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State Anti-Conversion Laws in India

Author:

Ishita Singhaniya, Student, Parul institute of law, Parul university

(Image Source: bel-india.com)


Introduction

India is said to be a country of festivals and different cultures. India is a union of 28 states and 8 union territories. All the states and union territories have their own culture, tradition, custom, religion, and conscience. India is the origin country of religion Buddhism, Hinduism, Jainism, and Sikhism. The traditions, customs, and religion play a very important role in the life of Indian people, their belief and trust towards their God can never be changed and had always made them sensitive towards their religion and culture. Their love and faith towards god are infinitive and unconditional and this brings a duty within them to respect and protect the religion of their concern and the law of India gives them the full freedom of choosing the religion of their conscience.


India and secularism

India is a secular country. The preamble of the Indian constitution declares India as a secular state. It states that “we the people of India, having solemnly resolved to constitute India into a Sovereign, Socialist, Secular, Democratic, Republic and to secure to all its citizens; Justice, Liberty, Equality, and Fraternity”[1].


Earlier during the time of enforcement of the Indian constitution on 26th January 1950, the preamble of the Indian constitution was different and described India as a “sovereign democratic republic”. At the time of discussion of the preamble in the constitution assembly on 17th October 1949, many debates had been taken place regarding the inclusion of the word secular in the preamble of the constitution. “Professor K.T. Shah amended the inclusion of word secular, federal, socialist in clause 1 of the constitution of India”[2] but B.R. Ambedkar showed his disapproval by stating that all the fundamentals rights incorporated in the constitution of India though they are not an absolute right and is subject to certain restrictions all those rights are available not only to the citizen of the country but also to the foreigners residing on the territory of India, thereby establishing beyond doubt the secular character of the country India.


The word “Socialist, secular and federal” became part of the preamble of the Indian constitution after 42nd Amendment 1976, also known as mini-constitution. It was the time of national emergency under the congress government headed by Indira Gandhi when the 42nd amendment took place. It is considered to be one of the most controversial amendments in Indian history and was presented in the Lok Sacha on “28th of august, 1976 by HR Gokhale”. This amendment resulted in giving numerous powers to the parliament of India and restricting the powers of the supreme court along with the incorporation of the word socialist, secular, and federal in the preamble of the constitution.


The word secular is derived from late medieval Europe. This means that there is no religion in the government of the country. The main aim of the government is to serve the nation and not god and hence every religion is equal in the eyes of the government, thus there shall be no discrimination against any person because of their religion and conscience. In the case “Indra v Raj Narayan”[3] and “SR Bommai v Union of India”[4]the same was upheld by the honourable supreme court.


Freedom of religion – the fundamental right

Fundamental rights are the rights covered under part III of the Indian constitution which provides the citizen of the country certain rights against the state. Freedom of religion is one of the fundamental rights out of six fundamental rights in India. Article 25-28 (freedom of religion) of the Indian constitution deals with secular provisions of the country.


  • “Article 25- it is related to freedom of conscience and free profession, practice and propagation of religion.

  • Article 26 - it gives freedom to manage religious affairs.

  • Article 27 - it sets freedom as to payment of taxes for promotion of any particular religion.

  • Article 28 – it gives freedom as to attendance at religious instruction or religious worship in certain educational institutions”[5].

As discussed, earlier customs, traditions, culture, ethics, and morals play a very important role in the life of Indian people and have a different place in their hearts. India being a hub of cultures and traditions in every state, every community has its different way of showering respect and love towards god. For example, Hindu believes red is the color of sensuality and purity and therefore they use this color in their religious ceremonies so on the other hand Christians believes white is the color of purity, innocence, and Muslims considers green color as the symbol of nature and life and they use it in their religious ceremonies. Not only colors there are many other things like festivals of Diwali, Holi, Ganesh Chaturthi, etc. are celebrated by Hindus, Eid, Ramadan, etc. by Muslims, Good Friday, Christmas, etc. by Christians, Mahavir Jayanti, Paryushana, etc. by Jains, Baisakhi, Guru Nanak Jayanti, etc. by Sikh and many more all this festivals and customs are also celebrated in India with full enthusiasm, love, and joyfully.


looking over the importance and value of customs, traditions, religions, morals in the life of Indian people it had been considered advisable to give the citizen of the country freedom of religion and incorporating it has fundamental right where they get the full freedom of choosing the religion of their conscience, practice the traditions and customs of their faith and interest and manage their religious affairs. This will also help in bringing and maintaining unity in the country of diversified customs and traditions.


