LOVE JIHAD LAWS IN UP-Are they an infringement of the right to religion as per article 25?
Love Jihad is also known as Romeo Jihad is a theory or belief propounded by the supporters of Hindutva stating that Muslim men target women through the means of deception, fraud, and allurement to convert them to Islam. Recently the State of Uttar Pradesh came with an ordinance or law named ‘PROHIBITION OF UNLAWFUL RELIGIOUS CONVERSION ORDINANCE,2020’ to protect a woman from forceful conversion. The law tries to impose different penalties on the conversion by misrepresentation, fraud, coercion, undue influence, allurement, or by any fraudulent means on the conversion of a woman, child, or minor of SC-ST category and for mass conversion. Article 25 says that “Freedom of conscience and free profession, practice and propagation of religion
(1) Subject to public order, morality, and health and the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice, and propagate religion
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law
(a) regulating or restricting any economic, financial, political, or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus Explanation I The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion Explanation II In sub-clause (b) of clause reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly .” Here we are to determine whether it infringes the right to religion as per article 25
Right to conscience as per article 25
The UP law imposes several restrictions to convert directly to another religion by asking the individual to submit a declaration sixty days prior and post to the conversion and also asking police to investigate the matter which infringes the individual's freedom of religion. Freedom of conscience means the freedom of having individual thoughts or beliefs. The individual has the right to change his beliefs. By asking details regarding one’s choice of religion, the right to religion gets infringed, clearly violating freedom of conscience. The up law gives a discouraging impact on the individual wishing to convert to another religion because the terms it has used are vague, any such law cannot sustain because it violates the basic principles of the constitution. In the case of Shafin Jahan vs Asokan K.M, the supreme court held that “ How Hadiya chooses to lead her life is entirely a matter of her choice”. It was held that Hadiya should be given the freedom and it is purely a concept of individual autonomy to choose to whom she can marry, isn't the same individual autonomy given in the case of religion as well? Why is that right to convert is still not a fundamental right under article 25? In Palash Sarkar vs the State of Bengal, the court said the girl is of 19 years of age and has attained majority and is allowed to do something that she prefers to do, even after this the courts keep restricting the freedom through anti-conversion laws.
Let us talk about how the anti-conversion laws that have evolved had infringed the citizen’s freedom of conscience. The first anti-conversion law dates back to the Indian Conversion (Regulation and Registration) Bill, 1954 which sought to enforce “licensing of missionaries and registration of conversion with government officials”. This bill could not get the majority of parliament. This was followed by the introduction of the Backward Communities (Religious Protection) Bill in 1960, “which aimed at checking conversion of Hindus to ‘non-Indian religions’ which, as per the definition in the Bill, included Islam, Christianity, Judaism, and Zoroastrianism. Then comes the freedom of religion bill 1979 which curbed the inter-religious conversion.
All these bills failed to get parliamentary support. Then comes the state initiatives regarding anti-conversion laws. First came the Orissa Freedom of Religion Act,1967. Orrisa high court in 1973 said that this act violates the constitution as under article 25(1), right to propagate also includes right to conversion as per Christianity and the term inducement is vague and there might be different restrictions already regarding conversion in article 25 and hence this act could not sustain. This judgment somehow violates the right to equality because Christianity alone cannot be taken into consideration while making anti-conversion laws but instead a right to convert should be added as a fundamental right under Article 25(1).
Then the second state to bring the law was Madhya Pradesh known as the Madhya Pradesh Freedom of Religion Act, 1968 which had is amendment in 2006 which insisted the priest provide for all the information regarding the conversion which was not assented to by the government as it required prior permission which infringed the freedom of religion. Any law putting restrictions on somebody’s freedom to convert infringes the right to conscience. In the Himachal Pradesh Freedom of Religion Act, 2006, Himachal Pradesh high court struck down section 4 and rules 3 and 5 of the act and held 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” which clearly states that freedom of conscience is a matter of right for every citizen.
In the case of Ratilal Panachand Gandhi v. the State of Bombay, the petitioners challenged the Bombay Public Trusts Act,1950 because it interfered with the freedom of conscience of the person and his right to freely profess and propagate the religion the court held that every individual has the right not only to profess the religious belief as per his conscience or judgment but is also allowed to perform acts to further propagate the belief so why when as per her individual’s conscience if one wants to convert has to go through so many restrictions. In the case of Rev Stanislaus v. State of Madhya Pradesh, the court held that “ It has to be remembered that Article 25(1) guarantees “freedom of conscience” to every citizen, and not merely to the followers of one particular religion, and that, in turn, postulates that there is no fundamental right to convert another person to one’s religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the “freedom of conscience” guaranteed to all the citizens of the country alike ”.
