Anti-conversion Laws versus Freedom of Conscience Deliberating upon the Juxtaposition

I. Introduction

Artificial Religious conversion can be defined as an act of converting own religion to adopt another. When the religious conversion takes place on inducement by other person rather than own will, then it is called proselytization. Oxford dictionary defines 'proselytizing' as the action of attempting to convert someone from one religion, belief or opinion to another.² India is home to diverse religions such as Hinduism, Islam, Sikhism, Christianity, Buddhism and Jainism. Islam and Christianity have proselytization as bedrock of their faith. Proselytization has its roots settled in India since Mughal invasions when invaders forcefully converted Hindus to Islam. During the British rule, low caste Hindus were induced to adopt Christianity as Christianity offered equality while Hinduism had the evil of casteism. Apparently, nowadays also we come across instances of religious conversions but conversions are not problematic rather forceful conversions are.

II. Law and Religion

The Constitution of India

Articles 25 to 28 deal with the freedom of religion. The freedom guaranteed by these articles is not absolute rather it is subject to public order, morality, health and other provisions of Part III. Article 25 provides, "all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion." This Article beefs up the secular dimension of the nation by conferring equal rights upon every person in regard to religious freedom. The word 'propagate' has been controversial since the drafting of the constitution. The constituent assembly debates do not provide us with an unambiguous answer to the question whether the word 'propagate' implies conversion of another to one's own religion or not. The dispute which arose that whether the word 'propagate' should be included explicitly in the constitution was resolved through voting. Though discussions were done but no clear answer was presented. The disceptation was worked out by the Honorable Supreme Court in Rev. Stainislaus v State of Madhya Pradesh³ where it held that right to propagate it does not connote right to convert another person to one's own religion.

Laws on conversion at -

International Level

Most of the laws, legislations, conventions, covenants, recommendations and resolutions on international level bestow freedom of religion in generality. Only some are specific as to religious conversions. Article 18 of Universal Declaration of Human Rights states that everyone has freedom to change his religion or belief. Similarly, Article 18 of International Covenant on Civil and Political Rights talks about freedom of religion. Clause (1) of the said article states that right to religion includes freedom to adopt a religion of own choice and clause (2) provides that the said freedom shall not be impaired by subjecting the person to coercion whereas clause (3) makes the said freedom qualified by subjecting it to restrictions imposed by law which are indispensable for securing public safety, order, health, morals, fundamental rights and freedom of others. On 10^th April 1979, Government of India accepted Universal Declaration of Human Rights and International Covenant on Civil and Political Rights with certain qualifications which did not extend to right to freedom of religion.

National Level

After independence, various anti-conversion bills were introduced in the Parliament but none passed. In the year 1954, Indian Conversion (Regulation and Registration) Bill was introduced which provided for licensing of missionaries and registration of conversion but it was not passed as it failed to gather majority in the House of People. In the year 1960, Backward Communities (Religious Protection) Bill was introduced to look into conversions of Hindus to non-Indian religions viz. Islam, Christianity, Judaism and Zoroastrianism (as were specified in the bill). Freedom of Religion Bill, 1979 was introduced to subdue inter-religious conversions. Both of the aforesaid bills were also not passed for want of parliamentary support. In 2015, BJP government advocated for nationwide anti-conversion law in order to criminalize religious conversions without the permission of government. However, the Ministry of Law and Justice proposed against the motion submitting that it is 'purely a state subject'.

State Level

Anti-conversion laws at the state level are enacted to prohibit involuntary conversions. The origin of anti-conversion laws at the state level can be traced in the introduction of such laws by princely states during the colonial period (1930s and 40s). The princely states enacted such laws to protect Hindus from getting converted to Christianity on inducement by missionaries. Raigarh State Conversion Act, 1936 ; Udaipur State Anti-conversion Act, 1946 ; Surguja State Apostasy Act, 1942 are some examples of anti-conversion laws enacted by princely states of Kota, Udaipur, Patna, Bikaner, Surguja, Raigarh, Jodhpur and Kalahandi. At present, eight states in India have anti-conversion laws in force, namely, Uttarakhand, Madhya Pradesh, Odisha, Gujarat, Himachal Pradesh, Jharkhand, Arunachal Pradesh and Chhattisgarh. Rajasthan has passed the bill for anti-conversion but it is yet to become an Act. Odisha was the first among the states to enact anti-conversion statute and was followed by Madhya Pradesh. The validity of the anti-conversion laws of both the states was challenged in Rev. Stainislaus v State of Madhya Pradesh⁴ where the supreme court upheld their validity.

