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.
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.
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.
BJP MP Krishnan Reddy in parliament said that “Article 25 of the constitution provided for the freedom to profess, practice and propagate religion subject to public order, molarity and health.” This law not prohibiting the re-conversion but conversion. The core of fundamental right is individual especially in the case of equality, liberty and religious freedom. But this act provides conversion against the community. Most importantly, Article 213 provide ordinances making power to the governor in the case of emergency. It is clearly a misuse of power by the governor to allow to enact such ordinance in the absence of assembly.
Ads of Tanishq, surf excel etc, which tries to create a feeling of communal harmony than those claiming themselves protector of Hinduism create disturb the peace, hinders development and violates basic principles of the constitution. Tanishq had withdrawn the ad given the “hurt sentiments” to ensure the well-being of its employees and partners.
If it is found that conversion is done forcibly, through atrocity or cheating, then the offence will be “non-bailable”. The quantum of punishment given under this act is equivalent to the punishment for offences like rape, culpable homicide, murder etc, under IPC, this ordinance stands contrary to constitution ideals, and preamble values.
This anti-conversion law is not less than honour killing. In Bhagwan Dass v. Delhi, 2011[xxi], SC held that honour killing is the “rarest of rare” category of crimes that deserve the death penalty. So, killing or punishing the lovers in the name of a religious conversion or saving caste, must dilute its effects otherwise our Indian Constitution loses its existences.
Anti-Conversion Law: Correlation between Privacy, Choose and Position of Women
Prevent Pollution of Race
In a patriarchal world, co-opting a woman from another religion is seen as a win while losing a daughter is losing honour.It assumes that women have no independent thinking and cannot make decisions concerning marriage and choice of religion. In Ancient time, Hindu Sanskriti provides the Right to Choose Swarnvarna. Those individuals have the belief that before and after marriage, women are only the property of the Father and Husband, are just devoid of constitutional values and Hindu cultures.
Hilter had said in his speech that “Women are born to give birth to a child and prevent the pollution of the race, that is, greatest honour to them.” The women have only work to maintain the purity of the Nazi breeding by avoiding contact with any non-Aryans male and restricted herself towards Aryan man. In the name of a master race, forced monogamy, abduction, and the assassination of babies were all carried out. The distinction between private women and public women, maintain the notion’s pride only through original blood. Similarly, the caste system restricted Women’s choice to marry below their caste man to maintain the purity of blood. This act clear manifestation to claim right over women’s body and control the sexuality of women.
In India, the hooliganism of so-called "anti-Romeo" squads is causing a stir. The squad was established to combat cases of sexual abuse of girls in Uttar Pradesh's northern state, has devolved into a vigilante gang targeting unarmed civilians. Parties aim to suppress women's right to choose a spouse in the name of "Love Jihad." This is a direct breach of Article 21 (which includes the right to privacy, which was recently upheld in Puttaswamy's case, as well as the right to choose and the right to conversion).
Violation of Article 21 (Right to Choose and Privacy)
In the Soni Gerry Case[xxii]of 2018, the Court acknowledged the sanctity of personal space, in the space of marriage and family life. The Supreme Court cautioned guardians against behaving as "super-guardians" and succumbing to "some kind of maternal instinct or stoic egotism." The freedom to choose a spouse, irrespective of race, creed, or religion, is embedded in the right to life and personal liberty, which is an integral part of the Constitutional Right under Article 21 of the Indian Constitution.[xxiii]
The Supreme Court has very clearly laid down the law regarding inter-faith and inter-religious marriages in the case of Lata Singh v State of Uttar Pradesh[xxiv], a judicial note of abuse track made out to young women and men who married outside their caste or religion and held that:
“In a democratic state, no one can assault or intimidate a couple who are major entangled in an interfaith marriage, if anyone dares to do so, they will face criminal charges. Parents can cut off from their wards if they do not approve of inter-religious marriage but cannot instigate violent act or harass them.”
The apex court held that India is going through a “crucial transformational period” and the “Constitution will remain strong only if we accept the plurality and diversity of our culture”. Relatives disgruntled by the inter-religious marriage of a loved one could opt to “cut off social relations rather than resort to violence or harassment”.
The Court held in K.S. Puttuswamy Case, 2017[xxv] that Individual autonomy is described as the capacity to make decisions in matters related to his or her life without any outer interferences.
