ANTI CONVERSION LAWS
Recently, the Karnataka Protection of Right to Freedom of Religion Bill, 2021 was introduced in the state assembly of Karnataka. While other States like Arunachal Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Odisha, Uttar Pradesh and Uttarakhand have also passed laws restricting religious conversion.
Constitutional Provisions
- Article 25: It guarantees the freedom to profess, propagate, and practise religion, and allows all religious sections to manage their own affairs in matters of religion; subject to public order, morality, and health.
- However, no person shall force their religious beliefs and consequently, no person should be forced to practice any religion against their wishes.
- Article 26: Freedom to manage religious affairs
- Article 28: Freedom to attend religious instruction or worship in certain educational institutions
Parliament Laws
- Existing Laws: There has been no central legislation restricting or regulating religious conversions. However, since 1954, on multiple occasions, Private Member Bills have been introduced in (but never approved by) the Parliament, to regulate religious conversions.
Important Judgements
- Hadiya Case: Matters of dress and of food, of ideas and ideologies, of love and partnership, are within the central aspects of identity. Neither state nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters.
- K.S. Puttaswamy case: The autonomy of the individual is the ability to make decisions in vital matters of concern to life. Any interference by the state in an adult’s right to love and marry has a “chilling effect” on freedoms. Intimacies of marriages exist within a core zone of privacy, which is inviolable.
- Lily Thomas and Sarla Mudgal cases: The SC of India, in both the Lily Thomas and Sarla Mudgal cases, has confirmed that religious conversions carried out without a bona fide belief and for the sole purpose of deriving some legal benefit do not hold water.
- Salamat Ansari-Priyanka Kharwar case of Allahabad High Court 2020: The right to choose a partner or live with a person of choice was part of a citizen’s fundamental right to life and liberty (Article 21). The verdict also said earlier court rulings that ‘religious conversion for marriage was unacceptable’ was not good in law.
- Uttarakhand HC, in November 2017: Held that conversions for the sake of marriage are a sham and urged the government to enact the law against such conversions. This became the basis for the Uttarakhand Freedom of Religion Act, 2018.
Common Features of Introduced Bills and Laws (MP, UP, Karnataka, HP)
- Terminologies (Aim):
- Karnataka: The Bill prohibits conversion from one religion to another by misrepresentation, force, fraud, allurement, or marriage.
- UP: The ordinance criminalizes religious conversion by “force, undue influence, coercion, or allurement”.
- MP: The bill seeks to prohibit religious conversions or an attempt of conversion by means of misrepresentation, allurement, threat, undue influence, coercion, marriage, and any other fraudulent means.
- HP: The law seeks to prohibit religious conversions through misrepresentation, force, undue influence, coercion, inducement, or by any fraudulent means or by marriage.
- Declaration of Marriage Null and Void: A common feature of all four laws is the declaration of such marriages as “null and void.”
- Provision of prior notice:
- Karnataka: The Bill insists that any person intending to convert to another religion will have to inform the district magistrate at least 30 days in advance. This will be followed by an inquiry to be conducted by the district magistrate through the police to establish the real intent of conversion.
- MP: The law requires a 60-day prior “declaration of the intention to convert” to the District Magistrate for conversion to be valid. Following this, a couple from different religions can be legally married.
- UP: The Prohibition of Unlawful Conversion of Religious Ordinance, 2020, too requires a 60-day notice. It also requires the Magistrate to conduct a police inquiry to ascertain the real intention behind the conversion.
- HP: The Himachal Pradesh Freedom of Religion Act, 2019 requires a 30-day prior “declaration of intention to convert.”
- Burden of proof:
- Karnataka: Section 12 of the Bill lays the burden of proof on the person who causes the conversion or abets it.
- UP: The UP law goes further, placing this burden of proof on people who “caused” or “facilitated” the conversion and not on the individual.
- MP: The MP Law places burden on the person converted to prove that the conversion was done without any coercion or illegality.
- HP: The Himachal law has a similar provision.
- Investigation Procedure:
- Karnataka: According to the proposed legislation, complaints of conversions can be filed by family members or relatives or any person in association. DM shall investigate in the case.
- MP: The MP law states that there cannot be an investigation by a police officer except on the written complaint of the person converted or the person’s parents/siblings. Guardians of the person converted can file a complaint only with the permission of a court. The MP law also says that no police officer below the rank of a sub-inspector can investigate an offence under the law.
- UP: The UP law allows the same people as allowed by the MP law to file a complaint.
- HP: Under the Himachal law, prosecution cannot be initiated without the prior sanction of an officer not below the rank of a sub-divisional magistrate.
- Maintenance rights: If the marriage is declared “null and void” in any case then:
- MP: MP’s new law seeks to protect the right of women and her child. They will have a right to maintenance.
- Other states: Neither the UP, Karnataka nor the Himachal law has such provisions for protecting women and children.
- Penal Provisions: The offense of conversion is a cognisable and non-bailable offense in all 4 states.
- Karnataka: It will attract a jail term of three to five years and a fine of Rs 25,000 for people found violating the law and a jail term of three to 10 years, and a fine of Rs. 50,000 for people converting minors, women, and persons from the SC and ST communities.
- UP: A minimum punishment of one year, which can be extended up to 5 years, and repeat offences can carry double the maximum sentence. A sentence is between 2 and 10 years in case of causing conversion of a woman, a minor or a person belonging to an SC/ST.