The laws at the state level are analogous in nature. All the anti-conversion statutes enacted by the states impose penalties for involuntary conversions. Enhanced penalties are imposed when the convert is a minor, woman or a person belonging to scheduled caste or scheduled tribe. Either prior or subsequent notice of conversion has to be given to the Magistrate depending upon the state. Gujarat is the only state which mandates both prior and subsequent notice of conversion. The states of Odisha and Rajasthan made involuntary conversions a cognizable offence while Chhattisgarh makes it cognizable when prior permission of Magistrate is not sought for.

However, some statutes have peculiar provisions and proposed amendments. In 2006, and amendment was proposed to Madhya Pradesh Freedom of Religion Act, 1968 which mandated prior permission of District Magistrate before conversion but it was not assented to by the President as he felt that it violated freedom of religion by mandating prior permission. A similar amendment has been approved of by Madhya Pradesh's Legislative Assembly in the year 2013 but Governor's assent is pending.

The amendment bill Gujarat Freedom of Religion (Amendment) Act, 2006 provided that provisions of the Act will not apply to inter denomination conversion of the same religion. Also, it referred Jainism and Buddhism as the denominations of Hinduism which was objected to by both the aforesaid communities. The bill was passed by the legislature but was withdrawn when Governor returned it for consideration.

Section 4(1) Himachal Pradesh Freedom of Religion Act, 2006 provided that no notice was required if the person reverts back to his original religion but the entire Section 4 was the struck down by the Honorable High Court of Himachal Pradesh.

The Rajasthan Anti-conversion Bill, 2006 which is yet to be assented to by the Governor, defined "own religion" as "religion of one's forefathers" and "conversion" as "renouncing one's own religion and adopting another" which is undoubtedly a vague definition. Moreover, it provides that the offence is non-bailable.

The Uttarakhand anti-conversion law provides that the person who converts to his ancestral religion is exempted from the law. Also, it provides that the marriage which is done only for the purpose of conversion shall be declared void by the Family Court.

III. Conversions vis-à-vis Precedents

The validity of anti-conversion law was enacted by the states of Odisha and Madhya Pradesh was challenged in Rev. Stainislaus v State of Madhya Pradesh⁵. The Honorable Supreme Court upheld the validity of the mentioned statutes and clarified that the word 'propagate' used in clause (1) of Article 25 does not grant the right of proselytization. It held, "...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." As is evident, proselytisation is prohibited but voluntary conversions are allowed. In Shafin Jahan v Ashokan K.M.⁶, the apex court read the freedom to convert to faith of own choice under the Article 21 of the Constitution. It held, "Faith of a person is intrinsic to his/her meaningful existence. To have the freedom of faith is essential to his/her autonomy; and it strengthens the core norms of the Constitution. Choosing a faith is the substratum of individuality and sans it, the right of choice becomes a shadow."

