Right to Conversion as Fundamental Right


The concept of secularism implicit in the Preamble declares to secure all its citizens “liberty of thought, expression belief, faith and worship”. Later 42nd Amendment Act,1976 has inserted the word ‘Secular’ in the Preamble. The Supreme Court said on the secular character of the Indian Constitution that “There is no mysticism in the secular character of the state. Secularism is neither anti-God nor pro-God; it treats believers, agnostics, and atheists equally. It separates God from state affairs and guarantees that no one is discriminated against their religious beliefs.” [i]On the ground of religion, Secularism declared as the basic feature of the Indian Constitution.

The following provisions provide the concept of Conversion Right. Article 6(7) of the constituent assembly fourteen draft articles concerned with debates provides conversion right except for coercion, undue influence or the offering of material inducement which is punishable by the law. K.M. Munshi moved an amendment which read thus:

“Any conversion from one religion to another of any person brought about by fraud, coercion or undue influence or of a minor under the age of 18 shall not be recognized by law.”[ii]

Article 25 of the Indian Constitution provides that “Freedom of Conscience and the right to freely profess, practice and propagate religion.”[iii] The term religion not defined in the constitution and indeed, it is a term that is hardly susceptible to any rigid definition. This article secures to every person freedom not only to accept the religion of his choice but also to execute his belief in such outward acts as he thinks proper. He also has the freedom to propagate his ideas to others.

Article 25 (1) has three-fold freedom of Religion as follows:

I. “Freedom of Conscience” is meaningful when spiritual conviction or religious belief is allowed both in word and action.

II. “Freedom to Profess religion” means the right of the believer to give expression to his belief in public. K.M. Munshi feared that even forced conversion might be covered by the right to propagate.

III. “Freedom to Practice religion” means conveying one’s belief to another and persuading him to accept it. It does not, however, amount to forcible or coercive conversion”.

The right guaranteed under Article 25(1) like other constitutional rights, is not absolute. Even Article 21 guarantee the Right to Privacy and the Right to Choose for every individual, that is, conversion to any religion is a private matter as well as the personal choice of the individual. This right is, subject to public order, morality and health and the other provisions of Part III of the Constitution.[iv]

Apart from this, Article 18 of the Universal Declaration of Human Rights[v] explicitly recognised the right to change religion as part of human rights.

Right to Conversion

For decades, several cases tried to answer the question of whether the Right to conversion is violative to Fundamental Rights? The right to propagate includes the right to convert, which is a basic right, but which becomes unlawful if performed forcibly or under duress. The Supreme Court in Ratilal Panachand case[vi]confirmed that every person has a fundamental right under Constitution not only to entertain such religious beliefs as may be approved by his conscience but also to exhibit his beliefs and ideas in such overt acts as are enjoined or sanctioned by the propagation of religion or edification of others.

In another case, Digyadarsan Rajendra Ramdassji v. State of Andhra Pradesh[vii]held that “the right to propagate one’s religion means communication or to expose the individual religious belief and tenants to another but would not include the right to ‘conversion’ to former faith”. Therefore, it came to be judicially established that although propagation enjoys constitutional protection under the right to freedom of religion conversion does not.

Anti-Conversion Law

In the pre-Independence era, anti-conversion statutes were initiative by the Princely States such as the Raigarh State Conversion Act of 1936, the Patna Freedom of Religion Act of 1942, the Sarguja State Apostasy Act 1945 and the Udaipur State Anti-Conversion Act of 1946 which were explicitly against the conversion to Christianity.[viii]

After Independence, the parliament sought to bring the first anti-conversion bill, i.e, the Indian Conversion (Regulation and Registration) Bill was introduced in 1954 but failed to enact. This was trailed by the introduction of the Backward Communities (Religious Protection) Bill in 1960 which aim to check the Hindu's conversion activities to Non-Indian religion, namely, Islam, Christianity, Judaism or Zoroastrianism and the Freedom of Religion Bill in 1979 which sought to curb inter-religious conversion. This bill was likewise not passed because of the absence of parliamentary support.[ix]

As of now, 10 out of 29 states have anti-conversion law, that are, Arunachal Pradesh, Orissa, Madhya Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Uttarakhand and most recently Uttar Pradesh also. In 1967, Orissa was the first state to bring the Freedom of Religion Act. The purpose of the act to ban conversions that are accomplished by bribery, inducement, or deceit. The act stipulated a one-year jail term or Rs. 5,000 fine or both as a penalty. The increased fine for converting a minor or woman or member of the Scheduled tribes or castes was based on the belief that those who convert individuals from these communities were abusing their “poverty, simplicity, and ignorance.” Madhya Pradesh government enacted Dharma Swatantrya Adhiniyam in the same fashion as anti-conversion law prevailed in Orissa.

