Indian Constitution and Other Laws on Religious Conversion
The issue of religious conversion has taken centrestage over the last two years in India, especially in the states of Uttar Pradesh, Madhya Pradesh and Gujarat.
- Laws and Religious Conversion in India
- Intention of Lawmakers and Framers of the Constitution of India
- Constitution of India on Religious Conversion
The state governments of Uttar Pradesh and Madhya Pradesh projected the issue of “Love Jihad” as being rampant and which needed an immediate solution to protect Hindu women. It’s common knowledge, however, that “love jihad” is a conspiracy of Hindu nationalist groups[i] who are hostile towards inter-religious marriages and relationships.
Until the writing of this paper, the two state governments had failed to produce evidence or data of the alleged forceful religious conversions.[ii] The Uttar Pradesh Prohibition of Unlawful Religious Conversion Ordinance 2020 and the Madhya Pradesh Freedom of Religion Ordinance 2020 were still enacted and enforced. And the two ordinances subsequently became laws passed by their respective State Legislative Assemblies.
The Gujarat Freedom of Religion (Amendment) Bill of 2021 was passed on June 14, 2021, making the punishment for unlawful religious conversion harsher and its regulations even stricter.
The question is whether these state laws, which currently exist in six other states, actually regulate religious conversion? And is there a national law that regulates religious conversion in India?
Laws and Religious Conversion in India
The object and reason in most of the Freedom of Religion Acts, or “anti-conversion” laws, state that these Acts are to maintain law and order and public peace, as there is a need to prohibit unlawful religious conversion which are not voluntary, i.e. religious conversion of a person which is done by means of force or fraudulent means or by allurement. The Acts also require that a person who wishes to convert and those performing the rituals, i.e. religious priests, provide notices regarding the conversion to their respective district magistrates or any other authorised official. Hence, the Freedom of Religion Acts regulate religious conversion to ensure that such conversions are done voluntarily.
However, these regulations have been severely criticised by human rights and minority rights activists in India and abroad, including the United States Commission on International Religious Freedom,[iii] as being violative of religious freedom.
The Uttar Pradesh law has been deemed unconstitutional by former Law Commission Chairman Justice A.P. Shah[iv] and former Supreme Court Judge Justice Madan Lokur.[v] The state laws of Uttar Pradesh, Uttarakhand, Madhya Pradesh and Jharkhand were being challenged before their respective High Courts and some petitions were pending before the Supreme Court of India at the time of the writing of this report. The petitions mainly challenge the laws as being contrary to the objects and reasons and have become tools for harassment against minorities. This has been evident in a large number of Christian pastors and individuals having been charged under the laws for allegedly converting others forcibly or by inducement.[vi] Many Muslims have also been targeted.[vii][viii]
What stands in the way of the petitions is the Supreme Court’s judgment in Rev. Stainislaus v. State of Madhya Pradesh,[ix] passed on January 17, 1977 by five judges, which upheld the constitutional validity of the Madhya Pradesh Dharma Swantantraya Adhiniyam of 1968 and the Orissa Freedom of Religion Act of 1968. However, the latest petitions filed in the various High Courts and the Supreme Court are also about how these laws affect privacy, which has been upheld by nine judges of the Supreme Court as a fundamental right in K.S. Puttaswamy v. Union of India.[x] Privacy is central and key to religious freedom.
To answer the second question, whether there is a law regulating religion and religious conversions at the national level in India, there is no statutory provision which otherwise regulates or provides guidelines on religious conversions independently. This is not to say that there has not been any intention. Lawmakers have made efforts to bring in an anti-conversion legislation through the following bills: the Indian Conversion (Regulation and Registration) Bill of 1954; the Backward Communities (Religious Protection) Bill of 1960 and the Freedom of Religion Bill of 1978. In 2015, the Union law minister stated that a national law against forced and fraudulent conversions was not possible because law and order is a state subject under the Constitution and that only state governments can enact such laws.[xi] Parliament, therefore, has not passed any central legislation to regulate conversion on religion.
The Law Commission of India, in its 235th Report on Conversion, Reconversion to Another Religion – Mode of Proof,[xii] pondered on how any person would be able to establish that they had converted themselves to another religion. Albeit the issue before the Commission was about proof of conversion and it needed to formulate a procedure, the Commission found it difficult and undesirable to do so. Here’s an excerpt:
“The change from one religion to another is primarily the consequence of one’s conviction that the religion in which he was born into has not measured up to his expectations – spiritual or rational. The conversion may also be the consequence of the belief that another religion to which he would like to embrace would better take care of his spiritual well-being or otherwise accomplish his legitimate aspirations. At times it may be hard to find any rational reason for conversion into another religion. The reason for or propriety of conversion cannot be judged from the standards of rationality or reasonableness.”
