed the Freedom of Religion Act,2003 in March 2003. It was called the Dharam Swatantrata Vidheya-Freedom of Religion Act. The then Chief Minister of the State and now our Prime Minister Narendra Modi called the Act as one of the main ‘achievements’ of his government’s one year in office. The law prohibited conversion by force or inducement.
On November 20, 2017 a decision was given by the High Court of Uttarakhand in the context of a habeas corpus petition suggesting that the state government should enact an anti-conversion law like that of State of Madhya Pradesh. The Court noted that this case was not the first it had considered involving inter-religious marriages, and that in some of these cases conversion was a simulation undertaken to facilitate the process of marriage. In order to curb this tendency, the State Govt. is expected to legislate the Freedom of Religion Act on the analogy of Madhya Pradesh Freedom of Religion Act, 1968 as well as Himachal Pradesh Freedom of Religion Act, 2006, without hurting the religious sentiments of citizens. Four months after the order of the High Court, the state government submitted the bill in the State Assembly on March 21, 2018. The bill was passed by the Assembly and signed by the Governor on April 18, 2018 and came in existence as Uttarakhand Freedom of Religion Act 2018.
Himachal Pradesh, Rajasthan and Jharkhand
The Himachal Pradesh Freedom of Religion Act, 2006 is a prototype of the existing anti-conversion laws in other Indian states and it was enforced on February 18, 2007. The State of Rajasthan also passed an anti-conversion bill in 2006 by the name Rajasthan Dharma Swatantraya Bill, 2008 but it could not receive the assent from the Governor of the State at that time however it was again passed by Legislature in 2008. The Jharkhand Legislative Assembly passed the Jharkhand Dharm Swatantra Bill, 2017 also known as the Jharkhand Freedom of Religion Bill, 2017 on August 12, 2017.
The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, was passed by UP Government on 28 November 2020 which is a much debated law now a days and is being treated as a law against Love Jihad. This Ordinance provides punishment upto 10 years for violation of its provisions along with other sanction. It targeted religious conversion under two circumstances. First being the situations of conversion through fraud, misrepresentation or coercion largely unproblematic, since similar provisions can also be found in other existing State laws of different States. While the second circumstance is about the conversion ‘done for the sole purpose of marriage’. Section 6 of this Ordinance declares that the marriages done for the sole purpose of unlawful conversion or vice versa shall be declared void. This is actually brimming with controversy.
Conflict with Judgments and Special Marriage Act
The recent UP Ordinance is now seen as in conflict of the Allahabad High Court’s recent judgment in the case of Sufiya Sultana V. State of U.P.2021 SCC Online 19 dated 14.12.2020 which done away requirement of mandatory publication of notice and inviting objection under section 5, 6 and 7 of the Special Marriage Act, 1954 by declaring those provisions as declaratory and not mandatory being in violation of right to privacy of citizens, which is declared as fundamental right by a 9 Judge Bench of the Supreme Court in the case of K.S. Puttuswamy.
The Supreme Court in landmark judgements of Lily Thomas V. Union of India 2000 (6) SCC 224 and Sarla Mudgal V. Union of India 1995 (3) SCC 635 has confirmed that religious conversions carried out without a bona fide belief and for the sole purpose of deriving some legal benefit are illegal and do not hold water. These cases concerned religious conversions by Hindu men to Islam in order to conclude bigamous marriages.
The legal principle enshrined in these cases is applicable to situations of religious conversion carried out purely for the sake of marriage. The Special Marriage Act, 1954 already permits interfaith marriage which a legal right that the Uttar Pradesh government cannot meddle with but it places tangible consequences for the parties to such a marriage in terms of succession. Thus for a Hindu, the law automatically enforces a partition from the individual’s undivided family which deprives them of any potential accrual to such property subsequent to the marriage whereas for a Muslim, the law states inheritance to be conducted through the Indian Succession Act, 1925 rather than under Muslim personal laws following an interfaith marriage; the latter being more advantageous to a Muslim man.
Hence, the act of converting solely for the purpose of marriage so as to avoid the impact of the Special Marriage Act provides a discernible legal benefits and can arguably be struck down by the dicta in Lily Thomas and Sarla Mudgal. Moreover, the Supreme Court, in Stainislaus case has already held that the act of religious proselytization is not protected by Article 25 of the Constitution. Therefore, its difficult to argue that the UP legislation is unconstitutional for curtailing religious conversions conducted purely for the purpose of marriage. It is further affirmed by the continued and unchallenged existence of identical legislation in states such as Uttarakhand and Himachal Pradesh.
Religious thoughts and beliefs are important factors for shaping up human conduct. The world at present is going through several crisis and one of them happens to be the war fought in the name of religion. The issues relating to religious freedom acquire a certain degree of sensitivity which a state has to respect but state also has the duty to preserve peace in the society and thus it becomes imperative for the state to regulate certain activities of the individuals. Maintaining a balance between individual freedom and community interest is actually a challenge for any democratic government. So if we discuss the concept of religious freedom in the backdrop of conversion we find that the right to change religion is inherent in the right to freedom of conscience guaranteed under Article 25 of Indian Constitution as well as Article 18 of UDHR and ICCPR. Right to change religion encompasses within its fold the right to choice of religion. By dint of Article 18(2) of the ICCPR, no person could be made susceptible to extreme persuasion that may infringe upon the freedom to maintain his chosen religious identity. Though there are few religions in which propagation as a means to convert others is central to a particular religion that does not imply that this right is absolute. Restrictions can still be put regulating such right of conversion as per the freedom of religion enshrined under Article 25(1) – the weakest constitutional guarantee. However, if an individual willingly converts to another religion the state has to ensure that his new religious identity does not become the cause for disruption in society rather it is the duty of the state to protect him along-with the entire social fabric of the society. Hence, the state is under obligation to respect and protect the rights of the individual. The Freedom of Religion is quintessential for the complete development of human intellect and personality,but this cannot be the sole criterion for striking down the Acts as unconstitutional.
The author is Advocate on Record, Supreme Court of India