Religious conversions have been a subject of debate since the arrival of Mughals in India. It is a very sensitive social issue not because of psychological concerns of faith but due to a big political control. In pre Mughal era, great rulers like Chandragupta, Ashoka while in medieval era, Harshavardhan changed to other faith than the one they earlier professed. Chandragupta later in his last days converted to Jainism, Ashoka as well as Harshavardhan both converted to Buddhism. But under Hindu Law, religions other than Christianity, Islam, Parsee and Jew are all Hindu. After coming of the Mughals and the British, millions and millions of Indian people were forcefully converted. Although after independence, the anti conversion bill had been introduced in the Parliament more than once, none of them were approved.
This article is an attempt to understand the various measures taken by different state governments, their flaws and plus point in dealing the cases of conversion solely for the purpose of marriage.
Religious conversion means adopting a new religion, a religion that is different from his previous religion or religion by his birth. Freedom of religion as well as freedom of conscience have been recognized in the International laws. On 10th December 1948, UN GENERAL ASSEMBLY adopted Universal Declaration on Human Rights. In order to give effect to the Human Rights two more conventions had been adopted:-
- International Covenant on Economic, Social, Cultural Rights
- International Covenant on Civil and Political Rights.
On April 10, 1979 India accepted Universal Declaration of Human Rights and the two conventions of 1966.
British India had no such anti conversion laws but many Princely States enacted their own legislations, for example:
- The Patna Freedom of Religious Act, 1942
- The Udaipur State Anti – Conversion Act, 1946
Similar laws were enacted in Bikaner, Jodhpur, Kalahandi and Kota which were against conversion. Some states enacted anti conversion laws which made forced conversion a cognizable offence under section 295A and section 298 of the IPC.
CONVERSION CASES IN INDIA
The notorious Goa Inquisition (257 years between 1560 and 1871) was conducted by the Portuguese.in this period, those who refused the priests, be it men, women or children, were subjected to torture with the belief that those who do not believe in Jesus must be under the influence of the Devil and therefore must be brought to faith by punishment. The screams of the victims used to echo in the vicinity deep into the night when they were whipped, their limbs ripped, and their eyelids were torn and their bodies were violated in the presence of their family members.
Neither Islam nor the Hindu law recognises any conversion solely for the purpose of marriage in India. In Sara Mudgal VS Union of India, a married Hindu male converted to Islam solely for the purpose of marriage as polygamy is prohibited under section 17 of Hindu Marriage Act, 1955 while under section 494 of IPC it is punishable. Supreme Court in this matter held that conversion to other religion doesn’t dissolve the first marriage because “no one is allowed to take the benefit of his own wrong”.
Hadiya Judgment is a 2017 case in which the Supreme Court said neither the state nor the law can dictate a choice of partners and limit the free ability of every person to decide on these matters. K. S PUTTASWAMY Case of the same year which is also known as the Right to Privacy case says the same about making decisions with regards to the partner.
In Lily Thomas case, the court observed that marrying another woman converting to Islam is punishable under the bigamy laws.
ANTI CONVERSION LAW – WHY IN DISCUSSION?
Uttar Pradesh government recently passed a law prohibiting conversion solely for the purpose of marriage. Along with that whoever does so is punishable for a minimum term of one year which can be extended to 5 year with rupees 15 thousand fine. Some of the takeaways from the law is as follows:
- Conversion of woman only for marriage, then the marriage is null and void.
- Religious conversion for marriage is Cognizable offence and non bailable and the onus to prove that the conversion is not been conducted solely for marriage lies on the defendant.
- In case of conversion of a minor or of SC/ST, the jail term would increase to a minimum of 3 years which can be extended to 10 years with 25,000 rupees as fine.
- The UP law on anti-conversion also lays down strict action including the cancellation of registration of social organizations conducting mass conversions would invite a jail term of not less than 3 years which can be extended upto 10 years with 50,000 rupees as fine.
WHY DID THE U. P GOVERNMENT INTRODUCED THE LAW?
Allahabad High Court said thatReligious conversion only for marriage is not acceptable and cited the 2014 judgment of Smt. Noor Jahan Begum @ Anjali Mishra vs State of UP. It was stated in the judgment that conversion to Islam cannot be said to be a valid conversion because it was done solely for the purpose of marriage.
