Anti-Conversion Laws in India – Challenges and Way Ahead

Anti-conversion laws enacted in various states are under scrutiny for their ambiguity and the lack of valid justifications for their existence. Vague terms used in them pose significant challenges to the fundamental rights provided by the Indian constitution. In this backdrop, the Supreme Court has recently agreed to examine the constitutional validity of Uttar Pradesh and Uttarakhand anti-conversion laws. However, it refused to stay these controversial legislations.

Did India have anti-conversion laws in the past?

• Princely states headed by Hindu royal families were the first to introduce laws restricting religious conversions during the British colonial era, especially during the latter half of the 1930s and 1940s.
• These laws were enacted to preserve Hindu religious identity amid British’s domination.
• There were over dozens of Princely states with such laws, including Kota, Bikaner, Jodhpur, Raigarh, Patna, Surguja, Udaipur and Kalahandi.
• Independent India also witnessed the introduction of anti-conversion bills in the Parliament, though none was implemented due to the lack of political support.
• In 2015, the Union law ministry stated that a law against forced and fraudulent conversions cannot be created at the national level since law and order is a state subject under the Indian Constitution.
• This means that the state governments have the power to enact such laws.

Which are the states that currently have anti-conversion laws?

• Over the years, the state governments implemented “Freedom of Religion” legislation to restrict religious conversions through force, fraud or allurement.
• Freedom of Religion laws are currently enforced in Odisha, Madhya Pradesh, Arunachal Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand and Uttarakhand.
• Majority of these laws ban religious conversion by force or allurement.

Which states recently passed anti-conversion laws?

Madhya Pradesh, Uttar Pradesh and Himachal Pradesh passed anti-conversion laws that outlaw religious conversion solely for the purpose of marriage. While the common feature of these laws is the declaration of such marriages as “null and void” and penalising conversions done without prior approval of the state, they differ in several aspects:

Prior Notice:

• Madhya Pradesh Freedom of Religion Ordinance, 2020, which repeals the 1968 law, requires a 60-day prior “declaration of the intension to convert” to the District Magistrate for the conversion to be valid, following which a couple from different religions can be legally married.
• Uttar Pradesh Prohibition of Unlawful Conversion of Religious Ordinance, 2020 also requires a 60-days-notice. However, it also requires the Magistrate to conduct police inquiry to ascertain the real intension behind the conversion.
• The Himachal Pradesh Freedom of Religion Act, 2019 that repealed the 2006 law requires a 30-day prior declaration of intension to convert.
• It should be noted that, in 2012, the Himachal Pradesh High Court struck down a similar provision in an older version of this law by observing it to be unconstitutional and in violation of fundamental rights.

Investigation:

• Section 4 of the Madhya Pradesh law requires written complaint of the person converted or the person’s parents or siblings for the investigation to be initiated by the police. They can file a complaint only with the permission of a court. Investigation of offences under this law can be conducted only by a police officer with/above the rank of sub-inspector.
• The UP law also allows the same people as allowed by the MP law to file a complaint.
• Under the Himachal law, the prosecution can be initiated only with the prior sanction of an officer not below the rank of a sub-divisional magistrate.

Burden of proof:

• Under the MP law, the burden of proving that the conversion was done in a legitimate fashion lies with the person converted.
• The Himachal law also has a similar provision.
• The UP law places the burden of proof, not on the converted person, but on people who “caused” or “facilitated” the conversion.
• Under this ordinance, if the Magistrate is dissatisfied, criminal action under Section 11 can be initiated against individuals who “caused” the conversion. This includes those who committed the offence, aided, abetted, counselled or procured people for committing the offences.

Maintenance and inheritance:

• Under the MP law, any marriage where a husband or wife has converted (even consensually) will be declared null and void unless prior notice is given to the state government.
• This law also seeks to protect the rights of women and their children from “null and void” marriages by giving them the right to maintenance.
• However, this law does not provide a recourse for ensuring the subsequent protection of marriage.
• Neither UP nor Himachal law has such provisions.

Offences:

• The offence of illegal conversion under the three anti-conversion laws is cognisable and non-bailable.
• This means that arrests can be made without warrant and bail is granted only by the discretion of the judge.
• Following are provisions on imprisonment as provided under the MP law:

1. Jail term between 1-5 years to an individual for converting or attempting to convert unlawfully.
2. Two to ten years sentence for unlawfully converting a woman, a minor or a person belonging to SC/ST
3. Three to ten years of imprisonment for concealing one’s religion during the marriage

• The UP law provides for the following:

1. Violation of provisions under this law would invite 1-5 years imprisonment with Rs.15,000 fine.
2. The repeat offences can lead to the doubling of the maximum sentence.
3. Men are awarded 2-10 years sentence and Rs.25,000 fine if convicted of causing conversion of a woman, a minor or a person belonging to an SC/ST.
4. Cancellation of registration of social organisations conducting mass conversions. This offence would invite 3-10 years jail term and a fine of Rs.50,000.

• As per the Himachal law:

1. An individual will be awarded 1-5 years jail term for converting or attempting to convert unlawfully.
2. If the converted person is a woman, a minor or a person belonging to an SC/ST, the sentence will be 2-7 years.

