Legal Position of Unlawful Conversion of Religion Bill in Recent Times.
The Haryana cabinet recently approved the proposal for the Haryana Prevention
of Unlawful Conversion of Religion Bill, 2022. The draft plan of the Bill was
approved by the state Cabinet chaired by Haryana Chief Minister Khattar in
February 2022 as the first step.[1]
The Bill was later introduced in the Vidhan Sabha's ongoing Budget session, which began on March 2. In the state's 90-member Vidhan Sabha, the BJP-JJP coalition has 50 members. The Bill is almost ready and waiting to be passed. It will then be sent to the Governor for his final approval. Once the Governor has given his approval, it will be enacted as law and implemented throughout the state.
Aside from Haryana, laws restricting religious conversion already exist in various states including Karnataka, Arunachal Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Odisha, Uttar Pradesh, and Uttarakhand. The law dates back to 1967 when Odisha became the first state to pass anti-conversion legislation, the Orissa Freedom of Religion Act. The following year, Madhya Pradesh too enacted similar legislation.
However, a Supreme Court Constitution Bench in Rev. Stanislaus v. State of Madhya Pradesh[2] upheld the Madhya Pradesh and Orissa Freedom of Religion Acts by broadly interpreting 'public order' in search of legislative competence; the acts in question did not prohibit conversion by marriage, and thus the ruling of the 5-judge bench is not only irrelevant to resolving the impending constitutional infringement but is also weakened by the progressive Supreme Court rulings in other cases came thereof. And in context of the same judgment, HM Seervai[3] in his commentary on the Indian Constitution describes the Supreme Court's decision as "clearly wrong," "productive of the greatest public mischief," and "ought to be overruled" in his magisterial commentary on the Indian Constitution.
Pending issues:
Since February 2021, the Supreme Court has been hearing arguments on the constitutionality of anti-conversion laws in at least four states: Uttar Pradesh, Uttarakhand, Himachal Pradesh, and Madhya Pradesh. A three-judge panel of the Supreme Court agreed to investigate the legality of these laws but refused to put them on hold. The case, however, has not been heard since February 2021.
Meanwhile, petitions challenging anti-conversion laws have been filed in several High Courts. Any challenge to these laws would necessitate a reconsideration of the Supreme Court's Stanislaus decision while also taking the right to privacy judgment into account.
History:
Unlike the unlawful Conversion Bill of the 21st century, several initiatives were taken post-independence India. The first Indian Conversion (Regulation and Registration) Bill was introduced in 1954, with the goal of enforcing "missionary licensing and conversion registration with government officials." The bill was defeated.
Following this, the Backward Communities (Religious Protection) Bill was introduced in 1960. The bill aimed to prevent Hindus from converting to 'non-Indian religions,' which according to the bill's definition included Islam, Christianity, Judaism, and Zoroastrianism. In 1979, the Freedom of Religion Act sought "official restraints on inter-religious conversion."
There has been no centralized legislation to limit or regulate religious conversions. However, since 1954, Private Member Bills have been introduced in (but never approved by) Parliament on numerous occasions to regulate religious conversions. Furthermore, the Union Law Ministry stated in 2015 that Parliament lacks the legislative authority to pass anti-conversion legislation. Several states have enacted 'Freedom of Religion' legislation over the years to limit religious conversions carried out by force, fraud, or inducement.
Prevailing Law Challenges:
Citizens for Justice and Peace (CJP)[4] first questioned the constitutionality of the Uttarakhand Freedom of Religion Act, 2018, as well as the passage of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020. The top court then allowed the plea to be amended to include similar laws passed by Himachal Pradesh and Madhya Pradesh as well. The laws have been challenged, claiming that Indian citizens have a fundamental right to privacy, but the Acts and Ordinances are unconstitutional because they attempt to control the lives of residents of Uttarakhand, Uttar Pradesh, Himachal Pradesh, and Madhya Pradesh, and do not allow them to make significant decisions in their lives.