Generally, individual conversions do not garner much attention and controversy. It is the mass conversions which serve as bone of contention. The first and the biggest mass conversion which independent India witnessed, took place in Maharashtra in the year 1956 when around half a million Dalits embraced Buddhism under the leadership of Dr. B.R. Ambedkar. Since then, there had been mass conversions from time to time in the country. Mass conversions have always been controversial but the recent 'ghar wapsi' (Homecoming) movement made it a debatable issue. This movement is carried on by some Hindu organisations whose purpose is to bring back people to Hinduism who or whose parents or ancestors have been converted to Islam or Christianity. The movement led to mass conversions across different parts of the country. However, Hindu organisations have not limited proselytization to Islam and Christianity rather they often threaten Dalits who embrace Buddhism to revert back to Hinduism. One such unfortunate incident happened in the year 2002 in Haryana where families of massacred Dalits had to reconvert to Hinduism after embracing Buddhism due to employment of coercion by such organizations. Such mass conversions and employment of coercion and other means frequently occur in the country. In Guntur Medical College v. Y. Mohan Rao⁷, the Supreme Court held that the person whose parents belonged to the scheduled caste before embracing Christianity, will, on reconversion to Hinduism, get benefit of reservation. K.P. Manu, Malabar Cements Ltd. v. Chairman, Scrutiny Committee⁸ was a step further as the limit set by the former judgement to one generation was removed and extended to many generations provided that the caste shall get verified. The judgement faced huge criticism as for getting the benefit of reservation, a person has to reconvert to Hinduism from Islam or Christianity whereas reservation was extended to Sikh-Dalits and Buddhist-Dalits by amendment of The Constitutional (Scheduled Caste) Order 1950.

Another concept, which garnered national attention lately is the concept of 'love jihad'. The widespread conversions which took place in Kerala and Karnataka in the year 2009 and subsequently across the country led to the origin of this concept. The landmark judgement was pronounced by the Supreme Court in Shafin Jahan v. Ashokan K.M.⁹ where it struck down order of Kerala High Court annulling the marriage of Hadiya and Shafin Jahan on alleged claims of love jihad and held, "The Constitution protects the ability of each individual to pursue a way of life or face to which she or he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity...society has no role to play in determining a choice of partners."

Conversions for wrongful gain have always been condemned and held void by the apex court. In Smt. Sarla Mudgalkar and Ors. v. Union of India¹⁰, it was held that conversion to Islam for the mere purpose of polygamy is not a valid conversion. Similarly, in Faheem Ahmed v. Malviya @ Luxmi¹¹, conversion to Islam was held invalid as the respondent converted to Islam only for getting library membership at Jama Masjid.

IV. Conclusions and Suggestions

After the entire deliberation, it can be concluded that there is dire need of prohibiting forceful or involuntary conversions taking place across the country. Even though the Supreme Court has clarified that proselytization is not a fundamental right and some states have enacted anti-conversion laws but still a uniform legislation for the entire country is needed to curb the evil. It is worthy of mention that present legislations at the state level are not adequate rather they are highly discriminatory, vague and arbitrary. Also, the violate freedom of conscience to great extent through unreasonable provisions. Moreover, contradictory pronouncements by the Honorable Supreme Court in cases such as K.P. Manu, Malabar Cements Ltd v. Chairman, Scrutiny Committee¹² (allowing conversion for gain) and Faheem Ahmed v. Malviya @ Luxmi¹³ (prohibiting conversion for gain) augment the existing ambiguity.

The Law Commission of India, in its 235^th report (Conversion/Reconversion to another Religion - mode of proof) stated that, "the reason for or propriety of conversion cannot be judged from the standards of rationality and reasonableness." The report emphasized that no particular formalities are necessary to render the conversion legitimate by citing Punjabrao v. Dr. D.P. Meshram and Ors.¹⁴, Perumal Nadar (dead) by Legal Representatives v. Ponnuswami Nadar¹⁵ and S. Anbalagan v. B. Devarajan and Ors¹⁶.

The commission reiterated throughout the report that, "declaration followed by confirmation should not by itself be treated as proof of conversion and secondly it would be highly inappropriate to prescribe by way of legislation the details of ceremonies and/or formalities to be gone through for the purpose of conversion or the manner in which by law the conversion has to be proved in a court of law...proper guidelines on the subject of religious conversions and re-conversions will help avoiding conflicts. The law should be such as to respect the conscience of the individual. When the change of religion is a conscious choice of an individual based on his belief in God, the law cannot insist on obtaining the prior permission from the District Magistrate to change his or her religion. It is only after the conversion that it would be appropriate to send the intimation to the concerned officer of the Government."

Therefore, in the light of remarkable observations made by the Law Commission, it is submitted that a central law shall be legislated for curbing forceful conversions. Regard must be had to the fact that individual's freedom of conscience shall be given absolute primacy. Also, reasonable procedures and guidelines shall be provided.

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