RIVALRY BETWEEN THE ANTI- CONVERSION LAWS AND THE JURISPRUDENCE OF SECULARISM

INTRODUCTION

After the forty second Amendment of the Indian Constitution in 1976, the Preamble to the Constitution affirmed that India is a secular nation. The soul of our nation has always remained secular and it is clear from the fact that after independence, India consciously chose to be a secular welfare state by accepting the multi- religious nature of its pluralistic society. It is pointed out that in India “If life can be likened to a pie, religion is not one piece of that pie alongside the pieces labelled politics, economics, social structure, education and law. Rather, religion is the fruit found in each and every piece of the pie.”[1] Religion is considered as a matter of faith, choice or a set of belief. Religious conversions are always a matter of discussion in the Country. Recently public interest litigation[2] has been filed in the Supreme Court seeking directions to the centre and state governments to control religious conversion, black magic and superstition through gifts and monetary benefits. The PIL has also sought directions to ascertain the feasibility of appointing a committee to enact a Conversion of Religion Act to check the abuse of religion.

ANALYSIS OF ANTI CONVERSION LAWS IN INDIA

The term religion has no specific definition and the Constitution of India does not define it. It is a very wide concept. According to Webster’s Comprehensive Dictionary, religion means a belief binding the spiritual nature of man to a supernatural being as involving a feeling of dependence and responsibility, together with the feelings and practices which naturally flow from such a belief. India as a secular nation does not have any state religion and every citizen of our nation is left free to choose the religion of their choice. For facilitating this, the Article 25 of the Indian constitution provides the freedom to practice, profess and propagate any religion to all persons. Even though the states in India do not have any religion, the state governments play a significant role in terms of associating law and religion. India being a heterogeneous society comprising different religions, cultures, races, castes and languages non secular conversion has always been a matter of debate. More than that, religious conversion is a varied and multidimensional anomaly persisting in the nation. In India there is no anti- conversion law at the central level. India’s anti- conversion laws (Freedom of Religion Acts) are state enacted statutes to govern religious conversions. The main object of these laws is to prevent the religious conversions that are not purely voluntary. Eight out of twenty nine states in India have enacted such laws (Arunachal Pradesh, Odisha, Madhya Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, and Uttarakhand).[3]  Even though there are some variations between these laws, they are very similar in their content and structure. However, the anti-conversion laws in Rajasthan and Arunachal Pradesh excludes reconversions to “native” or “original” faiths from their prohibitions. 

Odisha was the first state to enact anti-conversion legislation, the Orissa Freedom of Religion Act, 1967.[4]  Section 3 of that Act stipulates that “no person shall convert or attempt to convert, either directly or otherwise, any person from one religious faith to another by the use of force or by inducement or by any fraudulent means nor shall any person abet any such conversion.” [5]Crimes under this Act are cognizable offenses (an investigation or an arrest can be made without a warrant or authorization of a court). 

The Anti-conversion provisions of the State of Arunanchal Pradesh are contained in the Arunachal Pradesh Freedom of Religion Act, 1978, and are similar to the statues enacted in Orissa and Madhya Pradesh.[6] This law was passed in view of the perceived threat to indigenous religions.[7]

The State of Madhya Pradesh was the second state to enact an anti-conversion law, the Madhya Pradesh Freedom of Religion Act, 1968.[8]  Instead of using the term “inducement,” the Act uses the term “allurement,” which is defined under section 2(a) as an “offer of any temptation in the form of (i) any gift or gratification, either in cash or kind; (ii) grant of any material benefit, either monetary or otherwise.”[9] The new Madhya Pradesh Freedom of Religion Act is in force now. The aim of the law according to the government is to stop forced religious conversions on the pretext of marriage, and the use of force, misrepresentation, or other fraudulent means for conversion. Under the new law, a person who wants to undergo a religious conversion of their own free will, and the priest who carries out the religious conversion, will have to give notice to the district officer at least 60 days before the intended date of conversion.

Chhattisgarh retained the anti-conversion law of Madhya Pradesh and adopted it under the title Chhattisgarh Freedom of Religion Act, 1968. The subsidiary rules for implementation of the Act were also retained.

