Explainer: Karnataka anti-conversion law: The legality of other such laws

Dec 22, 2021 07:49 PM IST

The issue of anti-conversion laws has sparked debate on their constitutionality and necessity in a constitutional democracy

The Basavaraj Bommai government in Karnataka tabled the controversial anti-conversion bill in the legislative assembly on Tuesday amidst protests by the opposition. The proposed legislation, called the Karnataka Protection of Right to Freedom of Religion Bill, 2021, was approved by the state cabinet on Monday.

Members of the Christian community participate in a silent protest against the Anti-Conversion bill proposed in the Winter Session of Karnataka Legislative Assembly, in Bengaluru(PTI) PREMIUM
Members of the Christian community participate in a silent protest against the Anti-Conversion bill proposed in the Winter Session of Karnataka Legislative Assembly, in Bengaluru(PTI)

Leader of Opposition Siddaramaiah maintained that the Bill is “illegal” and would violate people’s right to profess and practice religion freely. State Congress chief DK Shivakumar said that the Bill seeks to destroy harmony and create communal tension.

The proposed legislation has also invited criticism from Christian community leaders, who have cited a recent spate of attacks against the members of their community while alleging that the Bill is an attempt by the BJP government to deflect attention away from corruption scandals by disturbing peace and harmony.

While the bill is yet to be passed the muster in the assembly, and is expected to do so on Thursday, the issue of anti-conversion laws has always sparked debate on their constitutionality and necessity in a constitutional democracy which encompasses free profession, practice and propagation of religion as a matter of fundamental right.

Contentious provisions of Karnataka government’s Bill:

The proposed legislation envisages stringent provisions for forced or induced conversion. It prohibits and penalises conversion from one religion to another by “misrepresentation, force, fraud, undue influence, coercion, allurement or marriage”.

The anti-conversion Bill provides for a minimum jail term of three years that can go up to five years and a fine of 25,000 for any person found guilty of unlawfully converting another person. If the offence committed is against a minor or a woman or someone belonging to the Scheduled Castes or Scheduled Tribes, the punishment is more — a maximum of ten years imprisonment, and a 50,000 fine. “Mass conversions” may also fetch up to a maximum of ten years in jail. After the first conviction under the law, the Bill states that every subsequent conviction will entail double the jail term.

The proposed law holds that a court of competent jurisdiction will order the accused to pay compensation up to a maximum 5 lakh to the “victim of conversion”. It adds that any aggrieved person, including parents, brother, sister or any other person related by blood, marriage or adoption, can file a first information report (FIR) against such an act.

The Bill has also drawn up a lengthy process for the registration of conversion, requiring the person who wants to convert needing to inform the district magistrate (DM) at least 60 days in advance whereas the person who will be carrying out the process must give one month’s notice to the DM. The DM then has to conduct an inquiry through the police to find out the “real intention” of the conversion.

After the process of conversion is completed, the person who has converted must submit a declaration within 30 days and also appear before the DM 21 days from the date of the declaration for verification of his or her documents. The Bill makes non-declaration of conversion also a penal offence, entailing a jail term ranging between six months to five years.

At last, the authorities will ascertain whether the person who has converted is still eligible to “enjoy social status or receive economic benefits from the government that he was getting prior to the conversion”, and will take suitable steps.

Legal experts maintain that the laws interfere in an individual’s agency to marry a partner from a different faith and to choose to convert from one’s religion. They also contend that the law is sweeping and allow the State to interfere in the personal affairs of individuals. The freedom to propagate one’s religion and the right to choose a partner are fundamental rights that the new anti-conversion laws impinge upon, they add. The experts also call the proposed a law a contravention of people’s right to privacy.

Other states that have similar anti-conversion laws:

There are at least nine other states in the country where similar legislations on unlawful conversions are in force. States of Odisha (1967 Act), Madhya Pradesh (1968 Act), Arunachal Pradesh (1978 Act), Gujarat (2003 Act, amended in 2021), Himachal Pradesh (2006 Act, re-enacted in 2019), Chhattisgarh (1968 Act, amended in 2006), Jharkhand (2017), Uttarakhand (2018) and Uttar Pradesh (2020) have specific legislation against unlawful conversion, which provide for penal consequences in case of conviction.