How are anti-conversion laws implemented?

• According to the 2016 and 2018 reports of the US Commission on International Religious Freedom (USCIRF), there were very few arrests or prosecutions under the anti-conversion laws.
• However, it was observed that these laws created a hostile and sometimes violent environment for religious minorities, as they did not require any evidence to support wrongdoings by accused.
• Religious minority leaders and adherents faced intimidations and arrests because of these laws.
• In over a month since the UP law was passed, 86 people were booked in 16 cases involving allegations of conversion for love or marriage among Hindus and Muslims. Of these, 54 individuals were arrested, including friends and family members of the main accused. The key accused in all these cases are Muslims.

What is the Special Marriage Act?

• The Special Marriage Act, 1954 is a central legislation that provides the framework for inter-caste and inter-religious marriages.
• Under this law, civil marriage can be registered in courts without requiring conversion to another religion.
• Originally enacted in 1872, various amendments over the years have failed to do away with the Victorian-era protectionist provisions in this law.
• The criticisms of this law are:

1. The law requires 30-day prior notice, during which time the details of the marrying couple are “prominently” displayed so that objections can be received. This provision, while intending to detect the possibility of fraud by one of the marrying parties, is proven to be troublesome as marrying couple face harassment from those against the marriage.
2. The 30-day notice, in some instances, is used by local authorities to impose even onerous conditions on couples.
3. No other religious marriage law in India requires to provide notice to the government or for third parties to object to a marriage. This provision makes families and others be aware of such an impending wedding and attempt to dissuade the couple.
4. When a member of an undivided Hindu family (including Buddhist, Sikh or Jain) gets married under this Act, it will result in his/her “severance” from the parental family. This denies them the right of inheritance.

What is the recent judgement by Allahabad High Court on the Special Marriage Act?

• Allahabad High Court had recently held that it is not mandatory under the Special Marriage Act to publish mandatory 30-day notice of their intension to marry.
• The court stated that this provision goes against the fundamental rights of liberty and privacy as well as the freedom of choice for marriage.
• The HC ruling does not have any direct bearing on the anti-conversion law implementation, as it exclusively focuses on the Special Marriage Act.
• However, this order will have an indirect bearing in the following respects:

1. The removal of the 30-day public notice requirement removes the need to take the conversion route, which was opted by many to avoid harassment because of inter-faith marriage. Since UP’s anti-conversion law only applies when there is a conversion by one party of the sake of marriage, SMA route removes the grounds for the invocation of the ordinance.
2. The order can help those who have been arrested and are seeking to challenge the provision of the recently passed anti-conversion law. The observation on privacy and the right to choose a partner, backed by relevant SC jurisprudence could be of use to such persons.

What is the Judiciary’s take on anti-conversion laws?

High Courts:

• September 2020 Allahabad High Court judgement was the basis for the newly enacted UP ordinance. The court held that conversion only for the sake of marriage is invalid. It should be noted that this case involved an appellant pleading protection from parents opposing conversion.
• The Uttarakhand HC, in November 2017, held that conversions for the sake of marriage a sham and urged the government to enact the law against such conversions. This became the basis for the Uttarakhand Freedom of Religion Act, 2018 – the first anti-conversion law that lists ‘marriage’ alongside other fraudulent means for conversion. However, this law does not prevent conversion solely for the purpose of marriage. Rather, it prevents marriages undertaken “solely for the purpose of conversion” by declaring them null and void.
• The Rajasthan HC, in December 2017, provided guidelines that would be enforced until the state enacted a law to curb “forcible conversions”. It stated that there is a dire need to protect the constitutional right to freedom of religion. The guidelines mandated advance notice of every conversion be provided to the district magistrate and marriages involving conversion should only happen at least a week following the conversion. The anti-conversion bill passed by the state failed to receive the President’s assent.

Supreme Court:

Stainislaus judgement:

• In the Stainislaus judgement, the Supreme Court upheld the constitutional validity of the Madhya Pradesh and Odisha anti-conversion laws.
• In this judgement, the apex court stated that these laws were meant to avoid disturbances to public order by prohibiting religious conversions “in a manner reprehensible to the conscience of the community” and that “forcible conversion could create public disorder”.
• It held that the right to freely profess, practice and propagate religion as laid down in Article 25 of the constitution does not include the right to convert.
• Article 25 says that all individuals have the freedom of conscience and the right to freely profess, practice and propagate religion.
• The right to propagate involves the right to disseminate one’s religious beliefs or exposition of the tenets of one’s religion. However, it does not include the right to convert another person to one’s own religion.
• Forced conversion goes against Article 25 as it impinges on the “freedom of conscience”.
• The top court also held that conversion is not a fundamental right and must be regulated by the state.

Hadiya Case:

• Matters of dress and of food, of ideas and ideologies, of love and partnership, are within the central aspects of identity.
• Neither state nor the law can dictate a choice of partners or limit the free ability of every person decide on these matters.
• The choice of a life partner, whether by marriage or outside, is part of an individual’s “personhood and identity”.