The anti-conversion law in the State of Gujarat was enacted as the Gujarat Freedom of Religion Act, 2003.[10]  The purpose of the Act is to prohibit conversions from one religion to another by the use of force, allurement, or fraudulent means. Section 3 of the Gujarat Freedom of Religion Act, 2003 prohibits forcible conversion and states that “no person shall convert or attempt to convert, either directly or otherwise, any person from one religion to another by use of force or by allurement or by any fraudulent means nor shall any person abet such conversion.”[11] Unlike the legislation of other states, however, the wording of the definition of “convert” is slightly different, and means “to make one person to renounce one religion and adopt another religion.”[12] Unlike the other state acts where only prior or subsequent notice is required, under section 5 of the Gujarat Act, a person wanting to convert must seek prior permission from the District Magistrate with respect to the conversion.[13]  The section also requires the person who is converted to send a notice to the District Magistrate of the “district concerned in which the ceremony has taken place of the fact of such conversion within such period and in such form as may be prescribed by rules.”[14] The amendment bill known as the Gujarat Freedom of Religion (Amendment) Act, 2006, was passed and its object was to replace section 2(b) of the original Act, which defined the term “convert,” and to provide explanations with more clarity.  The Statement of objects and reasons of the Act shows that the amendment was sought to clarify that the provisions of the Act “shall not apply to inter-denomination conversion of the same religion.”

The Himachal Pradesh Freedom of Religion Act, 2006[15] is “modelled on existing anti-conversion laws in other Indian states” and came into effect on February 18, 2007. Section 3 of the Act prohibits conversion “by the use of force or by inducement or by any other fraudulent means.”[16] One important difference, is that “the proviso to the prohibition clause of the Himachal Pradesh Act further goes on to declare that ‘any person who has been converted from one religion to another, in contravention of the provisions of this section shall be deemed not to have been converted.’”[17] The Himachal Pradesh Act also uses the term “inducement” instead of “allurement.”[18]

The Tamil Nadu Prohibition of Forcible Conversion of Religion Ordinance 2002[19] was issued, but was subsequently replaced by the Tamil Nadu Prohibition of Forcible Conversion of Religion Act 2002[20] in the same year.  This Act adhered to the general framework as laid down in the Orissa Freedom of Religion Act.

In 2017, the High Court of Uttarakhand issued a decision in the context of a habeas corpus petition suggesting that the state government pass an anti-conversion law. The petition sought the production of one Ms. Sharma, who had allegedly married a Husain Ansari (alias Atul Sharma). Mr. Sharma’s conversion to Hinduism as well as his marriage to Ms. Sharma was contested in the case.[21] In this case the Court pointed out that this case was not the first it had considered involving inter-religious marriages, and that in some of these cases conversion was a “sham” undertaken to “facilitate the process of marriage”: It was held that in order to curb this tendency, the State Govt. is expected to legislate the Freedom of Religion Act on the analogy of Madhya Pradesh Freedom of Religion Act, 1968 as well as Himachal Pradesh Freedom of Religion Act, 2006, without hurting the religious sentiments of citizens.

SECULARISM AND ANTICONVERSION LAWS

In determining whether the anti- conversion laws are constitutional, the question whether ‘right to convert’ comes under the scope of ‘right to propagate any religion’ holds fundamental importance. The term “propagates” under the Article 25 means to promote or transmit or merely a freedom of expression. The Supreme Court in the case of Stainislaus Rev. v. State of M.P,[22] held that the right to propagate one’s religion means the right to communicate a person’s beliefs to another person or to expose the tenets of that faith, but would not include the right to ‘convert’ another person to the former’s faith because the latter person is “equally entitled to freedom of conscience” which words precede the word ‘propagate’.[23]

As the Article 25(1) also stipulates that the right is subject to “public order,” the Court also found that the acts “clearly provide for the maintenance of public order for, if forcible conversion had not been prohibited, that would have created public disorder in the States,” and that “the expression ‘Public order’ is of wide connotation.”  With respect to competency, the Court found that the acts fall within the purview of the states pursuant to Entry I (“Public Order”) of List II of the Constitution’s Seventh Schedule and are not regulated as a subject of religion, which is under the residuary jurisdiction of the central legislature.

India is a secular nation and has no state religion. It was held in the cases of Kesavananda Bharati v. State of Kerala[24] and S. R. Bommai v. Union of India[25] that secularism is a basic feature of the Indian constitution. The judgement established that there is a separation between State and religion.