VII schedule of the Indian constitution and state with anti-conversion laws

The 7th schedule of the Indian constitution deals with three list – Union list, State list, and Concurrent list. It states the area in which union and state have the authority to make law. The concurrent list is the list in which both union and the state have the authority to make law and in case of any dispute between the union and the state, the order of the union will prevail over the state. In India under the 7th schedule state and union have the power to regulate matter and promulgate anti-conversion laws for the respective states. It places the provisions related to secularism under the concurrent list.


Anti-conversion laws are the freedom of religious acts related to “preventing any person from converting or attempting to convert, either directly or otherwise, any person through forcible or fraudulent means or by allurement or inducement”[6]. At present there are eight states with anti-conversion law in force, they are “Odisha, Madhya Pradesh, Arunachal Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, and Uttarakhand”.


  • Odisha – Odisha was probably the first state to come up with the anti-conversion law known as Odisha freedom of religion act, 1967. This act was declared ultra vires to the constitution by the Odisha high court however the decision was overturned by the supreme court in Rev. Stanislaus v state of MP.

  • Madhya Pradesh – Madhya Pradesh was the second state to come up with anti-conversion law also known as Madhya Pradesh's freedom of religion act, 1968. An amendment was made in this act in 2006 which requires a priest to give one month notice with the required details to the district manager, also the desired person has to state in front of district magistrate or the executive magistrate authorized by the district magistrate about his or her willingness to be converted into any other religion.

  • Arunachal Pradesh, Andhra Pradesh, and Tamil Nadu – anti-conversion laws were implemented in all this state, however, the laws of these three states were similar to the laws of Odisha and Madhya Pradesh. The anti-conversion law of Arunachal Pradesh is known as Arunachal Pradesh's freedom of religion act, 1978, and the anti-conversion law of the state Tamil Nadu was repealed in 2004 and of Andhra Pradesh still, it is not signed off by the governor.

  • Chattisgarh – earlier Chattisgarh was part of Madhya Pradesh and was separated from the lateral state on 1st November 2000, after the separation Chattisgarh retained the anti-conversion law pf Madhya Pradesh which is known as Chhattisgarh freedom of religion act, 1968.

  • Gujarat - Gujarat anti-conversion law is known as Gujarat freedom of religion act, 2003. Under this act, there is no requirement of prior notice to the district magistrate the concerned person is only required to the permission of the district magistrate regarding the conversion.

  • Himachal Pradesh – the anti-conversion law of this state is popularly known as Himachal Pradesh freedom of religion act, 2006 which came into force on February 18, 2007”[7].

  • Jharkhand – anti-conversion law of Jharkhand is known as Jharkhand freedom of religion act, 2017. This act prohibits forcible conversion, punishes for contravention of the provisions of section 3, makes permission mandatory prior conversion, and makes any offense under this act cognizable and non-bailable and gives power to the state government to make rules to carry out the provisions of this act.

  • Uttarakhand – Uttarakhand is the 8th state to come up with anti-conversion law popularly known as the freedom of religion act, 2018. As per this act “forced or fraudulent conversion done through force or allurement is a non-bailable offense punished with imprisonment of 5 years. According to this act if a person wants to change his/her religion for marriage in that case the concerned person has to give an affidavit to the district magistrate one month before the wedding stating the willingness to be converted into any other religion”[8].

All the freedom of religion acts stated above is nevertheless similar to each other with the main motive of preventing offenses related to forceful conversion. The act aims to state that every person has the full freedom of converting his or her religion in a good faith by giving proper information about the same to the specified legal authority so that they can also perform their part by making necessary changes in the legal document of the person concerned. There is no difficult or complex legal procedure in which the act demand to be followed for the conversion of once religion. In the case of “Kailash Sankar v Maya Devi”[9], the same was upheld by the supreme court.

Why there is a need for an anti-conversion law in India?

“Hinduism is the largest religion in India covering about 79.8% of the entire population earlier the ratio was even higher as per the census of 2001 the total population of Hindus in the country was 80.5% of Muslims 13.4%, Christians 2.3%, Sikhs 1.9%, Buddhists 0.8%, Jains 0.4%, and others were 0.6%”[10]. As per the census of 2011, there is an increase in the Muslim population to 14.23%, Sikhs 1.72%, Jains 0.37%.


There is a requirement of Anti-conversion laws in India because India is the country of diversified religion and offenses related to forcefully conversion of a person or voluntarily conversion for some wrongful gain, to another religion often comes in the news in this country of diversified religion. In one of the landmark cases of “president Kalyani and others v Union of India, a Hindu husband married under Hindu marriage act, 1955 converted his religion to Islam as he was interested in getting married to another girl and Islam permitted polygamy. In this case, the supreme court held that such marriages are void on the grounds of bigamy and also stated that conversion of oneself into other religions for wrongful gain is unlawful and not a valid conversion”[11].