- MP: It will attract a jail term between one and 5 years for converting or attempting to convert unlawfully. Sentence of 2 to 10 years, if the person converted is a woman, a minor or a person belonging to a SC/ST. It also provides for a jail term of 3 to 10 years for concealing one’s religion during the marriage.
- HP: A person can be sentenced to a jail term of one to 5 years for converting or attempting to convert unlawfully. If the person converted is a woman, a minor or a person belonging to an SC/ST, the sentence is 2 to 7 years.
Arguments Against the Anti-conversion Laws and Bills
- Violates Article 21: Which guarantees individuals the right to marry a person of one’s choice.
- For example: The mandatory prior declaration of the intention to convert violates the right to keep one’s faith secret.
- Vague terminologies: The law employs the use of open-textured phrases such as “undue influence”, “allurement” and “coercion”. These terms leave room for ambiguities or are too broad, extending to subjects far beyond the protection of religious freedom.
- Vague nature: Even the question of whether a religious conversion is truly conducted solely for the purpose of a marriage is inherently vague. The interpretation of these subjective terms is entirely left to the discretion of the judge.
- Patriarchal dominance: It is widely presumed that such conversions involve ‘coercion’ or ‘deceit’, and hence, Hindu women ought to be ‘protected’ from the danger of conversion.
- Freedom of conscience: Under freedom of conscience, the practice and conversion of religion of one’s choice including not following any religion are also guaranteed.
- Antithetical to Secularism: These laws may pose a threat to the secular fabric of India and the international perception of our society’s intrinsic values and legal system.
- Possibility of misuse: While these laws are not directly unconstitutional, there is a possibility of them being misused.
- Reconversion: These laws do not deem reconversion to be an offence. The reconversion can either be due to one’s own free will or through somebody else persuading them. This provision gives license to some individuals/organisations to do whatever they want to bring the converted individuals back to the folds of the ‘parent’ religion.
- Burden of proof: The burden of proving that the conversion was ‘lawful’ lies on the person who ‘caused’ the conversion (Karnataka, UP). This provision ignores the opinion of those who converted and focuses only on the “converter”.
- Possibility of honour killing: Publishing one’s personal details spreads the news to the family and the larger community, leading to the possibility of honour killings.
- For example: More than 350 such killings have taken place over the last 6 years. Such cases largely remain under-reported and there are no legal provisions to prevent the same.
- Affect social fabric of society: These laws increase the potential of social discord and communal divides.
- Oppose Special Marriage Act: They oppose the freedoms granted by provisions in the Special Marriage Act.
- Criminalization of day-to-day activities: There are already provisions in the Code of Criminal Procedure that protect against coercive conversions. Excessive legislation only criminalises day-to-day activities.
Arguments in favour of Anti-Conversion Laws and Bills
- Threats of forceful conversion: Force not solely embodies physical force to convert a person belonging to one faith to a different one but also includes mental force like the “threat of divine displeasure”.
- For example: Assume if a missionary informs a person that only Christians are allowed entry into heaven—a core part of the faith—that could also be construed as “force”.
- For example: The Orissa High Court in Yulitha Hyde v. the State of Orissa case upheld this interpretation of “force” (Physical and mental).
- Problem of Inducement or allurement: Most anti-conversion laws mention allurement or inducement as an offering of any gift or gratification, either in cash or in-kind, and also includes a grant of any benefit, which can become the vague reason of conversion.
- For example: In Rev. Stanislaus vs State of Madhya Pradesh (1977) case, the court upheld this definition.
- Religious conversion is not a fundamental right: Supreme Court in Rev. Stanislaus vs State of Madhya Pradesh (1977) case held that the conversion isn’t a fundamental right and so could be regulated by the state. This act as the legal basis for other such laws created by states.
- Evidences of misuse: A committee led by Chief Justice of Nagpur Niyogi found that religious conversions were not “completely voluntary”.
- Safeguard human rights: Anti-conversion laws safeguard human rights by preventing fake, fraudulent, or deceitful premises of marriage.
- Provide legal base: These laws provide legal remedies for those who were duped or forced into conversion.
- Involvement of crime: Forcible conversion of religion often involves several crimes, including wrongful confinement, intimidation, kidnapping, assault, etc.
Way Forward
- Need for uniformity: Article 18 of the Universal Declaration on Human Rights mentions everyone has the right to freedom of religion including changing their faith. Since it is a state subject, the Centre can frame a model law like Model law on contract farming, etc.
- Awareness to the people: People also need to be educated about the provisions and ways of Forceful conversions, Inducement or allurement, etc.
- Mention steps of conversion: According to the USCIRF, some observers note that “anti-conversion laws create a hostile, and on occasion violent, environment for religious minority communities since they do not require any evidence to support such accusations of wrongdoing. So, the anti-conversion laws also need to include a provision to mention the valid steps for conversion by minority community institutions.
- Strike a balance: The governments implementing such laws need to ensure that these do not curb one’s Fundamental Rights or hamper the national integration instead; these laws need to strike a balance between freedoms and malafide conversions.
- Laws must be backed by studies: Anti-conversion laws must be backed by a concrete study on the ground-reality of such forced conversions. If such issues are found to be a reality, the government can strengthen the existing legislation that protects against coercion and forceful conversions.
- Avoid ambiguities: These laws must be devoid of ambiguity so that they are not exploited.