According to the petition, "Love Jihad has played over the years to divide the country with no official numbers or evidence of forced conversions," and that fears of rising "love jihad" cases have been "baseless" from the beginning. Despite the fact that the rhetoric of Love Jihad has been sold off quite frequently in India, particularly in Kerala and Karnataka, the government has admitted that the term 'Love Jihad' is not defined under existing laws and no such case of 'Love Jihad' has been reported by any of the central agencies."
On August 19, 2021, a Gujarat High Court Bench comprised of then-Chief Justice Vikram Nath and Justice Biren Vaishnav issued an interim order ruling that the provisions of the Gujarat Freedom of Religion (Amendment) Act, 2021, will not apply to inter-faith marriages performed without the use of force, allurement, or fraudulent means. In open court, Chief Justice Vikram Nath stated,[5]:
After recording the preliminary submissions and arguments advanced, we have directed as follows. We are therefore of the opinion that pending further hearing, the rigors of Section 3, 4, 4A to 4C, 5, 6, and 6A shall not operate merely because the marriage is solemnized by a person of one religion with another, without force or by allurement or by fraudulent means and such marriages cannot be termed as marriages for the purposes of unlawful conversion.
The Gujarat High Court's order put certain sections of the Gujarat Freedom of Religion Act on hold. The High Court even denied the state government's rectification application for stay removal, stating:
Prior to the amendment, marriage was not under Section 3, but now, because marriage is under Section 3, a conversion for marriage would also require Section 5 permission.
In that sense, we've only remained in the context of marriage. Section 5 has been suspended only with regard to marriages. We have not stayed Section 5 in its entirety. This order was challenged and heard by a Supreme Court bench of Justices S Abdul Nazeer and Krishna Murari on February 15.
The Gujarat government, on the other hand, did not seek an interim order, instead requesting a stay of the impugned order because Solicitor General Tushar Mehta stated that it was not the appropriate time to hear the case. The bench then served notice on Jamiat Ulama-E-Hind Gujarat and other private respondents, including Mujahid Nafees.
Section 3 of Gujarat's Anti-Conversion law prohibits forcible conversion from one religion to another through the use of force, allurement, or fraudulent means, or assisting a person to marry through allurement or fraudulent means. Sections 4A to 4C prescribe imprisonment for unlawful conversion, declares marriages by unlawful conversion null and void, and deal with offenses committed by organizations that engage in unlawful conversion. Section 5 punishes those who aid and abet the crime of forceful conversion, and Section 6 shifts the burden of proof to the accused.
Status of Anti-Conversion Laws in India and Supreme Court's Rulings
The Indian Constitution under Articles 255, 26, 27, and 28 guarantees the right to religious freedom. The primary objective of this right is to uphold the principle of secularism. The fundamental right to profess, exercise, and propagate one's religion is guaranteed by the Constitution.
Of the above-mentioned States Act, only the Himachal Pradesh Freedom of Religion Act, 2006 (2006 Act)[6] has gone through judicial scrutiny. It was challenged before the Himachal Pradesh High Court, which found in a clear 2012 decision that the notice requirement under section 4 violated both the individual's freedom of conscience and the right to privacy. To justify any interference with this right, the Court effectively established a "compelling state interest" test.
The Court in its wording said that "A person not only has a right of conscience, the right of belief, the right to change his belief, but also has the right to keep his beliefs secret. The State must have material before it to show what are the very compelling reasons which will justify its action of invading the right to privacy of an individual.
A man's mind is the impregnable fortress in which he thinks and there can be no invasion of his right of thought unless the person is expressing or propagating his thoughts in a manner that will cause public disorder or affect the unity or sovereignty of the country." The Court's finding that a vague declaration of "public order" was insufficient to justify invoking the exceptions to Article 25 is also significant here.
These 2012 findings are backed by the Supreme Court's nine-judge bench Puttaswamy[7] decision in 2018, in which decisional autonomy was articulated as an integral aspect of privacy in all of the opinions delivered. In fact, the 2012 judgment is an excellent illustration of how the right to privacy is inherent in the expression of all other fundamental rights, and it is one of the first to look closely at privacy in the context of Article 25.