Over the years several human rights organizations and institutions have expressed concerns about the rights, implications of, and lack of equitable treatment under, these state anti-conversion laws.  According to the US Commission on International Religious Freedom (USCIRF), “these laws, based on concerns about unethical conversion tactics, generally require government officials to assess the legality of conversions out of Hinduism only, and provide for fines and imprisonment for anyone who uses force, fraud, or ‘inducement’ to convert another.”[26]

In the report released by the USCIRF it was stated that although India emphasizes “complete legal equality” and prohibits faith-based discrimination, “there are constitutional provisions, State and national laws that do not comply with international standards of freedom of religion or belief, including Article 18 of the UN Declaration of Human Rights and Article 18 of the International Covenant on Civil and Political Rights.”[27]  The report also stated that “the anti-conversion laws both by their design and implementation infringe upon the individual’s right to convert, favour Hinduism over minority religions, and represent a significant challenge to Indian secularism.” Another criticism raised was that, “these laws have resulted in inequitable practices against minorities.”

On the other hand, a Hindu advocacy group in the United States, the Hindu American Foundation, has claimed that, freedom of Religion laws were primarily formulated to prevent vulnerable populations or populations without power, such as children and those that are poor, uneducated, and illiterate from being preyed upon and falling victim to predatory efforts seeking religious conversion in exchange for or with the allurement of medical and humanitarian aid, education, or employment.[28] Proponents view the laws as a restriction on conversion, “so as to preserve peace and harmony in plural India.”[29]

The report published by the USCIRF also observed that the “reconversion” to Hinduism under the term Ghar Wapsi (returning home) has not been included in the purview of any anti-conversion law.  According to the report, “such exclusion of reconversion from the purview of the freedom of religion acts unavoidably suggests reconversion by use of force, fraud, or allurement is not punishable under the provisions of these acts.”[30] In December 2014, “Hindu nationalist groups announced plans to ‘reconvert’ thousands of Christian and Muslims families to Hinduism as part of a so-called Ghar Wapsi (returning home) program.”[31]

Despite criticism of India’s anti-conversion laws, some human rights bodies, including the USCIRF, have acknowledged that “these laws have resulted in few arrests and no convictions.”[32] The US State Department’s International Religious Freedom reports published in 2010 and 2011 have also noted few arrests and no convictions under various anti-conversion laws during the respective reporting periods.[33]

Nevertheless, according to the USCIRF, some observers note that “these laws create a hostile, and on occasion violent, environment for religious minority communities because they do not require any evidence to support accusations of wrongdoing.”[34]

More recent reports by USCIRF have highlighted certain incidents of arrests:

In 2017, religious minority leaders and adherents faced intimidation and arrest as a result of these laws. For example, a Catholic nun, along with four tribal women, was detained in June 2017 based on suspicion of induced conversion.[35]

In April 2017, three Christians were arrested in the Khandwa district based on allegations that they were converting people.

In July 2017, Christians protested in Ludhiana, Punjab, after Sultan Masih, the pastor of the Temple of God Church, was murdered in public based on suspicions of his engaging in the conversion of others.

The broad language used by these laws, creates uncertainty about which activities are prohibited and further concerns that government authorities may take advantage of the vague and uncertain terminology to discriminate against religious minorities. These statutes do not provide explanations as to how such a term should be interpreted. The ambiguity of the definitions leaves a high degree of discretion to government officials to determine what actions are prohibited and which individuals will be targeted. The failure of the anti-conversion legislations to maintain this distinction results in blanket prohibitions on conversion per se, which in turn severely and unjustifiably curtail the right to follow religion as per choice.

One of the major problems these provisions employ is that they systemically substantiate a pro-Hindu bias and “allow conversions to Hinduism while attempting to thwart conversion in the other direction.”[36] Specifically, Rajasthan and Chhattisgarh structure their anti-conversion laws to exclude “reconversion to the religion of one’s forefathers” from the definition of conversion.[37] The religion of one’s forefathers is Hinduism and thus reconversions to Hinduism are not subject to the provisions of anti-conversion laws in either of these states.[38] Furthermore, in the Arunachal Pradesh Freedom of Religion Act of 1978, “conversion” entails “renouncing one religious faith and adopting another religious faith” with “religious faith defined as any indigenous faith.”[39]

The principal provision of anti-conversion laws contains multiple ambiguous and problematic terms examples being- “force”, “allurement or inducement”, and “fraud.”[40] In these provisions, force is defined as, “including a show of force or threat of injury of any kind including threat of divine displeasure or social ex-communication.”[41] If an individual maintains that potential converts risk divine displeasure by joining another religion such as, Christianity, Islam, Sikhism, or Judaism the act of imparting conversion could in and of itself constitute an act of force.[42]  

