Balancing Faith And Freedom: Navigating India's Anti-Conversion Of Religion Laws

Vishal Garg Narwana, Advocate
Punjab and Haryana High Court, Chandigarh
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Date : 27/03/2024
Location : Kothi No. 2024, Sector 21-C, Chandigarh
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Balancing Faith And Freedom: Navigating India's Anti-Conversion Of Religion Laws

The Haryana Prevention of Unlawful Conversion of Religion Act, 2022

India's landscape of religious freedom and conversion has been marked by a series of legislative and judicial developments, reflecting the nation's tussle with complex issues of faith, identity and legal rights. The debate over religious conversion in India is not new. Historically, conversion has always been a contentious issue, reflecting broader sociopolitical dynamics. During the Colonial era, conversions, especially to Christianity, were often viewed through the prism of colonial dynamics, leading to tensions between different religious communities. Post-independence, the Indian Constitution established a Secular State, as enshrined in Article 25, guaranteeing the right to freedom of religion, including the right to profess, practice, and propagate any religion, within the bounds of morality, health and public order. However, this right has been subject to state regulation, particularly when it comes to conversion, leading to the enactment of anti-conversion laws in various states. Article 25 also empowers the state to legislate on any economic, financial, political, or other secular activities associated with religious practices, which can include regulations on religious conversions.

Globally, the regulation of religious conversion is a divisive issue, with approaches varying significantly across countries. In some nations, freedom of religion is considered as an absolute right with minimal restrictions on conversion. In others, particularly where a single religion is closely tied to national identity or state apparatus, conversions might be heavily regulated or even prohibited. International human rights organizations often critique anti-conversion laws, arguing that they can infringe on individual rights and freedom of belief.

The Supreme Court of India has periodically addressed issues relating to religious conversion. In notable judgments, the Court has upheld the fundamental right to freedom of religion while also recognizing the state's role in regulating conversions to prevent coercion, fraud, or undue influence. The apex court's judgments often stress the need to balance individual rights with morality, health and public order, reflecting the complex interplay between religious freedom and societal interests.

In 2018, the Hon'ble Supreme Court emphasized the right of an adult individual to choose their religion and partner, reinforcing the principle that personal autonomy is central to the secular and democratic ethos of the Constitution. The Hon'ble Supreme Court laid the groundwork for protecting personal decisions, including those related to religious faith, from undue state and societal interference. The Hon'ble Supreme Court has asked the schools to serve religious education, touching upon the broader themes of secularism and the state's role in regulating religious practices.

In 1977, the Hon'ble Supreme Court upheld the constitutionality of anti-conversion laws in India stating that the right to propagate one's religion does not include the right to convert someone else.

In 1995, the Hon'ble Supreme Court held that if the husband already married under Hindu law, by embracing Islam, solemnising second marriage under Muslim law. This would not result in dissolution of the first marriage under Hindu law. Unless and until the first marriage is dissolved by a decree under Hindu Marriage Act, the second marriage under subsistence of the first marriage would be in violation of the Hindu Marriage Act which strictly professes monogamy. Such second marriage will amount to bigamy punishable under section 494 IPC.

Several Indian states have enacted laws aimed at regulating or restricting religious conversions that are perceived to be induced by fraud, force or allurement, or through coercion. States such as Odisha, Madhya Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Uttar Pradesh, and most recently Haryana, have passed such laws.

India's anti-conversion laws typically share certain common features, such as the requirement for individuals seeking to convert to another religion to give prior notice to, or seek permission from state authorities. These laws often include provisions for punishments, ranging from fines to imprisonment, for those found to be involved in conversions through force, fraud, coercion, or allurement.

Proponents of anti-conversion laws argue that such laws are necessary to protect vulnerable individuals from being unduly influenced or coerced into changing their faith. Critics, however, argue that these laws can be used to persecute minorities and stifle individual freedom of belief.

The Haryana Prevention of Unlawful Conversion of Religion Act, 2022, is one of the recent legislation that represents a significant development in India's ongoing discourse on religious conversion and freedom. This Act provides prevention of unlawful conversion from one religion to another by misrepresentation, use of force, threat, undue influence, coercion, allurement or by any fraudulent means or by marriage or for marriage and for matters connected therewith and incidental thereto. The Act stipulates that no person shall convert any other person from one religion to another by misrepresentation, use of force, threat, undue influence, coercion, allurement or by fraudulent means including use of digital mode, i.e. social media etc. No person shall convert any other person from one religion to another by marriage or for marriage. Even the attempt to convert, abet to convert or conspire to convert the religion is an offence. No person shall conceal his/her religion for the purpose of marriage. The conversion can only be done with the permission of the District Magistrate, by adopting the procedure laid down in the Act.