The Supreme Court has ruled in a number of cases that faith, the state, and the courts have no jurisdiction over an adult's absolute right to choose a life partner. Marriage intimacies exist within an inviolable core zone of privacy, and the choice of a life partner, whether by marriage or otherwise, is part of an individual's "personhood and identity." Issues of faith have no bearing on an individual's absolute right to choose a life partner.
As the Supreme Court correctly stated in Shafin Jahan v. Asokan K.M.,[8] social values and morals have a place, but they are not above the constitutionally guaranteed freedom. The freedom to choose one's faith is essential to one's autonomy, and such guaranteed freedom strengthens the Constitution's core norms.
In our constitutional democracy governed by the rule of law, police cannot be authorized to violate individuals' private spheres, particularly in an attempt to determine the reason for exercising the constitutionally protected individual autonomy to conscience and religion. Further, the court observed that neither the state nor the law can impose a partner's choice or limit each person's free choice in these matters. Article 21 is based on the principle that the right to marry the person of one's choice is fundamental.
Another strategy:
Some High Courts, on the other hand, have taken a different approach and ruled in favor of more checks during conversions and interfaith marriages. In December 2020, the Uttarakhand High Court directed the district magistrate to conduct an investigation into a case in which a Hindu woman converted to Islam and married a Muslim man without providing adequate notice as required by Uttarakhand's anti-conversion law. It was decided that prior to converting for marriage, a notice to the district magistrate is required.
At times, the courts have taken on the task of regulating conversions. In the absence of a law, the Rajasthan High Court issued guidelines on conversions and inter-faith marriages in 2017. According to the court, anyone who wishes to convert must notify the district authorities prior to conversion, and a marriage can only be solemnized if adequate notice is given to the authorities.
Way Ahead:
To summarise, changing one's religion is an intimate decision, and there are only a few restrictions that can be imposed on the specific grounds specified in Article 25. If forced conversions endanger public order, it necessitates intervention, which must be accomplished through a proportionate remedy. Such a remedy can only be provided by providing legal recourse to the victim without overbroad substantive or procedural provisions that further infringe the victim's or other parties' rights.
As a result, it is argued that the laws upheld in Stainislaus represent the farthest limit to which an infringement is permitted in the profession and propagation aspects of Article 25. Anything more, whether veiled in terms of "freedom of religion" or marketed as illegal conversion, is unconstitutional. The Allahabad High Court has struck the right note in regard to the UP Ordinance by invoking privacy in interim orders, and it must follow that up by dealing with the substantive challenge as soon as possible.[9]
Today, using the illogic in Stainslaus, state legislatures across the country have used the bogey of public order to not only limit but completely eliminate, the fundamental right guaranteed by Article 25 from the Constitution. It violates the right to equality by treating different religious faiths unequally. It violates the right to privacy by requiring the publication of a conversion intention. Allowing the district magistrate broad police powers over conversion is an affront to dignity.
It violates a person's basic ethical liberty by outright prohibiting conversion for the purpose of marriage. Furthermore, by defining its prohibitions in ambiguous text, it treats the right to conscience as interchangeable. However the other way suggested can be of the Uniform Civil Code (UCC) for handling sch scenario which is now long overdue, and the Central Government has been urged to carry out the mandate of Article 44 of the Indian Constitution.
End Note:
The Bill was later introduced in the Vidhan Sabha's ongoing Budget session, which began on March 2. In the state's 90-member Vidhan Sabha, the BJP-JJP coalition has 50 members. The Bill is almost ready and waiting to be passed. It will then be sent to the Governor for his final approval. Once the Governor has given his approval, it will be enacted as law and implemented throughout the state.
Aside from Haryana, laws restricting religious conversion already exist in various states including Karnataka, Arunachal Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Odisha, Uttar Pradesh, and Uttarakhand. The law dates back to 1967 when Odisha became the first state to pass anti-conversion legislation, the Orissa Freedom of Religion Act. The following year, Madhya Pradesh too enacted similar legislation.