In the Rajasthan, Madhya Pradesh, Chhattisgarh, and Gujarat Acts the term allurement is defined as follows, “the offer of any temptation in the form of: (1) any gift or gratification either in cash or in kind; (2) grant of any medical benefit, either monetary or otherwise.”[43] The Himachal Pradesh, Orissa, and Arunachal Pradesh Acts define inducement, a term used in place of allurement, as follows, “inducement shall include the offer of any gift or gratification, either in cash or in kind and shall also include the grant of any benefit, either pecuniary or otherwise.”[44] Since charitable acts are fundamental to many religions, these definitions of allurement and inducement may restrict the freedom of religious practice.[45] For example, religiously sponsored hospitals and schools may be construed as a form of “temptation” intended to generate conversions.[46]  In Yulitha Hyde v. State of Orissa, the high court ruled that the Orissa act was overly ambiguous in wording and wide in scope.[47] However, the Supreme Court of India in Stainnislaus v. State of Madhya Pradesh[48] overruled Yulitha Hyde and upheld the constitutionality of the Orissa act.[49]

In the majority of anti-conversion provisions fraud includes “misrepresentation or any other fraudulent contrivance.”[50] This ambiguity grants government officials a high degree of discretion, which can lead to a bias in implementation. The government has no right to intrude on religious expression and exploration in this regard.

Article 25 of the Indian Constitution protects the freedom of religion. However, Article 25 also places constitutional limitations on this right. Article 25 limits the freedom of religion in accordance with “public order, morality and health,” and only for those reasons can restrictions be placed on this freedom.[51] In SardarSyednaTaherSaiffudinSaheb v. State of Bombay (1962), the Supreme Court held that the freedom to religion was not an absolute right. Elaborating upon the distinction between holding religious beliefs and manifesting one’s beliefs to others the Court stated, “his religious beliefs are entirely his own and his freedom to hold those beliefs is absolute, he has not the absolute right to act in any way he pleased in exercise of his religious beliefs.”[52]

The biggest landmark case on the freedom of religion is Rev. Stainislaus v. State of Madhya Pradesh[53], a 1977 Supreme Court judgment, which upheld the constitutional validity of the Madhya Pradesh and Orissa anti-conversion laws. In preceding High Court judgments, the Orissa law was struck down and the Madhya Pradesh law was upheld. The Orissa law was struck down on the basis of a lack of legislative competence. Additionally the High Court of Orissa held the inducement provision was held of the act to be too vague.[54] The Madhya Pradesh law was upheld by the High Court of that state who construed the act to fall within the category of public order, an area of competence and legislative power for the state government.[55] The High Court of Madhya Pradesh also upheld the provision on allurement. The Supreme Court largely endorsed the ruling of the Madhya Pradesh High Court. The Court held that Article 25, “merely granted the right to transmit or spread one’s religion by an exposition of its tenets… allowing a person to purposely undertake the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion… would impinge on the freedom of conscience guaranteed to all the citizens.” Furthermore, the Supreme Court agreed with the Madhya Pradesh High Court when it held those state governments’ possess the legislative competency to restrict conversions. The Court stated that anti-conversion laws concerned public order and the prevention of public disorder that could result from forcible conversions. The Supreme Court construed the Madhya Pradesh and Orissa anti-conversion laws to be aimed at “avoiding disturbances to the public order by prohibiting conversion from one religion to another in a manner reprehensible to the conscience of the community.”

CONCLUSION

By analysing the existing anti conversion laws and on- going debates on the same, we can understand that both the supporters and opponents of the anti-conversion laws use the preservation of religious freedom as justification. When we look into the aspect of forced conversion, such laws can play an important role in prohibiting such conversions. At the same time, the uncertainty of the terms used in such laws can have a negative impact on the society as a whole. It can give more discretionary power to the officials which have the power to curb an individual’s right to choose a religion of his/her choice. This can also affect the secular system of our nation.


[1] Robert D Baird (ed.), Religion and Law in India: Adjusting to the Sacred as Secular in Religion and Law in Independent India. 7. (Manohar, 2005).

[2] Plea in SC seeks directions to Centre, States to stop forced conversions and black magic, https://www.thehindu.com/news/national/plea-in-sc-seeks-directions-to-centre-states-to-stop-forced conversions-and-black-magic/article34214509.ece, Updated: April 01, 2021 16:17 IS

[3] Meghan G. Fischer, “Anti-Conversion Laws and the International Response”, 6 The Penn State Journal of Law & International Affairs 1(2018).

