Synopsis: After UP, MP has also promulgated an ordinance related to anti-conversion laws. But UP’s anti-conversion law itself is fraught with many challenges.
Prohibition of Unlawful Conversion of Religious Ordinance, 2020:
- Law prohibits conversion from one religion to another by “misrepresentation, force, fraud, undue influence, coercion, allurement or marriage”.
- Marriage will be declared “shunya” (null and void) if the “sole intention” was to “change a girl’s religion”
- The persons forced the girl to change religious conversion may face jail term of up to 10 years if the girl is minor, a woman from the Scheduled Caste or Scheduled Tribe, if the person involved religious conversion on mass scale. For the rest of the cases, the jail term ranges from 1 to 5 years.
- The law also provides for the way to conversion. The person willing to convert to other religion would have to give it in writing to the District Magistrate at least two months in advance.
- The burden to proof would be on the person who caused the conversion or the person who facilitated it. If any violation is found under this provision, then she/he will face a jail term from 6 months to 3 year
- If any person reconverts to his immediate previous religion, then it shall not be deemed to be a violation of the ordinance.
Rationale behind the enactment of anti-conversion laws:
- Firstly, the threats of forceful conversion: Force not solely embody physical force to convert a person belongs to one faith to a different one however additionally it includes mental force like the “threat of divine displeasure”. For example, assume if a missionary informs a person that only Christians are allowed entry into heaven – a core part of the faith – that could also be construed as “force”.
- The Orissa High Court in Yulitha Hyde v. the State of Orissacase upheld this interpretation of “force” (Physical and mental).
- Secondly, the problem of Inducement or allurement: Odisha’s anti-conversion law mentions allurement or inducement as an offering of any gift or gratification, either in cash or in-kind, and also includes a grant of any benefit, which is pecuniary or otherwise. In Rev. Stanislaus vs State of Madhya Pradesh (1977) case the court upheld this definition.
- Thirdly, Religious conversion is not a Fundamental Right: Supreme Court in Rev. Stanislaus vs State of Madhya Pradesh (1977) case held that the conversion isn’t a fundamental Right and so could be regulated by the state. Both Odisha and Madhya Pradesh laws were upheld. This act as the legal basis for other such laws created by other States.
- Fourthly, the aim of all anti-conversion laws enacted by various States are same, such as to constrain the ability of communities and individuals to convert from their own religion to another in the name of protecting those sectors of society—namely women, children, backward castes and untouchables etc.
|Court’s judgement in Rev Stanislaus case: |
· The freedom of religion enshrined in Article 25 is not guaranteed in respect of one religion only but covers all religions alike… What is freedom for one is freedom for the other in equal measure and there can, therefore, be no such thing as a fundamental right to convert any person to one’s own religion
Issues with anti-conversion laws
- The Ordinance route taken by the government for promulgating this law is controversial as the law is not containing any specific urgency for this route.
- For promulgating an ordinance, 3 conditions must be satisfied
- State Legislature should not be in session;
- circumstances should exist for promulgating an ordinance
- Circumstances must warrant immediate action.
- However, disclosing the circumstances and urgency for the same is not mandatory.
- For promulgating an ordinance, 3 conditions must be satisfied
- Police do not require a special law to prevent a fraudulent or coercive inter-faith marriage. It can do so under normal circumstances too as in the case of child marriages.
- Section 7 authorises the arrest of a person by a police office on receipt of the information that a religious conversion is taking place.
- Arrest doesn’t require a magistrate order or warrant.
- Information can be a false news as seen in some of the recent cases.
- In case, a person want to convert but not marry, she/he require to inform a DM 2 month in advance. Then DM requires the police to inquire the real purpose of conversion and file a report.
- It leaves the scope of heavy pressure on the person from all around i.e. police and right groups.
- Section 12 of the article puts the burden of proof that it is not through coercion or fraud, on the person causing conversion through marriage or by any other way.
- This law through all the above methods is encroaching upon the right to privacy and violates the right to life, liberty and dignity of the consenting adults.
- These laws promotes patriarchal mind-set, where an adult women is unable to make her own choice in the matters of religion or marriage.
How to deal with the issues?
- Firstly, the need for uniformity, Article 18 of the Universal Declaration on Human Rights mentions everyone has the right to freedom of religion including changing their faith. That is included in the State laws but there is a wide variation in the state laws such as prison terms, burden of proof, the procedure to get converted, etc. Since the conversion falls within the “State list”. Central can frame a model law like Model law on contract farming etc.
- Secondly, State while enacting anti-conversion laws should also respect their Freedom to get convert and should not put any vague or ambiguous provisions for the person who wanted to convert of his own will.
- Thirdly, awareness to the people: People also need to be educated about the provisions and ways of Forceful conversions, Inducement or allurement, etc.
- Fourthly, disclosing circumstances leading to adopting the ordinance route should be made mandatory at both state level and central level.
- Fifthly, according to the USCIRF (United States Commission on International Religious Freedom), some observers note that “anti-conversion laws create a hostile, and on occasion violent, environment for religious minority communities since they do not require any evidences to support such accusations of wrongdoing.
- So, the anti-conversion laws also need to include a provision to mention the valid steps for conversion by minority community institutions.
Conversion in India is legal but not the conversion made using force/allurement/inducement to convert people. Various Court judgments have made conversion laws a legal one but not the laws which have whimsical/fanciful/arbitrary laws by State. So, there is a clear limit for the State to intervene in the religious conversion, this can be further demarcated by small but significant steps such as model law, enhancing awareness, etc.