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KEY TAKEAWAYS

  • Right to Freedom of Religion is a Fundamental Right provided under Article 25 of the Indian Constitution.
  • This right also includes the right to propagate a religion, that would also include the willful conversion from one religion to another.
  • However, this has created a lot of controversies as there were instances wherein conversions were made through fraudulent means.
  • To prevent this, different states in India had come up with their own laws which prohibit and ban conversion by force, fraud, or for unlawful purposes.
  • There were also prohibitions of marriages solely solemnized for the purpose of conversions.
  • This was again debated as some activists view such laws as being violative of Article 21 of the Constitution.

INTRODUCTION

Religious Conversion is not a new phenomenon. Our country, and even the world in general, has witnessed such conversion even before thousand years from today and even more. Religious conversion is a pure form of business wherein some intermediaries are sent to a village or a town on a mission to convert as many people as they can. These people travel all over their world. The reason why this is more like a business is because these intermediaries receive grants for every conversion they make. Such instances are continuing even today. Innocent people are brainwashed to leave religion and follow another. However, this is not the only way of conversion. People, on their own choice, also tend to convert themselves to another religion. This happens when they analyses the customs and practices in different religions, and tend to choose the suitable one. Let’s take the example of Dr. B. R. Ambedkar. He was a born Hindu. But, due to his “so-called” lower caste, he was discriminated and ill-treated by the upper castes. This prevented him all of the rights which are essential for life, liberty, and dignity. His bitter experiences are reflected in the structure of our Indian Constitution, wherein the man has emphasized on Fundamental Rights of the citizens more than anything else. Dr. Ambedkar got converted to Buddhism. This was because he did not like the prevailing practices in the society that differentiated people based on caste, religion, status, gender, race, etc. As we all know, Buddhism, a religion revealed by Gautama Buddha, was among the rare religions that treated each of its disciples equally. The principles embodied therein are ideal, and Dr. Ambedkar was inspired by its teachings, and decided to follow the religion itself. However, while reading about the conversion story of this Founding Father of our Constitution, one thing is that we all are sure about is the fact that he was neither forced nor brainwashed by anyone to convert to Buddhism, and rather it was his own decision. Consequently, the same has been made a Fundamental Rightunder the Indian Constitution. However, at present, this right is being misused by some fanatical individuals, which is defeating the very purpose of this right and the law that governs it.

RELIGIOUS CONVERSION UNDER THE INDIAN CONSTITUTION

The basic structure of our Constitution enunciates that our Country is Secular in nature. This means that we do not recognise one particular religion as our national religion, nor do we abandon the practice of a religion as anti-national. Therefore, we see that India is a home to almost all of the major religions in the world. This also gives a scope for people to look into the merits and demerits of the religions, and consequently, get influenced by one among them. The real question of rights comes into picture when people decide to embrace a religion other than their own. However, to tackle this issue, the Constitution of India, under Article 25, guarantee the right to profess, practice, and propagate a religion of their choice. Article 25 states that a person has the freedom of conscience and can freely profess, practice, and propagate religion. However, this Article does not give a person the right to convert another person to his/her own religion.

The right to propagate a religion

This right, in particular, is relevant to understand whether the Indian law gives a person to convert from one religion to another. According to this, a person has the independence to change his religion. The law views it as completely a matter of faith and choice. If one doesn’t have faith in his birth religion, he may choose to leave it and convert to some other in which he believes. However, there are also some loopholes in this right. Say for instance, a Hindu man intends to practice bigamy/polygamy. Though, the law governing Hindu marriages doesn’t allow such practices, there might be other laws which permit the same. For instance, the Mohammedan Law allows a man to have a maximum of four wives. So, going back to instance, this Hindu man may wish to convert to Islam for the sole purpose of entering into a second marriage. Well, this is not something that was expected by the framers of the Constitution. Similarly, some people may convert to another religion but still demand reservations. There are also instances where people reconvert back to Hinduism for reservation purposes. Young girls are, sometimes, influenced and brainwashed to convert to the religion of the boys for marriage purposes. So, in all these cases, it is clear that religious conversion is not only a matter of right, but also includes a lot of other issues. Realising the issues involved in this right, several states have come up with statutes regulating such conversions by preventing what they claimed to be “unlawful conversion”. However, more recently, even the provisions of these laws are subject to criticisms. The validity and legality of these Acts are also questioned.

COURTS ON RELIGIOUS CONVERSION

1) Yulitha Hyde vs. State of Orissa (1973)

In this case, the Orissa Freedom of Religion Act was challenged as ultra vires to the Constitutional principles. The legislation was challenged on two grounds, one, that the State has no authority to make the law, and two, that the same infringes the right under Article 25 of the Constitution. The Orissa High Court allowed the petition, and held the Act to be invalid. It also stated the State has no authority to enact such laws.

2) Rev Stanislaus vs. State of Madhya Pradesh (1974)

Here, the Madhya Pradesh Swatantra Adhinayam Law was challenged by Rev Stanislaus, a Christian Priest. The law was challenged on the same grounds as stated in Yulitha Hyde vs. State of Orissa. However, the Madhya Pradesh High Court took a different view. It upheld the Act stating that conversion by fraud, force, coercion, or allurement is illegal, and therefore, the same would not contravene the right under Article 25.

3) Rev Stanislaus Case (1977)

When both the cases reached the Supreme Court, the five-judge Bench upheld the judgement of the Madhya Pradesh High Court. It ruled that States have the power to make such laws as they have the duty to maintain public order. With respect to the second issue, the Apex Court held that the right under Article 25 of the Constitution does not include the right to convert another person to one’s own religion. If that is permitted, then it would violate the freedom of conscience under the Article. Despite controversies, the judgement has not been reconsidered, and still serves as a precedent.