“The freedom to marry a person of one's preference is integral to Article 21 (right to life and liberty),” the Supreme Court ruled in the Hadiya case.[xxvi] “The choice of a partner for the marriage, whether within or outside caste is solely up to the woman or man. Marriage's intimacies are found within an immutable zone of privacy.” The Supreme Court ruled that a person's right to marry and choose a religion is an integral part of her meaningful life. Neither “government” nor "patriarchal dominance" will intervene in her affairs.
The core aspects of identity include clothing and food, beliefs and philosophies, love and relationship, and so on. Neither the state nor the law can impose a spouse's preference or restrict a person's freedom of choice in these matters.
In Salamat Ansari v. Priyanka Kharwar, 2020[xxvii], the Allahabad High Court overturned its previous ruling on interfaith marriages. According to the courts, the right to live with a person of his or her choosing, regardless of religion professed by them, is intrinsic to the right to life and personal liberty. Interference in a personal relationship would be a grave infringement on two people's right to make their own decisions.”
“We fail to understand if the law permits two people the same gender to live peacefully together, then neither an individual, a family, nor even a state may object to the relationship of two major individuals who are living together of their own free will,” the judges observed. The freedom to choose a companion, regardless of caste, creed, or religion, is embodied in the right to life and personal liberty (Article 21) of the Indian Constitution.
In Palash Sarkar v. The State of West Bengal,2020[xxviii], the court recognised the major have the right to marry as per his/her choice and convert to another religion. The private relationship cannot be encroached upon due to religious factor. The High Court has ruled in favour of an individual's right to marry whomever they like over the paternalistic desire to control marriage.
Sociologists believe mixed marriages, be they inter-religion or inter-race, help in the socio-cultural assimilation of communities and facilitate better integration into society. These ten copy-paste legislations brought by BJP or Congress government in different states is clear attack on Ambedkar’s ideals or values and very principle of secular democracy that has been let down in our constitution. From the legal protest preceptive the act is no less of blunder as it sees religious conversion has an irreversible process. It fails to take into consideration that anybody can always change back to particular religion or some other, if they feel dissatisfied with their present one.
[i]S.R Bommai v. Union of India, AIR 1994 SC 1918. [ii] Constituent Assembly Debates, 126. [iii] H.M Seervai, Constitutional Law of India 1289 (Universal Law Publishing, 4th edition, 2013). [iv] The Constitution of India, arts.21 and 25. [v] The Universal Declaration of Human rights,1948, art.18. [vi] Ratilal Panachand Gandhi v. State of Bombay, AIR 1954 SC 388. [vii] AIR 1970 SCR (1) 103. [viii] Anti-Conversion Statutes,India, available at: https://www.thehindu.com/sunday-anchor/propagation-without-proselytisation-what-the-law-says/article6711440.ece (last visited on 28 March,2021). [ix] Lalit Mohan Suri (ed.), The Current Indian Statutes 5 (Chandigarh: Law Register Press, 1968). [x] The Orissa Freedom of Religion Act, 1967. [xi] AIR 1973 Ori 116. [xii] Ibid. [xiii] Rev. Stanislaus vs State, A.I.R 1975 M.P. [xiv] Ibid. [xvi] Prohibition of Unlawful Religious Conversion Ordinance, 2020. [xvii] The Madhya Pradesh Freedom of Religion Ordinance, 2020. [xviii] The Himachal Pradesh Freedom of Religion Act, 2019. [xix] Media Keeps Adding Fuel to Love Jihad, available at: https://countercurrents.org/2020/12/media-keeps-adding-fuel-to-love-jihad-fire/ (last visited on March 20,2021). [xx] AIR 2011 6 SCC 396. [xxi] Writ-C No.57068 of 2014. [xxii] Soni Gerry v. Gerry Douglas, AIR 2018 SC 346. [xxiii] Salamat Ansari v State of UP, AIR 2020 SCC OnLine All 1382. [xxiv] Lata Singh v State of Uttar Pradesh (2006) 5 SCC 475. [xxv] Justice K.S. Puttaswamy v. Union of India (2017) 10 SCC 1. [xxvi] Shafin Jahan v. Asokan K.M., AIR 2018 SCC OnLine SC 343. [xxvii] Salamat Ansari v State of UP, AIR 2020 SCC OnLine All 1382. [xxviii] AIR 2020 SCC OnLine Cal 530. AUTHOR’S DETAILS Tanya Jaiswal 4th Semester, B.A L.L. B (HONS.) Faculty of Law, Jamia Millia Islamia