Talking about recent cases as per the report of the Human rights group “in 2015 there were over 160 incidents of communal violence where Christians were targeted with the largest number of incidents coming from Madhya Pradesh followed by Tamil Nadu, Uttar Pradesh, and Chhattisgarh. The cases included physical assaults and threats and intimidation in some instance’s women were sexually assaulted and threatened. India registered a rise in communal violence incidents by 24% and deaths related to the same by 65% in the first five months of 2015”[12]. One of the major cases of communal violence had taken place “in Madhya Pradesh in 2017, where police arrested a Christian priest for forcibly converting poor Hindus. This complaint was registered by a member of Bajrang Dal who was also associated with prime minister’s ruling party”[13]. Another case of communal violence in Madhya Pradesh had taken place on May 22, 2017, where 8 Christians were accused of kidnapping 60 children for fraudulent religious conversion. Out of the 8 accused one was minor of age 15 who was charged under the juvenile justice act.


A communal violence case had taken place in “Haryana on 23rd may, 2020 where 12 Muslim families have been forcibly converted to Hinduism and are receiving threat from the people of the village that they would be driven out of their village. The advocate who is helping the family to file a legal petition stated that this act had taken place in the wake of Indian media outlet effort to portray Muslims as spreaders of COVID-19” [14].


There are many other cases where people had become the victim of communal violence some of the cases of brutal human behavior like assault, sexual harassment for religion conversion has been discussed above. All this shows the plight of Indian citizens for which there is a need for a nationwide anti-conversion law in India. The proposal of nationwide anti-conversion law was made by the Modi government during the 2019 parliament session but the minister of law and justice advised against the move, saying the constitution stipulates that laws on such matter rest with individual states.


Conclusion

Indian constitution gives freedom of practicing religion to its citizen which also includes the freedom of converting oneself to another religion of their faith unless and until such conversion is forceful, fraudulent or with the intention of having some wrongful gain, in case “Rev Stanislaus v state of Madhya Pradesh”[15] the same was upheld by the supreme court. Dr. B.R. Ambedkar who was the chairman of drafting committee and had played an important role in framing of the Indian constitution was a Dalit by cast. He always believed that religion play an essential role in India and considered cast system as a greater threat to freedom in Indian society than that of the British. He along with 365000 of his Dalit followers on 14th October, 1956 converted to Buddhism with the aim of gaining equality in the country and founding it the only way of getting freedom for the untouchables.


References

[1] Indian constitution bare act. Available at - https://www.iitk.ac.in/wc/data/coi-4March2016.pdf [2] The statesman, Ambedkar’s vision of a secular constitution, by Jayita Mukhopadhyay. Published on April 6, 2018 available at https://www.thestatesman.com/opinion/ambedkars-vision-secular-constitution-1502618002.html [3] 1975 AIR, SC 2299. [4] 1994 AIR, SC 1981. [5] Supra note – 1. [6] State anti-conversion law in India, June 2017. Report for congress LL File no. 2017-014600. Available at - https://www.loc.gov/law/help/reports/pdf/2017-014600.pdf [7] Ibid [8] The times of India, form on August 8, 2018. Available at - https://timesofindia.indiatimes.com/city/dehradun/ukhand-cabinet-strengthens-anti-conversion-law/articleshow/65328418.cms [9] AIR 1984 SC 600. [10] Office of the registrar general and census commissioner, India. Ministry of home affairs, government of India. Available at - https://www.censusindia.gov.in/census_and_you/religion.aspx [11] (1995) 3 SCC 635. [12] Lausanne movement, connecting influencers and ideas for global mission. The spread of anti-conversion law from India by Tehmina Arora. Available at - https://www.lausanne.org/content/lga/2016-05/anti-conversion-laws-india?gclid=Cj0KCQjwwr32BRD4ARIsAAJNf_2UcKpQhc1xD19ZLpV5MhEYPlhe_fe0Y7qiQksQ60Fh7snAeYwm9_AaAmH5EALw_wcB [13] First post, Dec 16, 2017. Available at https://www.firstpost.com/india/madhya-pradesh-police-arrests-christian-priest-questions-seminary-members-after-bajrang-dal-alleges-forced-conversions-4261545.html [14] Indian Muslim, may 23, 2020. Available at - http://muslimmirror.com/eng/12-muslim-families-forcibly-converted-to-hinduism-in-haryana/ [15] (1977) 1 SCC 677.

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