It is clear from the above analysis that our Country has recognized secularism, but at the same time, it is also cautious on matters relating to religious conversion. This is to say that India prohibits unlawful activities in the name of propagation of religion. The Apex Court had also held that states are empowered to enact laws preventing illegal conversions to maintain law and order. This has encouraged more states to come up with such Anti-conversion laws.

STATE LAWS ON RELIGIOUS CONVERSION

The states of Orissa and Madhya Pradesh were the first to pass a law restricting mala fide religious conversions, way back in 1967 and 1968. When the constitutional validity of these statutes was upheld by the Apex Court, more states got the spirit of enacting their own laws. Following Orissa and Madhya Pradesh, Arunachal Pradesh in 1978, Chhattisgarh in 2000, Gujarat in 2003, Himachal Pradesh in 2006, Uttarakhand in 2018, and Uttar Pradesh in 2020, have passed their respective laws banning forceful religious conversions. Tamil Nadu had passed a similar Act in 2002 but later repealed it. So, as of now, there are eight states in India with such anti-conversion laws.

Analysis: Merits and Controversies

It is a widely accepted fact that the main aim of enacting such anti-conversion laws is to prevent unlawful conversions by force, coercion, fraud, etc. Though this is not violative of our Freedom of Religion, yet, sometimes, the provisions contained therein can also clash with our other rights. For instance, the Uttar Pradesh Prohibition Of Unlawful Conversion of Religion Ordinance, 2020 states that a month prior notice to the District Magistrate is compulsory before performing any conversion ceremony. Similarly, the Act mandates the submission of a declaration of conversion by such persons within 60 days after the conversion has taken place. Failure to comply with the above provisions would attract punishment of six months to three months. Besides, marriages done for the sole purpose of religious conversion is also declared invalid. Not only the Uttar Pradesh Act, but also other such State Acts have similar provisions. Experts and activists claim that such laws are horrifying, and it would infringe the right to liberty and dignity guaranteed under Article 21 of the Constitution. They have alleged that making the offence non-bailable and imposing amaximum punishment of 10 years for such unlawful conversion is superfluous when compared to the nature of the Act.

RECENT CASES

Initially, petitions were filed before the Allahabad High Court challenging the Uttar Pradesh Anti-conversion Act. Similarly, there were petitions against other States’ Acts too. The matter went up to the Supreme Court by the end of the year 2020. The petitioners challenged the constitutional validity of the anti-conversion laws. Besides protecting unlawful conversions, the Acts give way to oppressions and false implications. For instance, the Muslim population has claimed that they are being predominantly targeted under this law in Uttar Pradesh. Similarly, there are instances wherein some people were arrested in the middle of a marriage on the suspicion of unlawful conversion. This, the petitioners and their advocates, see as an infringement of the right to marry and privacy. However, before reaching the Supreme Court, the matter was already heard by different High Courts.

1) Uttarakhand High Court' Judgement, 2017

In November 2017, the Uttarakhand High Court suggested the State Government to come up with a law for curbing unlawful conversions in the State. This judgement gave way to the enactment of the Uttarakhand Freedom of Religion Act in 2018. It was observed by the High Court that conversion for the purpose of marriage is not illegal, but marriage for the purpose of conversion illegal.

2) Rajasthan High Court’s Judgement, 2017

The Rajasthan High Court too, in December 2017, suggested for the enactment of an Anti-conversion law in the law. Moreover, the High Court gave guidelines to be followed until the passing of the Act. It mandates prior notice to the District Magistrate, and also mandated marriages involving conversion to take place a week after such conversion had taken place. It is to be noted that the State does not have any such religious law till now.

3) Allahabad High Court’s Judgement, 2020

The Allahabad High Court, in September 2020, held that marriages for the sole purpose of conversion are null and void.

This gave way to the passing of a new Ordinance in Uttar Pradesh, which is also known as the “Love Jihad Law”. The controversies surrounding the Anti-conversion laws reached a new high with the passing of this Ordinance. There were several petitions before the Allahabad High Court against this new Ordinance. This matter was also placed before the Supreme Court. The Uttar Pradesh Government approached the Apex Court under Article 139A of the Constitution seeking its direction to transfer all the related petitions pending before the Allahabad High Court to itself. The Uttar Pradesh Government found it inappropriate for the Allahabad High Court to hear the matter which is also pending before the Supreme Court.

4) The Supreme Court’s Decision

The Supreme Court Bench decided to hear the arguments on the case in general, but did not agree to transfer the cases before the Allahabad High Court to itself. However, the Bench later decided to wait for the observations of the Allahabad High Court. It also did not agree to stay the impugned laws.

CONCLUSION

Right to profess, propagate, and practice a religion is a very important right, especially, for a country like India. As seen above, there are instances of people willfully converting to another religion. This is where Article 25 of the Constitution comes into picture. Such people are thus protected from arrests and harassments. However, this right had also encouraged people to take the responsibility to convert others to their own religion. For example, the minorities, who have fewer followers, hope to expand their religion by bringing in more people. This is possible with conversion. Therefore, States were compelled to enact such Anti-conversion laws. However, it is the duty of the lawmakers to carefully analyze the Bills that they draft. Besides protecting the intended right, it should also refrain itself from harming other rights. For example, in the religious conversion acts, we clearly see that there is harm to our rights under Article 21. This should be the first thing that needs consideration, otherwise the question of its validity will surely pop in. It is, therefore, imperative for states to draft laws that create a balance between its duty to maintain the public law as well as the citizens’ rights.


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