The story so far: The Supreme Court’s recent remarks on religious conversions cast a spotlight on the long-standing debate about what the fundamental right to “propagate” one’s religious faith entails. On December 5, a Bench led by Justice M.R. Shah said acts of charity or good work to help a community or the poor should not cloak an intention to religiously convert them as payback. The Bench has been hearing a plea from advocate Ashwini Kumar Upadhyay seeking a special law against forced conversions and alleging that “mass conversions” of socially and economically underprivileged people are being carried out.
The Bench in an earlier hearing in November had remarked that religious conversions by means of force, allurement or fraud may “ultimately affect the security of the nation and freedom of religion and conscience of citizens”, asking the Centre to clarify what it was doing to curb such conversions.
How did the Constituent Assembly and courts interpret the Freedom of Religion?
Article 25(1) of the Constitution says “all persons” are equally entitled to the freedom of conscience and the right to profess, practise and propagate religion freely.
The debate on religious freedom goes back to the Constituent Assembly when the framers of our constitution debated the inclusion of the “right to propagate” as a fundamental right. Some members wanted to replace the word “propagate” with “practise privately”, fearing that the right would create room for forceful conversions.
Lokanath Misra, a member from Odisha, cautioned the Assembly that “the cry of religion is a dangerous cry.”
“It denominates, it divides, and encamps people to warring ways.” He suggested that while everybody should have the right to profess and practise their religion as they saw best but they should not be “swell “their number to demand the spoils of political warfare.”
Pandit Lakshmi Kanta Maitra disagreed, saying that “propagation does not necessarily mean seeking converts by force of arms…”. He argued the fundamental right to propagate would probably work to remove the “misconceptions” in the minds of the people about other co-existing religions in this land of different faiths.
The right to propagate was ultimately kept in the Constitution but States and civil society have knocked on the doors of the judiciary time and again to interpret this freedom. The Supreme Court verdict in Rev. Stainislaus vs. State of Madhya Pradesh in the 1960s is frequently cited in matters involving religious freedom. Then Chief Justice of India A.N. Ray, heading a five-judge Bench,dissected Article 25 to hold that “the Article does not grant the right to convert other persons to one’s own religion but to transmit or spread one’s religion by an exposition of its tenets.”
“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,” the court had interpreted, upholding the validity of two regional anti-conversion laws of the 1960s — the Madhya Pradesh Dharma Swatantraya Adhiniyam (1968) and the Orissa Freedom of Religion Act (1967).
Before that, in 1950, the top court held in Arun Ghosh vs. State of West Bengal that attempts to raise communal passions through forcible conversions would be considered a breach of public order, affecting the community at large. It held that it was within the power of States under Entry 1 of the State List of the Seventh Schedule of the Constitution to enact local Freedom of Religion laws.
However, some verdicts have also interpreted Article 25 differently. For instance, when Mr. Upadhyay, the petitioner in the current plea had approached the top court last year with a similar plea alleging “mass” conversions across the country “by hook or by crook”, a Bench led by Justice Rohinton F. Nariman had said people were free to choose their own religion.
“Why should a person above 18 years not choose his religion? What kind of a writ petition is this? We will impose heavy costs on you…”, Justice Nariman had rebuked Mr. Upadhyay.
Justice Nariman had reminded the petitioner of the fundamental right to freely profess, practise, and propagate religion, subject to public order, morality and health. “Why do you think there is the word ‘propagate’?”
The Court had said that every person was the final judge of their own choice of religion, and invoked the Puttaswamy judgement (2018) to hold that religious faith was a part of the fundamental right to privacy.
Do States already have special laws on conversions?
Before independence, princely States had Acts such as the Raigarh State Conversion Act of 1936, the Patna Freedom of Religion Act of 1942, the Sarguja State Apostasy Act of 1945 and the Udaipur State Anti-Conversion Act of 1946, mainly against conversion to Christianity.
In post-independence India, Odisha became the first State to enact a law restricting religious conversions, which later became a model framework for other States. Odisha’s 1967 Act provides that no person shall directly or indirectly convertany person from one religious faith to another by force, inducement or any fraudulent means.
While Acts of the erstwhile Princely States were allowed to lapse with the adoption of the Constitution, States with sizeable tribal populations like Odisha and Madhya Pradesh remained suspicious of the activities of Christian missionaries.
Madhya Pradesh set up a committee to look into the activities of missionaries and later brought in the Madhya Pradesh Dharma Swatantraya Adhiniyam (1968). This Act added a provision distinct from the Odisha law, requiringwhoever converted any person, either as a religious priest or by taking part in a conversion-related ceremony to intimate the District Magistrate that such a conversion had taken place. Failure to do so would attract punishment and fines.
