Are laws that prevent forced conversions really about freedom of religion? - Hindustan Times
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Legally Speaking | Are laws that prevent forced conversions really about freedom to practise religion?

Feb 17, 2024 05:03 PM IST

There is no national anti-conversion law, but various states are enacting laws. Newer grounds where such so-called crimes can take place are being identified

Article 25 of the Constitution of India recognises freedom of conscience and the right to freely profess, practise and propagate religion. Freedom of conscience allows individuals to follow, practise and profess any faith or religion as per their choice. Freedom to propagate religion provides liberty to spread or convey one’s religion by exposition of its tenets, philosophies, and beliefs. The Constitution has also adopted the principle of secularism by not having a state religion or preferred religion for the functioning of the state.

Anti-conversion laws are gaining significance leading to more and more states passing such laws, bringing new amendments to the existing ones. (Shutterstock) PREMIUM
Anti-conversion laws are gaining significance leading to more and more states passing such laws, bringing new amendments to the existing ones. (Shutterstock)

Despite this, anti-conversion laws are gaining significance leading to more and more states passing such laws, bringing new amendments to the existing ones. Earlier this week, the Chhattisgarh minister of culture, religious trusts and endowment, tourism, parliamentary affairs and higher education Brijmohan Agarwal said that the state would bring an anti-conversion law to deal with the long-pending issue; the Maharashtra government too has shown interest in enacting such a law.

Last month, the Allahabad high court dismissed petitions filed by eight interfaith couples seeking protection for their lives, noting that their marriages were not in compliance with the provisions of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, popularly known as the anti-conversion law. The orders did not specify how these marriages were not in compliance, however.

Besides UP, which passed the law in 2021, other states that have anti-conversion laws include Arunachal Pradesh, Gujarat, Haryana, Himachal Pradesh, Jharkhand, Madhya Pradesh, Odisha and Uttarakhand. In 2022, the BJP-led government brought an act in Karnataka called the Protection of Right to Freedom of Religion Act which was scrapped by the Congress-led government last year.

Freedom of Religion Acts are state legislations which intend to regulate religious conversions and prevent forced and unethical conversion of people. These laws criminalise the act of converting oneself or anyone else fraudulently, forcibly or by allurement or inducement. However, these state laws have been under scrutiny for their ambiguity, constitutionality and intrusion into individual liberty and privacy.

Anti-conversion laws were once all the rage in pre-independence India and existed in several princely states to preserve Hindu religious identity in the face of British missionaries. Post-independence attempts were made to bring a Central legislation to regulate religious conversions. In 1954, The Indian Conversion (Regulation and Registration) Bill sought compulsory licensing of the missionaries and registration of conversion with government institutions. In 1960, the Backward Communities (Religious Protection) Bill was introduced in Parliament to check the conversion of Hindus to “Non-Indian Religion”. A similar attempt was made again in 1979.

Conservative lawmakers saw the activities of missionaries as a threat to the majority Hindu religion. Yet, none of these bills could gather majority support in parliament to become law and as a result, there is no national anti-conversion law in existence. Only states have anti-conversion laws.

There are several instances of Dalits mass converting to Buddhism right after a heinous caste atrocity is committed in a particular area. For example, in Una and Hathras, mass conversions happened after caste atrocities took place in 2016 and 2020 respectively. Similarly, Dr Ambedkar led the mass conversion of Dalits to Buddhism in 1956 to critique the dehumanising caste system. Indeed, scholars and Dalit community intellectuals have asserted that anti-conversion laws are political strategies to keep Dalits in the Hindu fold.

Post-independence, Odisha and Madhya Pradesh were the first states to pass Freedom of Religion Acts in 1967 and 1968. The validity of these laws was challenged in high courts and later in the Supreme Court of India in Rev. Stainislaus vs State Of Madhya Pradesh & Others (1977). In this case, the apex court upheld the validity of the anti-conversion laws. The Supreme Court held that both statutes do not violate Article 25 as they prohibit forcible conversion and aim to protect and maintain public order. The rights under Article 25 are subject to reasonable restrictions on the grounds of “public order, morality, and health”. The Court also observed that the right to convert others is not a fundamental right.

Stricter laws since 2000

The state legislations enacted after the year 2000 appear to be more stringent going beyond the mere prohibition of forced religious conversion by preachers (which was upheld in the case of Stainislaus). These laws have broadened their punitive scheme by incorporating new grounds for punishment as well as bureaucratic interference. Individuals desirous of changing their religion as well as those facilitating the conversion are required to provide prior notice to or take permission from a District Magistrate. Newer grounds incorporated in these laws include misrepresentation, undue influence and promise of marriage. The last, used in the recently enacted and amended laws of four states — Uttarakhand (2018), Uttar Pradesh (2021), Madhya Pradesh (amendment of 2021), and Gujarat (amendment of 2021) — has thrown the spotlight on inter-faith marriages. The spectre of love jihad, a trope used by right-wing groups to harass inter-faith couples, is often deployed to challenge such marriages and reframe them as sites of potential forced conversions.

In the backdrop of the recognition of the right to privacy in K.S. Puttaswamy v. Union of India (2017), it is acknowledged that any interference by the state in an adult's right to love and marry has a chilling effect on freedoms.

Criminalised, and in need of protection

On August 19, 2021, a division bench of the Gujarat high court comprising then Chief Justice Vikram Nath and Justice Biren Vaishnav passed an order to protect inter-faith couples from undue harassment. The bench observed that the Gujarat Freedom of Religion (Amendment) Act, 2021 “interferes with the intricacies of marriage including the right to the choice of an individual, thereby infringing Article 21 of the Constitution Of India”. Article 21 of the Constitution guarantees the fundamental right to the protection of life and personal liberty. The Court held that the provisions of anti-conversion laws will not apply to inter-faith marriages based on free consent by adults.

Following this, the Gujarat government moved the Supreme Court to lift the high court’s stay on certain sections of the state’s amended anti-conversion law. Similarly, On November 14, 2022, the high court of Madhya Pradesh issued an interim order which restrained the state government from taking coercive action against any person who contravened section 10 of the Madhya Pradesh Freedom of Religion Act, 2021. The section requires a person to give a declaration 60 days in advance to the District Magistrate. The state government filed an appeal against this order in the Supreme Court. In addition, Citizens for Justice and Peace filed a writ petition in the Supreme Court under Article 32 challenging the Uttarakhand Freedom of Religion Act, 2018 and the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020. While challenging the validity of these acts and ordinances, the petitioner submitted that the provisions of the impugned act and ordinance, both violate Article 21 of the Constitution as it empowers the State to suppress an individual’s personal liberty.

A three-judge bench led by Chief Justice of India, Justice DY Chandrachud, Justices PS Narasimha and JB Pardiwala will hear petitions challenging laws against religious conversions in different states. It remains to be seen how the Supreme Court interprets these statutes and adjudicates on this matter.

Prashant Bhaware, a lawyer and researcher, writes about the finer legal points of a case that's making news this week. The views expressed are personal

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