Criminalizing Religious Conversions: For Better or For Worse

Criminalizing Religious Conversions: For Better or For Worse

“Love Jihad” is a pejorative term coined by the right-wing groups to promote the questionable theory that Muslim men fraudulently entice Hindu women into marrying them with a "wicked intent" of converting them to Islam.

In the past few weeks, the term has got a lot of public attention after the Chief Ministers of several states including Manohar Lal Khattar (Haryana), B.S. Yedurappa (Karnataka) stressed on the enactment of a special legislation for criminalizing and imposing stringent punishments on forceful and deceitful religious conversions in the garb of marriages.

While most of these states have formed drafting committees for the framing of such law, the Uttar Pradesh government has already cleared the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 (hereinafter “Ordinance”) to check the cases of “fraudulent” or “forced” religious conversions.

The Ordinance got the Governor’s assent on 28th November 2020 and on 3rd December 2020 the first arrest under the Ordinance was made by the U.P. Police in Bareilly.

Although the Ordinance nowhere mentions the term “Love Jihad” nor it expressly targets any particular religious group, it has been widely criticized for being Islamophobic owing to the comments made by the Chief Minister of U.P. on Love Jihad weeks before the promulgation of the Ordinance.

The former SC judge Justice Madan B. Lokur has criticized the Ordinance and described it as “placing on the backseat the freedom of choice and dignity”. Recently, a PIL challenging the Constitutional validity of the Ordinance has also been filed in the Supreme Court of India (hereinafter “SC”).

In this blog, the author delineates the legislative intent of the Ordinance and analyses its constitutional validity in light of the judicial trend vis-à-vis inter-faith marriages.

Background

Attempts to enact anti-conversion laws are made since the colonial era and a number of princely states already had their anti-conversion laws. For instance, the Rajgarh State Conversion Act, 1936, the Patna Freedom of Religion Act, 1942, etc.

After the Independence, the first anti-conversion bill, i.e., the Indian Conversion (Regulation and Registration) Bill was introduced in the Parliament in 1954, however it failed to get the majoritarian support. Subsequently in 1960, the Backward Communities (Religious Protection) Bill and in 1979, the Freedom of Religion Bill were introduced to regulate the practice of religious conversion but none of them saw the light of the day.

Owing to the reluctance of Parliament in passing a Central anti-conversion law, the Odisha government passed the first anti-conversion law in the year 1967. Following the footsteps of Odisha, at least 10 states, namely Madhya Pradesh, Arunachal Pradesh, Gujrat, Uttarakhand, Tamil Nadu, Chhattisgarh, Jharkhand, Rajasthan and Himachal Pradesh also enacted anti-conversion laws in their respective states.

In a bid to catch up with other states, on 21 November 2019, the U.P. State Law Commission in its “Eighth Report on Freedom of Religion” recommended to enact the Uttar Pradesh Freedom of Religion Bill, 2019 to check on the cases of religious conversions that are made in the garb of allurement, misrepresentation or any fraudulent means.

Acting on the said recommendation, the government enacted the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020. This law is enacted by way of an ordinance due to which it will have to be confirmed through voting in the State Assembly within the next six months.

It is significant to mention that the Ordinance came close on the heels of the Allahabad High Court’s verdict in Salamat Ansari v. State of U.P. where it was observed that “interference in a personal relationship would amount to serious encroachment into the individual’s right to freedom of choice”.

Constitutional Analysis of the Ordinance

There are several provisions in the Ordinance that are not only violative of the Constitution of India (hereinafter “Constitution”) but also have the tendency of becoming a potential tool for violence against interfaith couples. For instance, converting a person by offering him/ her an “allurement” is defined as a criminal offence under Section 3 of the Ordinance.

The term “allurement” is broadly defined under Section 2(a) of the ordinance to include even a gift to the individual to be converted. This implies that if a Christian is gifting a copy of the Holy Bible to a Hindu, and after reading the Holy Bible the Hindu decides to convert to Christianity, then the said conversion will be categorized as a conversion by allurement under the Ordinance.

In addition, Section 3 of the Ordinance prohibits religious conversions not only through allurement, misrepresentation, deceitful tactics or forceful measures but also through marriage. Section 5 of the Ordinance states that any contravention of the provisions of Section 3 will result in imprisonment for a term ranging between one to five years that may be accompanied with a fine.

Provided that if the said contravention is made in respect of a woman, a minor or a person belonging to Scheduled Caste or Scheduled Tribe, then the imprisonment will not be less than two years and may extend to ten years along with a maximum fine of twenty-five thousand rupees. It further states that, if mass conversion is taking place in violation of Section 3, then the punishment shall not be less than three years along with a maximum fine of fifty thousand rupees.

