Even as an anti-conversion bill awaits approval from the Karnataka Legislative Council, legal challenges are already being prepared against it. If passed, Karnataka would become the tenth Indian state to have a law prohibiting religious conversions made on the basis of false statements, force, fraud, lure or marriage.
These laws, say critics, are used to target religious minorities and interfaith couples.
As of 2017, five states, all led by Bharatiya Janata Party governments, have either passed new anti-conversion laws or updated existing ones. The new versions of the laws put in place tougher penalties and new grounds to restrict conversions, such as conversion “by marriage” – where a person who adopts another religion to enter into a marriage would be deemed to have been forcibly converted.
Additionally, two other BJP-led states, Harayana and Assam, have announced plans to move similar laws.
Anti-conversion laws have been challenged in the courts since Odisha proposed the first such legislation in 1967. However, courts have a mixed record in upholding freedom of choice in matters of religion, ruling in favor of individual liberty in some cases but not in others. .
The precedent for such cases was set by the Supreme Court in 1977, when a five-judge judge upheld the constitutionality of India’s first two anti-conversion laws: the Orissa Freedom of Religion Act, 1967 and the MP for Madhya Pradesh, Dharma Swatantrya Adhiniyam, 1968.
But the verdict in this case, Stainislaus v Madhya Pradesh State, has been criticized by constitutional experts.
Abhinav Chandrachud, lawyer and scholar, wrote that in enforcing these laws, the Supreme Court “went too far”. He could have simply considered that the right to propagate a religion did not extend to forced conversions, he writes. However, the court ruled that this right did not even include voluntary conversions.
Sanjay Hegde, a senior lawyer, said that if a broader bench reconsidered Stainislaus, his logic would ignore the 2017 judgment in the Puttaswamy case recognizing the right to privacy as a fundamental right.
“We now have a nine-judge judgment in the Puttaswamy case which concerns privacy,” Hedge said. “I can’t think of anything more private than your relationship with God. In 2017, the Supreme Court recognized the right to privacy as a fundamental right in the Puttaswamy case.
Freedom of conscience
The laws of Odisha and Madhya Pradesh both prohibited conversions from one religion to another if carried out on the basis of force, fraud, or any inducement and seduction by means of a gift, a gratuity or material benefit.
The applicants argued that the restrictions on conversion violated their fundamental rights since Article 25, paragraph 1, of the Constitution grants the right to “freedom of conscience and the free profession, practice and propagation of religion”. “. The word “spread” should include the right to convert, they argued.
However, the court considered that article 25 does not give the right to convert but only “to transmit or to spread his religion by exposing his principles”.
This became the main case justifying the restrictions on conversion. After this judgment, several states adopted their own anti-conversion laws.
Removal of anti-conversion provisions
However, a High Court judgment is distinguished by the quashing of the provisions of an anti-conversion law. In 2012, the High Court of Himachal Pradesh
ruled that certain provisions of the 2006 Anti-State Conversion Law were unconstitutional.
The High Court said that while a person has the right to believe and the right to change their beliefs, they also have the right to keep their beliefs a secret. As a result, the court said that requiring a person to notify the district magistrate 30 days before converting to another religion would affect their right to privacy.
“If a person of their own volition changes their religion, there is no way to measure or fix the date on which they ceased to belong to religion A and converted to religion B”, a declared the court.
The law also prohibits an individual from giving 30 days’ notice if they convert to their “native religion”. The court ruled that this was irrational and contrary to the right to equality set out in the Constitution.
He gave an example to show it. In the event that a person has converted their religion four times, the conversion back to their first religion would not require notice, but the conversion to their second or third religion would require one.
The High Court upheld the validity of other provisions of the law that prohibited and punished forced conversions.
The logic of this judgment, that conversions are private matters and should not involve the state, was only reinforced after the Supreme Court also recognized privacy as a fundamental right. This could become relevant in the future challenges of anti-conversion laws.
Dissipation of provisions
In 2021, the high courts of Gujarat and Allahabad watered down the interfaith marriage provisions in their states’ anti-conversion laws.
In August, the Gujarat High Court granted a temporary stay of provisions prohibiting marriage conversion in the 2003 amendments to the Freedom of Religion Act. The court said this would undermine an individual’s right to choice. guaranteed by the right to life. in article 21 of the Constitution.
It also suspended the provision that required parties entering into an interfaith marriage to prove that the marriage had not been celebrated due to fraud, attraction or duress. However, this is only a provisional suspension which will only be in effect until the court decides definitively on the validity of these laws.
In November, the Allahabad High Court authorized the registration of the marriages of 17 interfaith couples even though they had not obtained the approval of the district authority for the conversion, as required by the anti- conversion of Uttar Pradesh. the court asked state authorities and the couples’ families to refrain from “interfering with the life, liberty and privacy” of these people.
He said the registrar should register the marriage “without insisting / waiting for approval from the relevant district authority regarding faith conversion”.
The district authority’s conversion approval is “repertory and not mandatory,” the court said.
He added: “If interpreted otherwise, the Law [the Uttar Pradesh anti-conversion law] would not meet the test of reasonableness and fairness, and would not pass the tests of article 14 and article 21 ”of the Constitution.
However, some High Courts have taken a different approach and have come out in favor of more checks on conversions and interfaith marriages. In December 2020, the Uttarakhand High Court asked the district magistrate to investigate when a Hindu woman converted to the Muslim faith and married a Muslim man, but failed to provide sufficient notice. as under the Uttarakhand Anti-Conversion Law. It ruled that notification to the district magistrate before conversion for marriage is compulsory.
Sometimes the courts have themselves taken care of regulating conversions. In 2017, in the absence of a law on the subject, the High Court of Rajasthan issued guidelines on conversions and interfaith marriages. The court said anyone wishing to convert must provide information to the district authorities before the conversion and that a marriage can only be celebrated if sufficient notice is given to the authorities.
The constitutional validity of anti-conversion laws in at least four states – Uttar Pradesh, Uttarakhand, Himachal Pradesh, and Madhya Pradesh – has been pending before the Supreme Court since February 2021. A bench of three court judges agreed to test the validity of these laws, but refused to suspend them. However, the case has not been heard since February 2021.
In the meantime, petitions have also been filed with several High Courts to challenge the anti-conversion laws. Any challenge to these laws would require the Supreme Court to reconsider its Stainislaus judgment while taking into account the right to privacy.