[4] Orissa Freedom of Religion Act, No. 2 of 1968

[5] Orissa Freedom of Religion Act Sec 3

[6] Arunachal Pradesh Freedom of Religion Act, 1978

[7] T. B. Subba, Joseph Puthenpurakal, Shaji Joseph Puykunnel (eds.), Christianity and Change in Northeast India 234 (Concept Publishing Company, New Delhi 2016).

[8] Madhya Pradesh Dharm a Swatantrya Adhiniyam (Madhya Pradesh Freedom of Religion Act), 1968

[9] Madhya Pradesh Freedom of Religion Act S. 2(a).

[10] Gujarat Freedom of Religion Act, 2003

[11] Supra 9 Sec 3

[12] Supra 9 Sec 2(b)

[13] Supra 9 Sec 5

[14] Supra 9 Sec 5 (2)

[15] The text of the Himachal Pradesh Freedom of Religion Act, 2006

[16] Himachal Pradesh Freedom of Religion Bill S. 2

[17] Himachal Pradesh Freedom of Religion Bill S. 3.

[18] Himachal Pradesh Freedom of Religion Bill S. 2(d).

[19] Tamil Nadu Prohibition of Forcible Conversion of Religion Act, No. 56 of 2002

[20] Supra 18

[21] Apoorva Mandhani, “Uttarakhand HC Suggests Enactment of Freedom of Religion Act to Curb “Sham Conversions” for Marriage”, https://www.livelaw.in/uttarakhand-hc-suggests-enactment-freedom-religion-act-curb-sham-conversions-marriage-read-order/,.

[22] AIR 1977 SC 908.

[23] Supra 3

[24] AIR 1973 SC 1461

[25] 1994 AIR 1918

[26] USCIRF, “Annual Report 2016: India” 162 (2016)

[27] Karamat Cheema, USCIRF

[28] USCIRF Hearing – Hindu American Foundation, March 10, 2011

[29] Preethi Maria Correa, “Anti-Conversion Laws in India and Their Conflict with Freedom of Religion”, UNILU Centre for Comparative Constitutional Law and Religion, Working Paper 01/13, 2013.

[30]Karamat Cheema, USCIRF, supra note 6, at 2.

[31] USCIRF Annual Report 2016, Tier 2 Countries – India.

[32]USCIRF Annual Report 2014, Tier 2: India

[33]U.S. Department of State: Bureau of Democracy, Human Rights, And Labour, International Religious Freedom 2010: India

[34]Supra 30

 [35] USCIRF Annual Report 2018, Tier 2: India

[36] A.G. Noorani, “South Asia Human Rights Documentation Centre, Challenges to Civil Rights Guarantees in India”, Chapter 7 – “Acts of Bad Faith – Anti-Conversion Laws”, 2012, p. 207-238.

[37] Rajasthan Freedom of Religion Bill 2006, Section 2(c), Chhattisgarh Act, Amendment of Section 2.

[38] Supra 36

[39] Arunachal Pradesh Act, S. 2(b).

[40] Supra 36

[41] Orissa Act, Section 2(b); Madhya Pradesh Act, Section 2(c); Gujarat Act 2003, Section 2(d); Arunachal Pradesh Act, Section 2(d); Rajasthan Bill 2006, Section 2(d); and Himachal Pradesh Act, Section 2(b).

[42] Supra 36

[43] Rajasthan Bill 2006, Section 2(b); Madhya Pradesh Act, Section 2(a); Chhattisgarch Act, Section 2(a); Gujarat Act, Section 2(a).

[44] Himachal Pradesh Act, Section 2(d); Orissa Act, Section 2(d); and Arunachal Pradesh Act, Section 2(f).

[45] Supra 36

[46]

[47] AIR Ori 116.

[48] Supra 22

[49] (1977) (1) SCC 677.

[50] Rajasthan Bill 2006, Section 2(e); Gujarat Act, Section 2(d); Himachal Pradesh Act, Section 2(c); Orissa Act, Section 2(c);Madhya Pradesh Act, Section 2(d); Arunachal Pradesh Act, Section 2(e).

[51] The Constitution of India, Art 25 (2) (a) and (b)

[52]AIR SC 853.

[53] Supra 22

[54] Yulitha Hyde &Ors v. State of Orissa.

[55]Stainislaus v. State of Madhya Pradesh.

Author: Anagha Haridas, NUALS, Kochi.

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