In prevailing years, more and more states in India have passed laws to restrict religious conversion, specifically targeting conversions via “force” or “allurement.” Current laws stem back to innumerable colonial laws (containing anti-conversion, apostasy, and public-safety acts) in British India and several other princely states. Implementing such regulations appears to require judging the state of mind of the converts by scrutinizing their motives and volition or, in other words, distinguishing whether converts were “lured” or legitimate. In modern India, administration assessments of the legitimacy of conversions manage to count on two assumptions: first, that people who convert in denominations may not have voluntarily decided on conversion, and second, those unique communities are especially vulnerable to being lured into shifting their religion. These hypotheses, which extend throughout the anti-conversion laws as well as appropriate court decisions and government committee reports, reinforce social constructions of women and lower castes as inherently naïve and susceptible to manipulation. Like “protective” laws in many other contexts, such laws restrict freedom in highly personal and private, individual preferences and thus must be carefully scrutinized.
The Report of the Christian Missionary Activities Enquiry Committee of 1956 sheds light on more concerns about conversion, which comprised public order, social cohesion, and national security in the contemporary nation. Committee chairman Dr M.B. Niyogi submitted this report, primarily a scathing review of missionary activity, with a letter stating that the members of the
- The committee was guided solely by the necessity to maintain intact the solidarity and security of the country, to prevent disruption of society and culture, and to emphasize the essential secular character of the Constitution. If they have drawn attention to certain disruptive tendencies inherent in, or incidental to, the exercise of certain liberties in matters of religion, they have done so not intending to curtail individual rights and freedom, but to the exercise thereof in a manner consistent with public order, morality and health.
This report constituted recommendations to restrict conversions; in fact, the committee recommended restricting “any attempt or effort (whether successful or not), directly or indirectly, to penetrate the religious conscience of persons of another faith.” The report comprised papers of summarized testimony before the committee, including lists such as, “The following persons reported that they were converted by giving or getting loans for a plough.” Skepticism of conversions and beliefs about the gullibility of poor converts, voiced in this report, paved the path for legal restrictions.
On 9th April 2021, the Supreme Court bench held that persons above 18 years of age are free to choose religion as it rejected a plea seeking directions to the Centre and states to curb black magic and religious conversion. The bench said there is no rationale why a person above 18 years can’t be allowed to choose his religion. Court also told senior advocate Gopal Sankaranarayana, to reconsider appearing for petitioner advocate Ashwini Upadhyay. Upadhyay, a Delhi leader and an advocate then sought liberty to withdraw the petition and permission to make representation to the government and the law commission. The bench also refused to grant permission and dismissed the petition as withdrawn. Upadhyay had sought directions to the Centre and states to ban black magic, superstition and fraudulent and forcible religious conversions. His PIL wanted the top court to ask the government to appoint a committee to ascertain the feasibility of legislating anti-conversion law to check the misuse of religious conversion. Upadhyay in his PIL also pointed out the judgement that the Supreme Court had in the Sarla Mudgal Case (1995) instructed the Centre to convince the feasibility of enacting an anti-conversion law.
The Supreme Court in landmark judgements of Lily Thomas V. Union of India 2000 (6) SCC 224 and Sarla Mudgal v. Union of India 1995 (3) SCC 63, has substantiated that religious conversions performed without a bona fide belief and for the sole objective of deriving some legal benefit are illegal and do not hold grounds. These trials were primarily concerned with the religious conversions by Hindu men to Islam to conclude bigamous marriages. That people formulate tactical shifts in their personal beliefs to conform to their self-interest is not new. Such examples do, however, raise an interesting legal issue: When the freedom to profess and propagate religion is constitutionally mandated, how is India competent to give rise to laws that prevent religious conversion, whatever can be the incentive to do the same? Before this particular petition, Orissa was the prominent state to pass a law that prohibited religious conversion “by the use of force or inducement or by fraudulent means”– The Orissa Freedom of Religion Act, 1967. The act was enacted in 1967 which states that no person shall convert or attempt to convert either directly or otherwise any individual from one religious faith to another by the use of fraud, force, allurement or inducement and nor shall any person should be the victim of the abetment of any such conversion. The contravention of this law would amount to retribution with imprisonment of up to one year or a fine of up to Rs. 5,000 to Rs. 10,000 with two years of imprisonment in case of a minor belonging to SC/ST or is a woman. The Orissa High Court, however in the year 1967, abrogated the Act as unconstitutional on the basis that the state legislature did not have the right to legislate on courses of any religion.
Recently, a similar ordinance was brought down by the Uttar Pradesh High Court called Prohibition of Unlawful Conversion of Religion Ordinance, 2020, which was passed by the UP Government on 28 November 2020 which is a much-debated law in recent legal diaspora and is being treated as a law against Love Jihad. This Ordinance provides punishment up to 10 years for violation of its provisions along with other sanctions. It targeted religious conversion under two circumstances. The first being the situations of conversion through fraud, misrepresentation or coercion largely unproblematic. While the second circumstance is about the conversion ‘done for the sole purpose of marriage’. Section 6 of this Ordinance declares that the marriages done for the sole purpose of unlawful conversion or vice versa shall be declared void. This brimmed with controversy. Hence, the said petition and the state ordinances of anti-conversion entirely for marriage to evade the impact of the Special Marriage Act provides a discernible legal benefit which was arguably struck down by the declarations in Lily Thomas and Sarla Mudgal.
Moreover, the Supreme Court, in Stanislaus’ case has already held that the act of religious proselytization is not conserved by Article 25 of the Constitution. Also in the Arun Ghosh vs. State of West Bengal verdict of 1950, SC held that an attempt to raise communal passions through forcible conversions would be a violation of public order and impact on the community as a whole. Thus, it was held that the States were authorized under Entry 1 of List II of the Seventh Schedule of the Constitution to enact local Freedom of Religion laws to exercise their civil powers and restore public order in the similar context mentioned above in the Stanislaus’ case.
Thus, it’s difficult to assert that the UP legislation is unconstitutional for curtailing religious conversions performed purely for marriage. It is moreover affirmed by the continued and unchallenged validity of identical legislation in states such as Uttarakhand and Himachal Pradesh.
These laws interpreted force to include “threat of divine pleasure”. The complicated aspect in these acts (which Jennie Louise refers to as ‘evaluative conflict’ in her paper Ethical Theory and Moral Practice) was the probability that a right motive might direct an agent to execute a wrong act. Identical Acts and Ordinances aiming to resist this phenomenon(which is the right motive, with the wrong action) must argue that causal relationship implicates motives and acts having the same ethical status.
So if we examine the concept of religious liberty in the backdrop of conversion we find that the right to change faith is inherent in the right to freedom of conscience guaranteed under Article 25 of the Indian Constitution. The right to change religion encompasses within its fold the right to prefer a religion. Though there are few religions in which propagation as a means to convert others is central to a particular religion, that does not indicate that this right is absolute. Restrictions can still be laid down in governing such right of conversion as per the freedom of religion enshrined under Article 25(1), the weakest constitutional guarantee.
Navaneeth Joshi 