Rajasthan had also promulgated an anti-conversion law in 2006 but it has not come into force till date for want of assent of the Governor. However, a set of guidelines issued by the high court in December 2017 allows scrutiny and prior approval by the state machinery for interfaith marriages. The high court said that till the time the state government came up with a law, the court had a duty to issue some guidelines to “check the problem of forcible conversion of religion for the purpose of solemnising marriage only”.

Uttar Pradesh is the latest to join the league of states that have such laws. The UP government passed the law, famously known as the ‘love-jihad’ law in February this year, following the enacting of an ordinance on the same subject in November 2020. The law prescribes a jail term of up to 10 years and a fine of up to 50,000 for conversion under marriage, fraud, coercion or enticement.

Interestingly, the proposed law in Karnataka is the harshest among all states in terms of jail terms. While most states have not provided for a minimum jail term, the Karnataka Bill prescribes a minimum punishment of three years behind bars upon conviction. While the minimum punishment in UP is one year, in Karnataka, it is three years.

History of anti-conversion law in India:

India has a long history of anti-conversion laws which can be dated back to the pre-independence era. While the British did not enact any law, many princely states did so to restrict missionary activity. Some examples of such legislations are: Raigarh State Conversion Act, 1936, Patna Freedom of Religion Act, 1942, Sarguja State Apostasy Act, 1945, Udaipur State Anti-Conversion Act, 1946. Further, specific laws against conversion to Christianity were enacted in Bikaner, Jodhpur, Kalahandi and Kota.

When the Constitution was being drafted, in May 1947, Sardar Vallabh Bhai Patel introduced a clause in the Constitution of India, which provided that “conversion from one religion to another brought about by coercion or undue influence shall not be recognized by law.” However, Sardar Patel later suggested various amendments to Clause 13, which eventually was enacted as Article 25 in the Constitution.

After independence, in 1954, Parliament took up for consideration the Indian Conversion (Regulation and Registration) Bill. Six years later, another law, the Backward Communities (Religious Protection) Bill, 1960, was proposed to stop conversion. Both bills failed in parliament for want of support.

However, Orissa, Madhya Pradesh and Arunachal Pradesh passed anti-conversion laws in 1967, 1968 and 1978 respectively. Later, similar laws were passed by other states as well.

The last attempt made at a central legislation was in in 1978 when an All India Freedom of Religion Bill was introduced in Lok Sabha by Morarji Desai’s Janata Party government. However, it was never discussed, and was dropped after the government fell in July 1979.

Constitution on freedom of religion:

Article 25 of the Constitution maintains that all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion, subject to public order, morality and health. Apart from the caveats mentioned above, the provision adds that the State shall still be entitled to regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practice.

Similarly, Article 26 entitles every religious denomination to manage its own affairs in matters of religion but this right is also subject to public order, morality and health.

Articles 27 to 30 also guarantee freedom to manage religious affairs, monetarily contribute to the promotion of any religion, and set up and administer educational institutions.

In earlier decisions, the Supreme Court has protected the rights under Articles 25 and 26, underscoring how the right to choose religion is a natural right of choice.

In Ratilal Panachand Gandhi Vs The State of Bombay and others, 1954, the Supreme Court held that every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others.

“With man’s relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with,” emphasised the top court in SP Mittal Vs Union of India, 1983.

Legal challenges to anti-conversion laws and pertinent verdicts on the subject:

In Punjabrao Vs DP Meshram, 1965, the Supreme Court interpreted what professing a religion means as it explained that if a public declaration is made by a person that he has ceased to belong to his old religion and has accepted another religion, he will be taken as professing the other religion.