Referring to the above thoughts in his article on “Freedom of Religion and Right to Conversion” (2003), M.N. Rao, former Chief Justice of Himachal Pradesh High Court and Chairman of the National Commission for Backward Classes at the time of the publication of this report, made the following pertinent observations:
“Right to conversion connotes individual right of a person to quit one religion and embrace another voluntarily. This kind of change from one religion to another religion must necessarily be in consequence of one’s conviction that the religion in which he was born into has not measured up to his expectations, spiritual or rational. Sometimes it may also be the result of losing faith in one’s own religion because of the rigidity of its tenets and practices. Sometimes one may even lose total faith in the very concept of the existence of God and turn to Atheism. A change of religion, a consequence of any of the above reasons, falls within the ambit of the ‘Right to Conversion.’”
The process of religious conversion is complicated as it requires an individual’s eventual acceptance even if that individual had gained understanding by accident or under compulsion. A ritual is only symbolic and holds no importance unless it is followed by a genuine conviction in the individual. The submission of proof of belonging to or following a particular religion may be a necessity in matters of personal laws, such as for marriage or succession, or when someone changes her or his religion and seeks to avail of any benefits provided for that community. Only when the State remains secular and does not interfere in the citizens’ personal space will the individual also remain protected under law.
Justice Chandrachud highlights the notion of privacy as intrinsic to human dignity in K.S. Puttaswamy’s[xiii] judgment, i.e. the right to be left alone:
“Privacy postulates the reservation of a private space for the individual, described as the right to be let alone. The concept is founded on the autonomy of the individual. The ability of an individual to make choices lies at the core of the human personality. The notion of privacy enables the individual to assert and control the human element which is inseparable from the personality of the individual. The inviolable nature of the human personality is manifested in the ability to make decisions on matters intimate to human life. The autonomy of the individual is associated over matters which can be kept private. These are concerns over which there is a legitimate expectation of privacy. The body and the mind are inseparable elements of the human personality. The integrity of the body and the sanctity of the mind can exist on the foundation that each individual possesses an inalienable ability and right to preserve a private space in which the human personality can develop. Without the ability to make choices, the inviolability of the personality would be in doubt. Recognizing a zone of privacy is but an acknowledgment that each individual must be entitled to chart and pursue the course of development of personality. Hence privacy is a postulate of human dignity itself. Thoughts and behavioural patterns which are intimate to an individual are entitled to a zone of privacy where one is free of social expectations. In that zone of privacy, an individual is not judged by others. Privacy enables each individual to take crucial decisions which find expression in the human personality. It enables individuals to preserve their beliefs, thoughts, expressions, ideas, ideologies, preferences and choices against societal demands of homogeneity. Privacy is an intrinsic recognition of heterogeneity, of the right of the individual to be different and to stand against the tide of conformity in creating a zone of solitude. Privacy protects the individual from the searching glare of publicity in matters which are personal to his or her life. Privacy attaches to the person and not to the place where it is associated. Privacy constitutes the foundation of all liberty because it is in privacy that the individual can decide how liberty is best exercised. Individual dignity and privacy are inextricably linked in a pattern woven out of a thread of diversity into the fabric of a plural culture.”
Intention of Lawmakers and Framers of the Constitution of India
The need to have minimal interference in matters of faith has been recognised from the time of the debates that took place in the Constituent Assembly, which was founded in 1946, and it was re-emphasised in the eventual amendment of the Preamble in 1976, when the word “Secular” was inserted in it.
The intention of the framers of the Constitution to establish a secular state and a system of representation for all has been aptly recognised by the Supreme Court in its landmark judgment in the S.R. Bommai case.[xiv] The court ruled, was already embedded in the constitutional philosophy:
“28. … During the debates Prime Minister Jawaharlal Nehru declared that secularism was an ideal to be achieved and that establishment of a Secular State was an act of faith, an act of faith above all for the majority community because they will have to show that they can behave towards others in a onerous, fair and just way. When objection was sought to be voiced from certain quarters, Pandit Laxmikantha Mitra explained:
“‘By Secular State, as I understand, it is meant that the State is not going to make any discrimination whatsoever on the ground of religion or community against any person professing any particular form of religious faith. This means in essence that no particular religion in the State will receive any State patronage whatsoever. The State is not going to establish, patronize or endow any particular religion to the exclusion of or in preference to others and that no citizen in the State will have any preferential treatment or will be discriminated against simply on tile ground that he professed a particular form of religion. In other words, in the affairs of the State the preferring of any particular religion will not be taken into consideration at all. This I consider to be the essence of a Secular State. At the same time we must be very careful to see that in this land of ours we do not deny to anybody the right not only to profess or practice but also propagate any particular religion.’
“This in brief was the notion of secularism and democracy during the pre-independence era and immediately before we gave unto ourselves the Constitution. We may now very briefly notice the provisions in the Constitution.