However, a Supreme Court Constitution Bench in Rev. Stanislaus v. State of Madhya Pradesh[2] upheld the Madhya Pradesh and Orissa Freedom of Religion Acts by broadly interpreting 'public order' in search of legislative competence; the acts in question did not prohibit conversion by marriage, and thus the ruling of the 5-judge bench is not only irrelevant to resolving the impending constitutional infringement but is also weakened by the progressive Supreme Court rulings in other cases came thereof. And in context of the same judgment, HM Seervai[3] in his commentary on the Indian Constitution describes the Supreme Court's decision as "clearly wrong," "productive of the greatest public mischief," and "ought to be overruled" in his magisterial commentary on the Indian Constitution.
Pending issues:
Since February 2021, the Supreme Court has been hearing arguments on the constitutionality of anti-conversion laws in at least four states: Uttar Pradesh, Uttarakhand, Himachal Pradesh, and Madhya Pradesh. A three-judge panel of the Supreme Court agreed to investigate the legality of these laws but refused to put them on hold. The case, however, has not been heard since February 2021.
Meanwhile, petitions challenging anti-conversion laws have been filed in several High Courts. Any challenge to these laws would necessitate a reconsideration of the Supreme Court's Stanislaus decision while also taking the right to privacy judgment into account.
History:
Unlike the unlawful Conversion Bill of the 21st century, several initiatives were taken post-independence India. The first Indian Conversion (Regulation and Registration) Bill was introduced in 1954, with the goal of enforcing "missionary licensing and conversion registration with government officials." The bill was defeated.
Following this, the Backward Communities (Religious Protection) Bill was introduced in 1960. The bill aimed to prevent Hindus from converting to 'non-Indian religions,' which according to the bill's definition included Islam, Christianity, Judaism, and Zoroastrianism. In 1979, the Freedom of Religion Act sought "official restraints on inter-religious conversion."
There has been no centralized legislation to limit or regulate religious conversions. However, since 1954, Private Member Bills have been introduced in (but never approved by) Parliament on numerous occasions to regulate religious conversions. Furthermore, the Union Law Ministry stated in 2015 that Parliament lacks the legislative authority to pass anti-conversion legislation. Several states have enacted 'Freedom of Religion' legislation over the years to limit religious conversions carried out by force, fraud, or inducement.
Prevailing Law Challenges:
Citizens for Justice and Peace (CJP)[4] first questioned the constitutionality of the Uttarakhand Freedom of Religion Act, 2018, as well as the passage of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020. The top court then allowed the plea to be amended to include similar laws passed by Himachal Pradesh and Madhya Pradesh as well. The laws have been challenged, claiming that Indian citizens have a fundamental right to privacy, but the Acts and Ordinances are unconstitutional because they attempt to control the lives of residents of Uttarakhand, Uttar Pradesh, Himachal Pradesh, and Madhya Pradesh, and do not allow them to make significant decisions in their lives.
According to the petition, "Love Jihad has played over the years to divide the country with no official numbers or evidence of forced conversions," and that fears of rising "love jihad" cases have been "baseless" from the beginning. Despite the fact that the rhetoric of Love Jihad has been sold off quite frequently in India, particularly in Kerala and Karnataka, the government has admitted that the term 'Love Jihad' is not defined under existing laws and no such case of 'Love Jihad' has been reported by any of the central agencies."
On August 19, 2021, a Gujarat High Court Bench comprised of then-Chief Justice Vikram Nath and Justice Biren Vaishnav issued an interim order ruling that the provisions of the Gujarat Freedom of Religion (Amendment) Act, 2021, will not apply to inter-faith marriages performed without the use of force, allurement, or fraudulent means. In open court, Chief Justice Vikram Nath stated,[5]:
After recording the preliminary submissions and arguments advanced, we have directed as follows. We are therefore of the opinion that pending further hearing, the rigors of Section 3, 4, 4A to 4C, 5, 6, and 6A shall not operate merely because the marriage is solemnized by a person of one religion with another, without force or by allurement or by fraudulent means and such marriages cannot be termed as marriages for the purposes of unlawful conversion.