K.S. Puttuswamy case:

• The autonomy of the individual is the ability to make decisions in vital matters of concern to life.
• Any interference by the state in an adult’s right to love and marry has a “chilling effect” on freedoms.
• Intimacies of marriages exist within a core zone of privacy, which is inviolable.
• The absolute right of an individual to choose a life partner is not in the least affected by the matters of faith.

Lata Singh Case:

• The country is going through a “crucial transformational period”.
• The Constitution will remain strong only if we accept the plurality and diversity of our culture.
• Relatives disgruntled by the inter-religious marriage of the inter-faith couple could opt to “cut off social relations” rather than resort to violence or harassment.

What are the arguments in favor of anti-conversion laws?

• A committee led by Chief Justice of Nagpur Niyogi found that religious conversions were not “completely voluntary”.
• Forcible conversion of religion would involve several crimes, including wrongful confinement (Section 342 IPC), intimidation (Section 506 IPC), kidnapping (Section 359-369 IPC), assault (Section 352 IPC), the threat of divine displeasure (Section 508 IPC) etc.
• Anti-conversion laws safeguard human rights by preventing fake, fraudulent or deceitful premises of marriage.
• Legal remedies are provided by these laws for those who were duped or forced into conversion.

What are the arguments against recently passed anti-conversion laws?

Against UP ordinance:

• The law is criticised for the ambiguous terms used like “undue influence”, “coercion”, “allurement or marriage” for specifying the grounds for criminalising conversions.
• It is also difficult to ascertain whether a religious conversion is truly conducted solely for the purpose of marriage.
• The interpretation of these subjective terms is entirely left to the discretion of the judge.
• While this ordinance is not directly unconstitutional, there is a possibility of it being misused.
• This law also criminalises “mass conversion” – an incident where two or more persons are converted. This is considered to be a more serious event. It is arbitrary and illogical as it prevents family as a whole to convert to the religion of their choice. This offence would attract 3-10 years imprisonment.
• It also coins the term “Religion Convertor”, though there is no need for the assistance of a convertor or a witness for one to convert religion. By artificially introducing this concept, there is a possibility of harassment of a larger number of people.
• The law does not deem reconversion to be an offence. The reconversion can either be due to one’s own free will or through somebody else persuading them. This provision gives license to some individuals/organisations to do whatever they want to bring the converted individuals back to the folds of the ‘parent’ religion. Such processes would be described as ‘abetment, convincing or conspiracy’ by this law.
• The rationale for compensation for ‘victims of conversion’ is not provided by the law.
• The burden of proving that the conversion was ‘lawful’ lies on the person who ‘caused’ the conversion. This provision ignores the opinion of those who converted and the focuses only on the “converter”.

Other anti-conversion laws:

• These laws breach the right to privacy, choice and marital freedom.
• The mandatory prior declaration of the intention to convert violates the right to keep one’s faith secret.
• Publishing one’s personal details spreads the news to the family and the larger community, leading to the possibility of honour killings. More than 350 such killings have taken place over the last 6 years. Such cases largely remain under-reported and there are no legal provisions to prevent the same.

• These laws increase the potential of social discord and communal divides.
• They deprive the woman of her agency and in effect controls female sexuality.
• These laws are based on the assumption that women are incapable of deciding for themselves and are easy prey to forceful conversions
• These laws also restrict the freedom of marginal groups.
• They oppose the freedoms granted by provisions in the Special Marriage Act.
• There are already provisions in the Code of Criminal Procedure that protects against coercive conversions. Excessive legislation only criminalises day-to-day activities.
• Anti-conversion laws are indirectly policing intermingling of castes and faiths.
• There are no conclusive proofs regarding forceful conversions:
• The Centre informed the Lok Sabha that there is no case of love jihad reported by any of the central agencies.
• Investigations by the National Investigation Agency and the Karnataka Criminal Investigation Department also found no evidence of such conspiracy.
• The National Commission for Women maintains no data on love jihad.

What can be the way ahead?

• Marriage is a personal affair. The right to marry is an individual’s choice or to choose one’s partner is an aspect of constitutional liberty.
• The fundamental right to privacy protects one’s ability to make choices and decisions that are intimate.
• This right was upheld by the SC in the past and any law going against it must be repealed.
• The judiciary can do well by putting forth the principle that every citizen is free to take actions that are not harmful to oneself and others.
• Anti-conversion laws must be backed by a concrete study on the ground-realty of such forced conversions.
• If such issues are found to be a reality, the government can strengthen the existing legislation that protects against coercion and forceful conversions.
• These laws must be devoid of ambiguity so that they are not exploited.
• At the same time, it is the duty of the state to enable and facilitate inter-faith/inter-caste marriages. Allahabad HC ruling on SMA is a step in the right direction.

Conclusion:

The states have the constitutional authority to enact laws controlling religious conversions and inter-faith marriages. However, these laws must be backed by data, evidence and trends. At the same time, they must uphold the right to equality, right to freedom and personal liberty, the right to life and the right to privacy of the individuals concerned, with minimum interference from the state and society at large.

Practice question for mains:

Do you agree with the view supporting anti-conversion laws? Provide arguments for your stand. (250 words).