“29. Notwithstanding the fact that the words ‘Socialist’ and ‘Secular’ were added in the Preamble of the Constitution in 1976 by the 42nd Amendment, the concept of Secularism was very much embedded in our constitutional philosophy. The term ‘Secular’ has advisedly not been defined presumably because it is a very elastic term not capable of a precise definition and perhaps best left undefined. By this amendment what was implicit was made explicit. The Preamble itself spoke of liberty of thought, expression, belief, faith and worship. While granting this liberty the Preamble promised equality of status and opportunity. It also spoke of promoting fraternity, thereby assuring the dignity of the individual and the unity and integrity of the nation. While granting to its citizens liberty of belief, faith and worship, the Constitution abhorred discrimination on grounds of religion, etc., but permitted special treatment for Scheduled Castes and Tribes, vide Articles 15 and 16. Article 25 next provided, subject to public order, morality and health, that all persons shall be entitled to freedom of conscience and the right to profess, practice and propagate religion...”
All laws in India draw their strength from the Constitution and must pass the test of constitutionality laid out in its articles. The Constitution was created by a constituent assembly and was adopted by its people with a declaration in its preamble. Hence, laws and regulations need to withstand the test of whether they encroach on the fundamental rights enshrined in Part III of the Constitution. For religious freedom, this test comes under Articles 25 to 28.
Constitution of India on Religious Conversion
As already noted, freedom of religion is a fundamental right in India, which is covered under Article 25 of the Constitution. It, however, remains silent on religious conversion. After a Constituent Assembly debate on December 9, 1946,[xv] Clause 17 was introduced and it read: “Conversion from one religion to another brought about by coercion or undue influence shall not be recognised by law.” So this was excluded as a fundamental right and left to the legislature. Eventually, Article 25 was titled, “Freedom of conscience and free profession, practice and propagation of religion” and it guarantees freedom of religion to all persons in India, subject to public order, morality and health.
The State can regulate activities which are of economic, commercial or political character even if they are associated with religious practice. The Supreme Court, in its judgment in The Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar,[xvi] noted:
“The guarantee under our Constitution not only protects the freedom of religious opinion but it protects also acts done in pursuance of a religion and this is made clear by the use of the expression " practice of religion " in article 25. Latham C.J. of the High Court of Australia while dealing with the provision of section 116 of the Australian Constitution which inter alia forbids the Commonwealth to prohibit the "free exercise of any religion" made the following weighty observations(1) : "It is sometimes suggested in discussions on the subject of freedom of religion that, though the civil Government should not interfere with religious opinion, it nevertheless may deal as it pleases with any acts which are done in pursuance of religious belief without infringing the principle of freedom of religion. It appears to me to be difficult to maintain this distinction as relevant to the interpretation of section 116. The section refers in express terms to the exercise of religion, and therefore it is intended to protect from the operation of any Commonwealth laws acts which are done in the exercise of religion. Thus the section goes far beyond protecting liberty of opinion. It protects also acts. done in pursuance of religious belief as part of religion." These observations apply fully to the protection of religion as guaranteed by the Indian Constitution. Restrictions by the State upon free exercise of religion are permitted both under articles 25 and 26 on grounds of public order,. morality and health. Clause (2)(a) of article 25 reserves the right of the State to regulate or restrict any economic, financial, political and other secular activities which may be associated with religious practice and there is a further right given to the State by sub-clause (b) under which the State can legislate for social welfare and reform even though by so doing it might interfere with religious practices.
… What article 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality, but regulation of activities which are economic, commercial or political in their character though they are associated with religious practices.”
The right to religious conversion is inherent to the freedom of conscience in Article 25. India, which took an active part in the drafting of the Universal Declaration of Human Rights (UDHR) and signed, must recognise that the freedom of thought, conscience and religion includes the right to change religion or beliefs, just as Article 18 of the UDHR mentions explicitly. An article on freedom of religion published by the UN Human Rights Committee, titled CCPR General Comment No.22 Article 18 (Freedom of Thought, Conscience or Religion),[xvii] recognised the profoundness contained within Article 18 of the UDHR and the unconditional protection of every individual’s right to hold opinions without interference under Article 19(1) of the International Covenant on Civil and Political Rights. The article reads:
“Article 18 distinguishes the freedom of thought, conscience, religion or belief from the freedom to manifest religion or belief. It does not permit any limitations whatsoever on the freedom of thought and conscience or on the freedom to have or adopt a religion or belief of one’s choice. These freedoms are protected unconditionally, as is the right of everyone to hold opinions without interference in article 19.1. In accordance with articles 18.2 and 17, no one can be compelled to reveal his thoughts or adherence to a religion or belief.”
[ix] 1977 Volume 1 Supreme Court Cases 677
[x] 2017 Volume 10 Supreme Court Cases 1
[xiii] 2017 Volume 10 Supreme Court Cases 1
[xiv] 1994 Volume 3 Supreme Court Cases 1
[xvi] All India Reporter 1954 Supreme Court 282