The Gujarat High Court's order put certain sections of the Gujarat Freedom of Religion Act on hold. The High Court even denied the state government's rectification application for stay removal, stating:
Prior to the amendment, marriage was not under Section 3, but now, because marriage is under Section 3, a conversion for marriage would also require Section 5 permission.
In that sense, we've only remained in the context of marriage. Section 5 has been suspended only with regard to marriages. We have not stayed Section 5 in its entirety. This order was challenged and heard by a Supreme Court bench of Justices S Abdul Nazeer and Krishna Murari on February 15.
The Gujarat government, on the other hand, did not seek an interim order, instead requesting a stay of the impugned order because Solicitor General Tushar Mehta stated that it was not the appropriate time to hear the case. The bench then served notice on Jamiat Ulama-E-Hind Gujarat and other private respondents, including Mujahid Nafees.
Section 3 of Gujarat's Anti-Conversion law prohibits forcible conversion from one religion to another through the use of force, allurement, or fraudulent means, or assisting a person to marry through allurement or fraudulent means. Sections 4A to 4C prescribe imprisonment for unlawful conversion, declares marriages by unlawful conversion null and void, and deal with offenses committed by organizations that engage in unlawful conversion. Section 5 punishes those who aid and abet the crime of forceful conversion, and Section 6 shifts the burden of proof to the accused.
Status of Anti-Conversion Laws in India and Supreme Court's Rulings
The Indian Constitution under Articles 255, 26, 27, and 28 guarantees the right to religious freedom. The primary objective of this right is to uphold the principle of secularism. The fundamental right to profess, exercise, and propagate one's religion is guaranteed by the Constitution.
Of the above-mentioned States Act, only the Himachal Pradesh Freedom of Religion Act, 2006 (2006 Act)[6] has gone through judicial scrutiny. It was challenged before the Himachal Pradesh High Court, which found in a clear 2012 decision that the notice requirement under section 4 violated both the individual's freedom of conscience and the right to privacy. To justify any interference with this right, the Court effectively established a "compelling state interest" test.
The Court in its wording said that "A person not only has a right of conscience, the right of belief, the right to change his belief, but also has the right to keep his beliefs secret. The State must have material before it to show what are the very compelling reasons which will justify its action of invading the right to privacy of an individual.
A man's mind is the impregnable fortress in which he thinks and there can be no invasion of his right of thought unless the person is expressing or propagating his thoughts in a manner that will cause public disorder or affect the unity or sovereignty of the country." The Court's finding that a vague declaration of "public order" was insufficient to justify invoking the exceptions to Article 25 is also significant here.
These 2012 findings are backed by the Supreme Court's nine-judge bench Puttaswamy[7] decision in 2018, in which decisional autonomy was articulated as an integral aspect of privacy in all of the opinions delivered. In fact, the 2012 judgment is an excellent illustration of how the right to privacy is inherent in the expression of all other fundamental rights, and it is one of the first to look closely at privacy in the context of Article 25.
The Supreme Court has ruled in a number of cases that faith, the state, and the courts have no jurisdiction over an adult's absolute right to choose a life partner. Marriage intimacies exist within an inviolable core zone of privacy, and the choice of a life partner, whether by marriage or otherwise, is part of an individual's "personhood and identity." Issues of faith have no bearing on an individual's absolute right to choose a life partner.
As the Supreme Court correctly stated in Shafin Jahan v. Asokan K.M.,[8] social values and morals have a place, but they are not above the constitutionally guaranteed freedom. The freedom to choose one's faith is essential to one's autonomy, and such guaranteed freedom strengthens the Constitution's core norms.