UP Law Commission Chief – Justice Aditya Nath Mittal in an interview to Rajyasabha TV told that they brought the said law under article 25 and article 26 of the Constitution of India. He also gave reference of anti-conversion laws already been introduced in different States.
STANDS OF OTHER STATES ON ANTI-CONVERSION ACT
Madhya Pradesh, Orissa, Jharkhand, Chhattisgarh, Uttarakhand, Himachal Pradesh, Arunachal Pradesh, Tamil Nadu etc.are among thestates which have already introduced such laws.
- Orissa and Madhya Pradesh Actswent through several scrutiny measures. Orissa in 1967 was the first state to introduce a law against religious conversions.
- MP followed with its own anti conversion law in 1968.
Orissa High Court declared the act Ultra Vires of the Constitution as it was against article 25 of the Constitution. The ruling of the Apex court cited Entry 97 of the Union List under the 7th Schedule. Madhya Pradesh High Court upheld the MP FREEDOM OF RELIGION ACT. The SC inRev. Stainislaus vs State of MP and Ors., via a 5 member Bench, considered the literal meaning of the word ‘propagate’and upheld the two Acts.
Madhya Pradesh introduced Religious Freedom Bill, 2020 that ensures that no religious conversion is carried out forcefully or through the sacred process of marriage in the state as a part of BETI BACHAO AND BETI PADHAO.It introduced a maximum punishment of 10 years and fine upto 1 lakh.
Anti-conversion laws in other states are as follows:
- Arunachal Pradesh enacted a similar law in 1878. But it has not been implemented till now.
- Tamil Nadu passed the Tamil Nadu Prohibition of Forcible Conversion Act in 2002 to curb the dirty practice of forceful conversions but repealed it in 2004.
- Still due to some flaws many devil’s advocates misused these laws, which thereby lead to states like Uttarakhand and Himachal Pradeshadding the word ‘marriage’ in their acts. To make the strictest law of such kind Uttarakhand added that even the parents or siblings of the converted person can complain to District Magistrate if it’s done unlawfully.
- Rajasthangovernmentalsopassed the anti-conversion bill, but it never got assent of the governor. According to the reports, the governor didn’t sign the bill because of complaints by religious minorities.
- The new amendments to the previous laws of The Himachal Pradesh Freedom of Religion Act, 2019 and The Uttrakhand Freedom of Religion Act, 2018both added certain specific words to their laws such as conversion by misrepresentation, force, fraud, undue influence, inducement, allurement and by marriage to prohibit unethical conversions.
ARGUMENTS AGAINST THE ANTI-CONVERSION LAWS
- It is against the constitution – the law can be deployed as a tool to infringe on the fundamental rights as guaranteed under Article 21 and 25.
- InSoni Gerry Case of 2018, the Supreme Court warned judges from playing “super guardians” and said to work without sentiment of mother or the egotism of the father.
- Ambiguity in the laws of some states.
SPECIAL MARRIAGE ACT, 1954
- This is a law which allows the solemnization of marriage without any religious customs or rituals. Basically, this law is applicable to all Indian citizens and nationals living abroad. Even Allahabad High Court stated that the Special Marriage Act is one of the endeavors towards Uniform Civil Code.
HUMAN RIGHTS CONCERNS
Human Rights Organisation and institutions have implemented concerns over the years. US Commission on International Religious freedom USCIRF held that these laws are based on unethical conversion tactics, which generally require the government officials to assess the legality of conversions out of Hinduism only, and provide for fines and imprisonment for anyone who uses force, fraud, or ‘inducement’ to convert another.
While on the other hand HINDU ADVOCACY Groups claimed that – Freedom of religious laws were mainly formulated to prevent the population, people from forceful conversion, to help people without power who are uneducated, illiterate, poor and are being preyed by different kinds of allurements
The government implementing such laws should abide not to curb one’s right to live with dignity, national interest and it should strike a balance. Adopting Special Marriage Act in conversions relating to marriage will play a crucial role in defending the marginalised communities and their faith.