The said provision is violative of the Constitution as it does not consider cases of individuals seeking conversion on their free will. The SC in Shafin Jahan v. Asokan K.M (hereinafter “Hadiya case”) recognized the right to convert as an intrinsic part of right to life and personal liberty.

This reasoning was echoed in Shakti Vahini v. Union of India and the SC emphasized that the right of a person to marry a person of their choice regardless of their religion is part and parcel of their fundamental right under Article 21 of the Constitution.

The High Courts of Delhi, Karnataka and Allahabad have also reiterated the constitutional right to marry anyone regardless of their religion or caste and a recent survey carried out on the Allahabad High Court in the month of November 2020 reveals that it has granted protection to more than one hundred inter-caste and inter-faith couples.

Besides, the SC in Lata Singh v. State of Uttar Pradesh clarified that marrying a person at one’s own discretion cannot be counted as an offence. Even in K.S.Puttaswamy vs Union Of India (hereinafter “Privacy judgement”), while upholding the right to privacy, the SC noted that, “Privacy includes the preservation of personal intimacy, marriage, procreation, the sanctity of family life sexual orientation. Personal choices regarding any of these are intrinsic to privacy.

Apart from this, Article 16 of the Universal Declaration on Human Rights also establishes the right of men and women to marry with the partners of their own choice. Since India is a signatory of the UDHR, this provision of the Ordinance has the effect of subverting India’s international obligations.

Interestingly, the proviso to Section 3 states that the conversion of any individual to his/her original religion, whether by allurement, force or any fraudulent tactic, is not punishable under the Ordinance.

This clause is violative of Article 14 of the Constitution as it provides differential treatment, without any reasonable classification, to the class of individuals associated with conversion juxtaposed with those associated with re-conversion.

It also goes contrary to the object of the Ordinance, i.e., prohibition of unlawful conversion from one religion to another by allurement, misrepresentation, force, etc. The SC in P. Rajendran v. State of Madras observed that for a valid classification under Article 14, there must be a nexus between the classification and the object of the legislation.

Furthermore, Section 8 and 9 of the Ordinance lay down the procedures for pre and post declaration of conversion of religion respectively. These provisions amount to an unreasonable intrusion into the personal autonomy of an individual as they mandate a 60-day advance notice to the District Magistrate before the intended conversion, with a subsequent police investigation to assess the intent, cause and purpose of the proposed religious conversion.

The religious convertor performing the said conversion is also required to abide by the rules and give 1-month advanced notice to an officer not below the rank of Additional District Magistrate. A similar kind of notice requirement was mentioned in the Himachal Pradesh Freedom of Religion Act, 2006.

The Himachal Pradesh High Court in Evangelical Fellowship of India v. State of Himachal Pradesh while declaring such a requirement unconstitutional observed that, “A person not only has the right of belief and the right to change his beliefs, but also the right to keep his beliefs secret”. A 9-judge bench of the SC in the Privacy judgement has also affirmed that, “The freedom of religion includes a freedom to express or not to express the choice of a person's religion to the world”.

Moreover, after the conversion, the individual is required to appear before the District Magistrate for confirmation and then before confirmation of the conversion, the authorities will exhibit a copy of declaration on the notice board of their office and will invite public objections.

Such a procedure has the potential to reinforce social asymmetries and energize community groups to disempower an individual’s choice. In this regard, the SC in the Hadiya case observed that if two adult individuals agree to enter into a wedlock, then the consent of the family or the clan or the community is not necessary for its substantiation.

Concluding Remarks

In view of the conservative nature of the Indian society, inter-faith marriages are frequently opposed and, in some cases, it even leads to honour killings. Over the past few years, crimes and killings in the name of religious conversions have increased manifold, and no government, including the present one, has taken any effective measure to resolve it.

On the contrary, some state governments are coming up with laws criminalizing religious conversions, which would reinforce hostile behaviour towards inter-faith couples.

The analysis presented in this blog makes it evident that the Ordinance would not only have a chilling effect on an individual’s freedom of choice but would also be antithetical to the secular fabric of the country.

Moreover, when it comes to the test of constitutionality, the Ordinance doesn’t hold much water as it violates a number of fundamental rights guaranteed under the Constitution and therefore it needs to be rolled back at the earliest.

(The author is a third-year student at the Dr. Ram Manohar Lohiya National Law University, Lucknow)

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