The first major case in which the Supreme Court ruled on the freedom of religion and on conversions related to petitions challenging the conversion laws of Orissa and MP in 1967-68. In 1977, a constitution bench in Rev Stanislaus Vs State of Madhya Pradesh upheld the validity of the laws, saying freedom to propagate one’s religion, as stipulated under Article 25 (1), did not grant a fundamental right to convert another person. The bench ruled that a purposive conversion would impinge on the “freedom of conscience” guaranteed to all citizens.

In the Sarla Mudgal case (1995), the Supreme Court held that conversion to Islam was not valid if done only in order to be able to practise polygamy. It was held to be an act of bigamy prohibited under Section 17 of the Hindu Marriage Act, 1955, and punishable under Section 494 of the Indian Penal Code. The second marriage would be void, the SC said.

This position was reaffirmed by the apex court’s judgment in the Lilly Thomas case in 2000, which clarified that prosecution for bigamy was not a violation of the freedom of religion under Article 25. “A person who mockingly adopts another religion where plurality of marriage is permitted so as to renounce the previous marriage and desert the wife, he cannot be permitted to take advantage of his exploitation as religion is not a commodity to be exploited,” said this judgment.

However, in Lata Singh Vs State of UP, the apex court highlighted the need for stringent punishment over acts of violence or threats in cases of inter-caste and inter-faith marriages. “This is a free and democratic country, and once a person becomes a major, he or she can marry whosoever he or she likes. If the parents of the boy or the girl do not approve of such inter-caste or inter-religious marriage, the maximum they can do is to cut off social relations, but they cannot give threats or commit or instigate acts of violence,” said the court.

In a recent case of M Chandra Vs M Thangamuthu & Another, 2010, the Supreme Court laid down the following test to prove conversion: “It is a settled principle of law that to prove a conversion from one religion to another, two elements need to be satisfied. First, there has to be a conversion and second, acceptance into the community to which the person converted. It is obvious that the need of a conversion cannot be altogether done away with.”

In Ga Arife alias Arti Sharma Vs Gopal Dutt Sharma, 2010, and in Faheem Ahmed Vs Maviya, 2011, the Delhi high court lamented that religious conversions are increasingly used for anything but the primary reason for conversion -- spiritual advancement. “The basic focus to convert from one religion to another is to seek God from another platform but unfortunately today proselytization is increasingly done for reaping benefits,” said the court. The high court further said that a legislative intervention in this regard seems imperative “to curb the controversies and court battles arising on the premise of the convert's religious status in matrimonial cases.”

In April this year, the Supreme Court called “very harmful” a petition that asked for a strict central law to check religious conversions and observed that an adult is free to choose his or her religion. “There is a reason why the word ‘propagate’ is there in the Constitution. You have to have some meaning for that word. There is no reason why somebody above 18 cannot choose their own religion or somebody else’s religion,” the court observed.

The Supreme Court is also seized of petitions challenging the validity of anti-conversion legislations framed by UP and Uttarakhand but no effective hearing has taken place after the issuance of notices in January this year.

Before the Allahabad high court, where a clutch of petitions has sought striking down of the UP law, the state government emphatically relied on the 1977 Supreme Court judgment affirming anti-conversion laws in MP and Odisha, claiming it to be the law of the land since the five-judge bench judgment is yet to be overruled or tweaked by any subsequent judgment.

But the nine-judge bench verdict of the Supreme Court in 2017, declaring privacy to be a fundamental right, could be a turning point in the entire discourse, which engenders a fine balance of competing and corresponding fundamental rights juxtaposed with constitutional nuances and legal interpretation.

34 years after the judgment affirming the anti-conversion laws, every fresh challenge to an anti-conversion law must succeed on the judicial standards laid down by the right to privacy judgment, which underscores that a legislation must also achieve a legitimate state aim in a democratic society. It adds there should be a rational nexus between the objects and the means adopted to achieve them, besides ensuring that the extent of the State’s interference must be proportionate to its need while having procedural guarantees to check against the abuse of State interference.

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