Secularism is the foundation of the Indian Constitution. Though anti-conversion laws are not new and have become more politicized and publicly reported as a result of a string of new state legislation, they were very much in place even before Independence. Anti-conversion laws are laws enacted primarily by states to outlaw religious jihad and conversion by force, allurement, gratuity, or any other technique by which one man abandons his religion and converts to another.
Anti-conversion legislation in many states have been reviewed for their constitutional implications, and notable cases where the constitutional legitimacy of some of these laws has been questioned has been discussed. Despite the criticism of India’s anti-conversion and anti-Jihad legislation, numerous human rights organizations have acknowledged that these laws have resulted in several arrests but no convictions. The conversion is seen as a key tool for population growth. Anti-Jihad legislation is seen as a possible solution to the conversion problem. This article examines legislation that poses severe threats to religious freedom as protected by the Indian Constitution.
Introduction
India has long been noted for its many cultural, linguistic, and religious cultures. It is the birthplace of four major world religions: Hinduism, Buddhism, Jainism, and Sikhism. The Constitution of India was designated a secular state by the 42nd Amendment Act of 1976, which implies that everyone has the right to peacefully practice their faith. In India, religious conversion is protected by the Constitution as a right to freedom of religion.
However, the debate remains as to how far these religious conversions and Religious Jihad are protected under religious freedom. As a result, the major goal of this essay is to examine the breadth of religious freedom as a fundamental right and to answer as many questions as possible about religious conversions. Religion is essential for molding human behavior, and the state must strike a balance between individual and community interests. However, the globe is currently experiencing a religious conflict, as a result of which the government has enacted anti-conversion legislation.
Right to Freedom of Religion in India
Part III of the Indian Constitution provides all of the fundamental rights. The right to freedom of religion is protected by Articles 25-28, which is substantially based on the Irish Constitution. All persons are equally entitled to freedom of conscience and the right freely to profess, practice, and propagate religion, subject to public order, morality, and health, and to the other provisions of this chapter, says Article 25.
Thus, it is clear from Article 25 that this right does not apply just to Indian nationals, but also to all persons, including aliens, individuals exercising their rights individually or via institutions; and whether or not he belongs to a religious minority. Nothing in this article affects the operation of any current law or prevents the state from enacting new legislation. It refers to government intervention in any economic, financial, political, or other secular activity associated with religious practice, as well as any other action relating to social welfare and reform.
Actions against Forced Conversion and Jihad
At the national level, India lacks any legislation that addresses the issue of coercive conversions. The Indian Conversion (Regulation and Registration Bill) was attempted to be passed in 1954, but Parliament failed to do so due to strong resistance. Several attempts were made later at the state level. Acts were passed in 1968 in Orissa and Madhya Pradesh to outlaw forcible conversions by force or persuasion. Forced conversion in Orissa is punishable by up to two years in prison and a fine of Rs. 10,000 under the state’s anti-conversion statute. Other states, like Tamil Nadu and Gujarat, followed suit, passing laws making forced conversions a punishable offense under Sections 295A and 298 of the Indian Penal Code, 1860. A person who commits forcible conversion is punishable by up to three years in prison and a fine under these rules.
Converting Religion for Wrongful Gains
Persons convert their religion for a variety of reasons, including polygamy, reservation benefits, admission perks in some institutions that favor people of a particular religion only, divorce, and so forth. What does the law say about such people, exactly? In this sense, there have been some notable decisions. In the case of Smt Sarla Mudgal, President Kalyani, and Others vs. UOI and Others, a Hindu husband converted to Islam and married for the second time, as polygamy is legal in Islam. According to the Supreme Court, such marriages are void based on bigamy under Section 17 of the Hindu Marriage Act, 1955, and such persons are liable under Section 494 of the Indian Penal Code, 1860.
Furthermore, such conversions to Islam will not be deemed authentic if they are made for the aim of polygamy. As a result, if a conversion is made to gain an unfair advantage, it will not be regarded as legal. In Lily Thomas, Etc. vs. Union of India & Ors., the same reasoning was used. In Faheem Ahmed vs. Malviya @ Luxmi, the respondent converted to Islam to gain access to the Jama Masjid library. The conversion was declared illegal by the court since it was carried out solely to obtain a wrongful gain. As a result, any conversion made to gain an unfair advantage would be declared invalid.
Are Anti-Conversion Laws Violative of Fundamental Rights?