In our constitutional democracy governed by the rule of law, police cannot be authorized to violate individuals' private spheres, particularly in an attempt to determine the reason for exercising the constitutionally protected individual autonomy to conscience and religion. Further, the court observed that neither the state nor the law can impose a partner's choice or limit each person's free choice in these matters. Article 21 is based on the principle that the right to marry the person of one's choice is fundamental.
Another strategy:
Some High Courts, on the other hand, have taken a different approach and ruled in favor of more checks during conversions and interfaith marriages. In December 2020, the Uttarakhand High Court directed the district magistrate to conduct an investigation into a case in which a Hindu woman converted to Islam and married a Muslim man without providing adequate notice as required by Uttarakhand's anti-conversion law. It was decided that prior to converting for marriage, a notice to the district magistrate is required.
At times, the courts have taken on the task of regulating conversions. In the absence of a law, the Rajasthan High Court issued guidelines on conversions and inter-faith marriages in 2017. According to the court, anyone who wishes to convert must notify the district authorities prior to conversion, and a marriage can only be solemnized if adequate notice is given to the authorities.
Way Ahead:
To summarise, changing one's religion is an intimate decision, and there are only a few restrictions that can be imposed on the specific grounds specified in Article 25. If forced conversions endanger public order, it necessitates intervention, which must be accomplished through a proportionate remedy. Such a remedy can only be provided by providing legal recourse to the victim without overbroad substantive or procedural provisions that further infringe the victim's or other parties' rights.
As a result, it is argued that the laws upheld in Stainislaus represent the farthest limit to which an infringement is permitted in the profession and propagation aspects of Article 25. Anything more, whether veiled in terms of "freedom of religion" or marketed as illegal conversion, is unconstitutional. The Allahabad High Court has struck the right note in regard to the UP Ordinance by invoking privacy in interim orders, and it must follow that up by dealing with the substantive challenge as soon as possible.[9]
Today, using the illogic in Stainslaus, state legislatures across the country have used the bogey of public order to not only limit but completely eliminate, the fundamental right guaranteed by Article 25 from the Constitution. It violates the right to equality by treating different religious faiths unequally. It violates the right to privacy by requiring the publication of a conversion intention. Allowing the district magistrate broad police powers over conversion is an affront to dignity.
It violates a person's basic ethical liberty by outright prohibiting conversion for the purpose of marriage. Furthermore, by defining its prohibitions in ambiguous text, it treats the right to conscience as interchangeable. However the other way suggested can be of the Uniform Civil Code (UCC) for handling sch scenario which is now long overdue, and the Central Government has been urged to carry out the mandate of Article 44 of the Indian Constitution.
End Note:
- https://www.thehindu.com/news/national/other-states/haryana-cabinet-gives-nod-to-draft-haryana-prevention-of-unlawful-conversion-of-religious-bill/article38396811.ece
- Rev Stanislaus vs Madhya Pradesh, 1977 SCR (2) 611
- Constitutional Law of India: A Critical Commentary, by HM Seervai
- https://cjp.org.in/cjp-moves-supreme-court-against-love-jihad-laws-of-uttarakhand-uttar-pradesh/ https://www.livelaw.in/top-stories/love-jihad-laws-himachal-pradesh-and-madhya-pradesh-supreme-court-anti-conversion-laws-cjp-169749
- Jamiat Ulama-E- Hind Gujarat Versus State of Gujarat, R/Special Civil Application No. 1011 of 2021
- https://www.indiacode.nic.in/bitstream/123456789/5395/1/the_himachal_pradesh_freedom_of_religion_act%2C_2006.pdf
- Justice K.S. Puttaswamy and Anr. vs. Union of India (UOI) and Ors., (2019) 1 SCC 1
- Shafin Jahan v. Asokan K.M., (2017) 10 SCC 1); alias Hadiya Case.
- Mayra Alias Vaishnvi Vilas Shirshikar And Another ... Snehlata @ Rukaiya Mansuri and another vs State of U.P. and 3 others, Writ-C No. - 14896 of 2021
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