Subsequent Acts in other States over the past two decades see identical provisions. These laws also provide for greater punishment for forceful conversion of persons from Scheduled Castes or Scheduled Tribe communities, minors and women. A recent paper in the Economic and Political Weekly highlighted how administrations often said that such provisions were in the best interest of these groups in a sense painting them as “naive” and prone to be misled.
More than ten Indian States have passed laws prohibiting certain means of religious conversions —Arunachal Pradesh (1978), Gujarat (2003), Chhattisgarh (2000 and 2006), Rajasthan (2006 and 2008), Himachal Pradesh (2006 and 2019), and Tamil Nadu (a law was enacted in 2002, but repealed in 2004), Jharkhand (2017), Uttarakhand (2018), Uttar Pradesh (2021), and Haryana (2022). The Karnataka Assembly also passed an anti-conversion Bill amid stiff opposition. Under these laws, penalties for violations range from one to ten years of imprisonment and fines up to ₹50,000.
Since 2017, multiple BJP-ruled States enacted or revised their anti-conversion laws, restricting religious conversions on the additional ground of marriage, supposedly to curb what has been described as “love jihad”.
For instance, the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021, which replaced an ordinance passed in 2020, says that a marriage would be declared “null and void” if the conversion is solely for that purpose, and those wishing to change their religion after marriage need to apply to the District Magistrate.
The Act states that no person shall directly or indirectly convert from one religion to another by misrepresentation, force, undue influence, coercion, allurement or by other fraudulent means or by marriage. People are also not permitted to abet, convince or conspire such conversion. The Act provides for imprisonment up to 10 years and a maximum fine of ₹50,000 for violators.
Madhya Pradesh passed a new law in 2021— the Madhya Pradesh Freedom of Religion Act (MPFRA), which the State’s Home Minister Narottam Mishra described as having the strictest provisions compared to other laws.
While other States prescribe that an individual must inform a district magistrate 30 days prior to an intended conversion, the MPFRA increases this to 60 days, and makes it mandatory for both the individual and the priest facilitating the conversion. The conversion laws of various states require the initiation of an inquiry after this pre-declaration, where the police have to establish the real intent of conversion.
Have these laws been challenged?
The Himachal Pradesh High Court in 2012 struck down certain provisions of the State’s 2006 law restricting conversions, holding them “unconstitutional”. The Court said that the individual converting their faith also enjoyed their right to privacy and the provision to give a month’s prior notice to the district magistrate violated this right.
In 2021, the Gujarat High Court stayed some provisions of the Gujarat Freedom Of Religion Act, 2003, which the State amended in 2021 to add the grounds of marriage to prohibit conversions. The Court stayed Section 5 and other provisions, upholding “the right to choice of an individual”. Section 5 required a person taking part, “directly or indirectly”, in a “ceremony” involving religious conversion to apply for permission to the District Magistrate concerned. The Court also said that prima facie, the Act gave the common man the impression that an inter-faith marriage followed by conversion would amount to an offence. The Gujarat government appealed this decision in the Supreme Court. An apex court Bench led by Justice S. Abdul Nazeer issued notice on February 14, 2022, but the case has not been taken up since.
This year, the Madhya Pradesh High Court also held certain provisions of the MPFRA unconstitutional. In November last year, the Allahabad High Court allowed several interfaith couples to register their marriages despite not having sought the DM’s approval.
What is the Centre’s stand?
In an affidavit filed in the Supreme Court last month, the Union Ministry of Home Affairs said that the right to religion did not include the right to convert other people to a particular religion, especially through fraud, deception, coercion, allurement and other means. The MHA reiterated the interpretation of Article 25 given by the Supreme Court in the Stainislaus judgement of 1977. “Fraudulent or induced conversion impinged upon the right to freedom of conscience of an individual apart from hampering public order and, therefore, the state is well within its power to regulate/restrict it,” the affidavit reads.
It has, however, not clarified if it will come up with a special law on religious conversions, as sought in the petition. The top court has posted the case for another hearing on December 12.
- The Supreme Court’s recent remarks on religious conversions cast a spotlight on the long-standing debate about what the fundamental right to “propagate” one’s religious faith entails.
- Since 2017, multiple BJP-ruled States enacted or revised their anti-conversion laws, restricting religious conversions on the additional ground of marriage, supposedly to curb what has been described as “love jihad”.
- “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,” the court had interpreted, upholding the validity of two regional anti-conversion laws of the 1960s.