The Orissa Freedom of Religion Act, 1967[x] was tested on account of Yulitha Hyde v. The State of Orissa[xi] on two grounds, in particular, (a) the State Legislature has no legislative competency to enact on the issue covered by the Act, and (b) the act encroaches the fundamental right guaranteed under article 25 of the Constitution”. Although the Act declared ultra vires, made some interesting observations on the inter-relatedness of propagation and conversion. The court observed that “the genuine extent of the conversion guarantee under article 25 (1) of the Constitution, hence, should be taken to stretch out to engender religion and as an essential corollary of this proposition, change into one's own religion must be remembered for the privilege undoubtedly".[xii]

However, in Rev Stanislaus v. State of Madhya Pradesh, the Supreme Court considered legislation within the competence of state legislature as it is regarded the forbidden conversions as matters of public order rather than religious matters.[xiii]

Justice Ray said, “ It must be recalled that Article 25(1) grants ‘freedom of conscience' to any individual, not only to adherents of one specific religion, and that, in turn, postulates that there is no fundamental right to convert another person to one's own 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.”[xiv]

Recent Legislations on Anti-Conversion Law

The Madhya Pradesh government has approved Freedom to Religion Bill 2020 is set to follow two others [xv]BJP ruled states, that is, Uttar Pradesh (Vidhi Virudh Dharma Samparivartan Pratishedh Adyadesh, 2020)[xvi] and Himachal Pradesh in passing an anti-conversion law that outlaw religious conversion solely for marriage. The common objective of these three acts to check “unlawful religious conversion and interfaith marriages with the sole intention of changing girls' religion declared such marriages “shunya” (null and void) and to penalize conversions that occur without the state's prior approval, but it vary in the severity of the penalty and burden of proof placed on the accused. In addition, the MP legislation aims to safeguard the interests of women in such marriages.

Earlier Legislations

At least ten states already have anti-conversion laws. The key difference in the new legislation is that they seek to criminalise conversions solely for marriages.

MP Ordinance repeals the Madhya Pradesh Freedom of Religion, 1968. This ordinance aimed to criminalise force conversion. The new legislation adds provision related to conversion during the marriage, maintenance right and reversal of the burden of proof by placing it on the accused.[xvii]

Himachal Pradesh passed its law in 2019, repealing the Himachal Pradesh Freedom of Religion Act,2006. While the 2019 law has added provisions related to conversion for marriage, the aspect of prior declaration before the district magistrate existed in 2006 law as well.[xviii] As per this legislation, A.R Rahman will not liable as there is no forced conversion.

In 2019, a report by the Uttar Pradesh State Law Commission recommended a special law to address the incidence of forced conversion. In a draft Bill, submitted along with the report, the Commission recommended penalising fraudulent conversions including conversions solely for marriage. The Ordinance was promulgated subsequently.

What is the necessity of this Law?

“Anti-Conversion Law is necessary to maintain law and order in the society and to protect interest of all women”, Stated by UP minister Siddharth Singh.[xix] He also added more than 100 cases of forcible conversion has come to light how religious conversion are turned using deceit life force and dishonesty is heart-wrenching and it was necessary to have a law in this regard.

UP chief minister Yogi Adityanath, newly formed act on anti-conversion relied on an earlier decision of Allahabad High Court in Noor Jahan Begum @ Anjali Mishra and Another vs. the State of U.P., 2014[xx] held that “Conversion just for the sake of marriage was not acceptable.” He said that his government will ensure compliance with the ruling and also bring a strict law to put the check on love jihad.

Interestingly, politics caused around love jihad or Romeo jihad such words are not used in the ordinance. “Love jihad” is not defined under any existing law even no case reported yet. Sadly, Supreme Court ordered NIA in the Hadiya case, but no finding regarding the love jihad. This “Love Jihad” term coined by the Media in the same way words like “Tablighi Jihad” or “UPSC Jihad” given by them for spreading a feeling of communalism, disturbs the peace in the society and create communal votes bank. Haryana MP said the term “Love jihad” coined by Sangh Parivar outfits to describe an imaginary Muslim conspiracy to convert an ‘unsuspecting’ Hindu woman to Islam.