Anti-Conversion and Anti-Jihad laws were enacted to prevent religious conversions resulting from fraud, coercion, seduction, or allurement. However, the issue stems from the unclear definitions of concepts like fraud, coercion, and inducement. Although secular forces believe such laws are unconstitutional and violate human rights, the judiciary has already found them to be constitutional in several situations, as indicated above.
In light of the recent issue surrounding the Uttar Pradesh government’s anti-conversion act, India Today examines the country’s current regulations against forced conversions. The demand for an anti-conversion law has been made at numerous levels, including political declarations in Parliament about enacting a national anti-conversion law.
Attempts to Enact a National Law against Jihad
Following India’s independence, the Indian Parliament introduced several anti-conversion measures, but none of them was passed. In 1954, the Indian Conversion (Regulation and Registration) Bill was introduced, to enforce “missionary licensure and conversion registration with government officials.” In the Lok Sabha, this bill did not receive a majority of votes.
In 1960, the Backward Communities (Religious Protection) Bill was introduced, to prevent Hindus from converting to ‘non-Indian religions,’ which, according to Bill’s definition, includes Islam, Christianity, Judaism, and Zoroastrianism.
In 1979, the Parliament passed the Freedom of Religion Bill. It aimed for official restrictions on interfaith conversion. Due to a lack of political support, these bills were also not passed by Parliament. Because law-and-order is a State concern under the Constitution, the Union law ministry stated in 2015 that a national law prohibiting coerced and fraudulent conversions could not be enacted. State governments, on the other hand, can implement such legislation.
Over to States
Over the years, several states enacted Freedom of Religion legislation to restrict religious conversions carried out by force, fraud, or inducements. The research organization, the PRS Legislative Research recently released a report comparing various existing anti-conversion laws in several states.
Freedom of Religion laws are currently in force in eight states — (i) Odisha (1967), (ii) Madhya Pradesh (1968), (iii) Arunachal Pradesh (1978), (iv) Chhattisgarh (2000 and 2006), (v) Gujarat (2003), (vi) Himachal Pradesh (2006 and 2019), (vii) Jharkhand (2017), and (viii) Uttarakhand (2018).
The laws passed in Himachal Pradesh (2019) and Uttarakhand also declare a marriage to be void if it was solemnized for the sole purpose of conversion, or conversion was done solely for marriage.
Further, the states of Tamil Nadu in 2002, and Rajasthan in 2006 and 2008, also passed similar legislation. However, the Tamil Nadu legislation was repealed in 2006 after protests by Christian minorities, while in Rajasthan, the bills did not receive the assent of the governor of the state and the President of India.
In November 2019, citing rising incidents of religious jihad, forced or fraudulent religious conversions, the Uttar Pradesh Law Commission recommended enacting a new law to regulate religious conversions. This led the state government to promulgate the recent Ordinance.
What’s in the Anti-Conversion Laws?
The PRS study uncovered some common elements among state laws. While all states prohibit conversions by force, fraud, or allurement, only Himachal Pradesh, Uttarakhand, and Uttar Pradesh have laws prohibiting conversion through marriage.
Conversion Notice: The law in Arunachal Pradesh is regarded as the laxest in terms of requiring notification of conversion. It just requires the priest who performed the conversion to notify the District Magistrate or other appropriate authorities following the conversion. It is not necessary for the individual who has been converted to make such a proclamation.
In all other states, the priest or religious convertor, as well as the converted person, must give advance notice. The state with the harshest laws in Uttar Pradesh requires a person who intends to convert to send a 60-day notice to the district authorities.
Conclusion
The current legislation against Jihad is a threat to India’s secular fabric as well as international perceptions of our society’s inherent values and legal system. These laws are generally inspired by religious beliefs, and they currently disproportionately affect religious minorities. Although their stated goal is to safeguard minorities, they harm our society. Certain parts of personal liberty are restricted, while others are fostered, as a result of these policies. The existence of such regulations raises serious doubts about our commitment to fundamental norms like secularism. In the way that it has been formed by many multicultural groups, Indian secularism is a unique idea in that it is constantly altering its focus to be very flexible and enduring. The cultural fragmentation caused by the presence and application of these regulations, on the other hand, is a persistent problem.
Editor’s Note
The article discusses in great detail the various anti-conversion laws and anti-jihad laws that exist in India and justifies them as instruments of positive social impetus but then proceeds to elaborate on various ways in which it is harmful to the secularism of India.