Any person who wants to convert his religion shall move to the District Magistrate testifying his intention to convert his religion out of his own free will and without any misrepresentation, use of force, threat, undue influence, coercion, allurement. The District Magistrate will give notice to the religious priest i.e., Pujari, Pandit, Qazi, Mullah, Maulvi, Father, Pastor or Nun, who intends to organise conversion of religion. The District Magistrate shall also issue public notice regarding the conversion of the religion, at the conspicuous place or on the notice board of his office. If anybody has any objection regarding such conversion then that person can file objections before the District Magistrate within 30 days from the date of Notice. The District Magistrate shall give his decision of allowing or declining the application after conducting the inquiry and verification of the same, within 3 months of the issuance of public notice which is extendable upto 6 months. The aggrieved party may file the appeal before the Divisional Commissioner within a period of 30 days from the passing of such order.

The person, who is found to be in contravention of the provisions of this Act, shall be punished with an imprisonment for a period of One year which may extend to 10 years along with the fine not less than one lac rupees which can extend to Rs. 4 lacs. No court shall take cognizance of the offence punishable under this act except upon a police report or upon a complaint made by the aggrieved person or by an officer authorised by the government or with the permission of the court by any other person who is related by blood, marriage, adoption, guardianship or custodianship. Every offence committed under this Act shall be cognizable, non-bailable and triable by Court of Session. The burden of proof shall lie on the accused in case of violation of any of the provision of this Act. Even the institution or organisation violative of the provision of this Act shall be liable for the punishment.

Any child born in the marriage solemnized in contravention of this Act shall be deemed to be a legitimate child and the succession of the property to such child shall be governed according to the law governing inheritance. The wife and the minor child born out of such marriage are entitled for maintenance. Any marriage solemnized by concealing the religion with the intention to marry can be declared null and void by filing the divorce petition before the family court or before the court having the jurisdiction within the local limits wherein the marriage was solemnized, or the respondent resides or either party to the marriage last resided together.

The Act provides protection to the individuals from coercion and deceit in matters of faith, while critics raise concerns about the impact on religious freedom and the potential for misuse against minority communities.

The Act's alignment with Article 25 illustrates the nuanced balance between individual religious freedoms and the state's role in regulating practices to ensure public order and welfare.

When compared to International norms and practices, India's approach to regulating religious conversion is not unique, but it does highlight the country's specific religious, cultural, and historical contexts. Countries with strong secular traditions and legal frameworks, such as the United States and much of Western Europe, tend to emphasize the protection of individual rights to freedom of belief and religion, including the right to convert. In contrast, countries with state religions or those, where religion plays a central role in national identity may impose more stringent restrictions.

Article 18 of the International Covenant on Civil and Political Rights (later referred to as `ICCPR'), is a key International legal instrument that protects the right to freedom of thought, conscience, and religion. It specifically allows for the freedom to have or to adopt a religion or belief of one's choice and the freedom, either individually or in community with others, in public or private, to manifest one's religion or belief in worship, observance, practice, and teaching. The Human Rights Committee, which interprets the ICCPR, has emphasized that this includes the right to convert to another religion or belief and that any coercion impairing the freedom to have or adopt a religion or belief of one's choice violates Article 18. The Human Rights Committee's interpretation of Article 18 of the ICCPR has crucial implications for anti-conversion laws globally, including in India. It underscores that any restrictions on the freedom to convert must be closely scrutinized and justified under strict criteria to ensure, they do not infringe on the essence of the right itself. The Committee has been clear that freedom of religion or belief should not be impeded by coercive practices but also that individual autonomy in matters of religion and belief is protected.

Article 11 of the Universal Declaration of Human Rights (later referred to as `UDHR'), states that while more often person charged with penal offence must be dealt with the presumption of innocence and shall be guaranteed the right to a fair trial, is part of a broader document that has laid the foundation for modern human rights law. The UDHR as a whole emphasizes the inherent dignity and the equal and inalienable rights of all members of the human family, which includes the freedom of thought, conscience, and religion. It asserts in Article 18 (the specific article dealing with freedom of religion) that everyone has the right to freedom of thought, conscience, and religion; this right includes freedom to change one's religion or belief.

In the context of India's anti-conversion laws, these International standards serve as a benchmark against which the laws can be evaluated. While the Indian government has the right to regulate in the interest of public order, health and morality, any measures taken must align with the obligation to respect, protect, and fulfil the right to freedom of religion, including the right to convert. This balance is delicate and requires a nuanced approach that respects both the individual's rights and the legitimate interests of the state.

The conversation around anti-conversion laws in India is complex and is deeply intersecting with the nation's commitment to International Human Rights norms. As India continues to navigate this challenging terrain, the principles enshrined in International instruments like the ICCPR and the UDHR offer crucial guidance. Ensuring that domestic laws align with these International commitments is vital for safeguarding the fundamental freedoms at the heart of a democratic society.

Judgments referred :-

1. Shafin Jahan v. Asokan K.M. & ors.: (2018) 16 SCC 368.

2. K.S. Puttaswamy & Anr. v. U.O.I. & ors.: (2017) 10 SCC 1.

3. Auna Roy and ors. v. U.O.I. and ors. : AIR 2002 SC 3176.

4. Rev Stanislaus v. State of M.P. : 1977 SCR (2) 611.

5. Sarla Mudgal v. U.O.I. and ors. : (1995) 3 SCC 635.

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