It is said that one cant choose if he doesn't know what all choices are open in front of him. The right to choose is part of freedom of conscience. Though we are not able to perform this rightfully due to various reasons. The right to religious conversion has been recognized under 18 of the Universal Declaration of Human Rights and by article 9 of the European Convention on Human Rights, which allows the right to choose, to keep, to change, or to abandon religion. It is also said that renunciation and conversion are different. what if after some years of birth, a person feels likes changing the religion of his own free will? This cannot be termed as conversion. persuasion cannot always be wrong, it should be from free conscience to open conscience Hence it can be said that up law infringes the right to conscience as per article 25
RIGHT TO PRACTICE AND PROPAGATE
The right to freely profess, practice, and propagate the religion is included in article 25(1) which enshrines the right to all the citizens of India to practice and propagate any religion. The up law by putting restrictions on the conversion of the individual infringes the person’s right to practice and propagate In the case of Rev Stanislaus v. State of Madhya Pradesh, the court examined whether the right to practice and propagate one’s religion includes the right to convert. The court upheld the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968, and the Orissa Freedom of Religion Act, 1967 and held that right to propagate does not include right to convert and “It has to be appreciated that the freedom of religion enshrined in the Article  is not guaranteed in respect of one religion only, but covers all religions alike, and it can be properly enjoyed by a person if he exercises his right in a manner commensurate with the like freedom of persons following the other religions. What is freedom for one, is freedom for the other, in equal measure, and there can therefore be no such thing as a fundamental right to convert any person to one’s religion.”
Thus if it is already stated that the right to propagate does not include the right to convert then why is there so much insecurity regarding the conversion? Why is that concept of Hindutva is always propounded and the target community is always Muslims? Why is it that even after 74 years of independence, we have failed to understand the world secular of the preamble? When will India grow up? we have been relying on the predominant model of a convert as an individual believer, and this notion is the basis for the judge’s decision to strike down the requirement to report the conversion. A person’s conscience or belief is very dear to him and cannot be asked to disclose. Restricting one's choice to adopt some religion strictly violates the fundamental principle on which freedom of religion is laid.
One major concern here is that the supreme court has failed to discuss the definitions of ‘allurement’ and ‘inducement’ and also the right to propagate was used as a compromise for Christians to include the right to convert as well because just mere propagation can also be covered in article 19
No person can be forced to profess any particular religion or remain part of any particular section. If a person desires then he can change his religion and when being questioned upon, he can embrace the new faith he has led into. The term propagation has been in debate for years due to its relation with the conversion. While discussing rights related to conversion, the question of freedom of religion has always been there along with the right to propagate
Yes, the PROHIBITION OF UNLAWFUL RELIGIOUS CONVERSION ORDINANCE,2020’ clearly violates the freedom of religion as per article 25
The law violates the freedom of conscience of an individual by putting all the restrictions and procedures which try to interfere with the choice of an individual to choose a religion. The freedom to religious conscience has also been stated under 18 of the Universal Declaration of Human Rights and by article 9 of the European Convention on Human Rights. The right to practice, profess and propagate is also followed by the freedom of conscience. The one solution that can be implied is to abolish the anti-conversion laws and to include the right to convert as a fundamental right in article 25
Now if this does not solve the issue of love jihad cases that is prevailing a lot today, making these kinds of laws that have been evolving over so many years is not going to help. We have many laws for child abuse and rapes but the everyday increasing data scare us.
If the real change has to be brought one needs to change the mentality of the person, the real meaning of the word secular needs to be understood and the difference between different religions needs to be clear out. This will lead to a better and prosperous India
Love Jihad’, , Wikipedia (2021) <https://en.wikipedia.org/w/index.php?title=Love_Jihad&oldid=1008053583> accessed 23 February 2021.
Prohibition of Unlawful Religious Conversion Ordinance, 2020’, , Wikipedia (2021) <https://en.wikipedia.org/w/index.php?title=Prohibition_of_Unlawful_Religious_Conversion_Ordinance,_2020&oldid=1002609285> accessed 24 February 2021
Article 25 in The Constitution Of India 1949’ <https://indiankanoon.org/doc/631708/> accessed 24 February 2021
Shafin Jahan vs Asokan K.M. on 8 March, 2018’ <https://indiankanoon.org/doc/18303067/> accessed 24 February 2021
‘Dr. Palash Sarkar vs State Of West Bengal & Ors on 23 June, 2015’ <https://indiankanoon.org/doc/57464845/> accessed 24 February 2021.
Aneesha Mathur New DelhiDecember 23, 2020UPDATED: December 23 and 2020 17:29 Ist, ‘Anti-Conversion Laws in India: How States Deal with Religious Conversion’ (India Today) <https://www.indiatoday.in/news-analysis/story/anti-conversion-laws-in-india-states-religious-conversion-1752402-2020-12-23> accessed 24 February 2021
Tariq Ahmad, ‘State Anti-Conversion Laws in India’ (June 2017) <https://www.loc.gov/law/help/anti-conversion-laws/india.php> accessed 11 February 2021
Orissa Freedom of Religion Act, 1967’ <http://www.bareactslive.com/Ori/OR331.HTM> accessed 24 February 2021.
M.P. Dharma Swatantrya Adhiniyam, 1968’ <http://www.bareactslive.com/MP/MP218.HTM> accessed 24 February 2021.
‘Rev. Stainislaus vs State Of Madhya Pradesh & Ors on 17 January, 1977’ <https://indiankanoon.org/doc/1308071/> accessed 24 February 2021.
1ST YEAR, BBA LLB
UNITED WORLD SCHOOL OF LAW