Minority Educational Institutions under Article 30 of the Constitution of India are subject to various State Regulations. The interpretation of Article 30, which the framers of the Constitution of India infused with a sense of a special right to minorities of India to establish and administer educational institutions, was the matter in hand and of controversy in Sk. Md. Rafique v. Managing Committee, Contai Rahamania High Madrasah which was decided by the Supreme Court in 2020.The matter arose from the decision of the Single Bench of Calcutta High Court which was affirmed by the Division Bench of the High Court and later in appeal travelled to the Supreme Court. Madrasah Service Commission Act, 2008 did the litigation journey till the Supreme Court, where a two Judge Bench (of Justice Arun Mishra and Justice UU Lalit) finally decided to put a rest to it. In this backdrop, the present analysis lies on the right of the minorities to establish educational institutions and the government’s power to regulate the same.Continue reading “Guest Post: Article 30, State Regulations and the Supreme Court’s Missed Opportunity”
[This is a post by Surabhi Srivastava, Contributing Editor]
What do you understand of anti-conversion law? That person cannot change their religion? The answer is ‘No’; it means nothing close to that. An anti-conversion law never bans ‘Voluntary Conversion’, which means if you are with your free will converting your religion then; the anti-conversion law will not ban such a conversion. Furthermore, it only applies a ban on ‘Involuntary’ and ‘Forced’ conversions. So basically, what anti-conversion law will do is-it will punish those persons who are forcing someone to change their religion or preventing someone who voluntarily wants to change their religion.
The advent of anti-conversion law
Even at the pre-independence stage, anti-conversion laws were present; they were introduced by the Hindu Princely States. Post-independence also multiple laws were enacted but none of them was successfully implemented. Most of the anti-conversion laws that prevailed were for Hindu community so that they cannot change their religion to adopt another religion. In India, during the British rule from 1930-40, to restrict the conversion of Hindus, several laws were adopted by the Hindu Princely states as they were anticipating identity crises for Hindus amongst the British missionaries. However, in present India also, before the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2020, already 8 states had adopted anti-conversion laws.
But why is such a law not implemented all over India?
That is because the subject matter is listed under List II of the Seventh Schedule of the Constitution and hence the Union Parliament cannot make law for it to be applicable on the whole of India. However, the centre has supported the anti-conversion laws. But where does the issue lie with respect to anti-conversion laws? Well! Most people think that the law targets Christianity because there has been a buzz that continuous attempt has been made to convert Christians into Islam or Hindus to Christianity. In 1980 also laws were enacted to protect the Christian community and hence Freedom of Religion or Anti-conversion bills were passed by the government. These laws are under the threat of being abused by communal forces.
Must-Know Incidences on Anti-Conversion Law
Rev Stanislaus vs. Madhya Pradesh– the Apex Court had discussed the aspect of Propagation of Religion under Article 25 of the Indian Constitution, and it said that propagation does not extend to the idea of inducing or forcing someone to convert to your religion. A person must have a free own will to adopt another religion.
In the case of Sarla Mudgal vs. Union of India Court had further elaborated on the issue of conversion by free will. It said that if a Hindu person is converting to Islam for the mere purpose of engaging into limited polygamy then that is not a good conversion. Perhaps here the conversion was done with free will and without any inducement or promise but that aspect of having faith in the religion was missing.
So basically, everybody has the right to convert but not without faith the religion in which they intend to convert. But one cannot compel another to convert into their religion at all in states where anti-conversion law is applicable.
The United Nations Declaration of Human Rights has recognized religious conversion as a human right; therefore, technically anti-conversion law does not violate freedom of conversion. Hence we all have a right to choose our religion considering our faith and belief.
Analysis of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2020
On the face of it, the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2020 (for brevity Act) has been criticized for having understood has violative of the guarantees of the Constitution but as explained above, the Act is in consonance and not really in contravention of the Constitutionals rights of the people.
Section 3 of the Acts says ‘Prohibition of conversion from one religion to another by misrepresentation, fraud, undue influence, coercion, allurement or marriage’. Broadly segregating the provision into two segments- first being Prohibition of conversion from one religion to another by misrepresentation, fraud, undue influence, coercion, allurement and second being Prohibition of conversion from one religion to another by marriage. The former has been understudied and the later has been over-studied and termed as ‘Love jihad’. We need to understand that this act or for that matter any Anti-conversion law does not target one or two religion(s).
Article 25 of the Constitution uses the word “freely” which would mean that conversion propagated by any means which does not include free will is not a good conversion. Hence we can say that the same deduction is given in an elaborative and conclusive manner in the Act also. The Act nowhere restricts voluntary conversion, Section 3 contains the words misrepresentation, fraud, undue influence, coercion, allurement which are totally contradictory to that of ‘voluntary’. However, it also says ‘by marriage’, the meaning of which comes across as immediately after marrying a person out of one’s religion, their own religion would change in their spouse’s religion automatically. Which is not the correct interpretation and hence the laws need to throw clarity on this point.
Coming to section 6 of the Act, the main heading of which states “Marriage done for the sole purpose of Unlawful conversion or vice versa to be declared void”. The provision is nothing new to the nation since many states have such a law already implemented in their states a similar law, hence Uttar Pradesh merely being a new addition to it. Free consent is one of the prime requirements to enter into a marriage and there is no wrong in declaring any marriage as void if the intention behind solemnization of that marriage is mala fide. And if the conversion is made with a good faith then the provision under Section 8 of the Act is also justified because no person will have a sudden urge to switch religions, the belief in the religion will develop eventually and hence there seems no harm in the 60 days’ advance notice demanded under the Act. In a way, it is a good law, because once the conversion takes place after due inquiry of the Magistrate, there will raise no question on the validity of such conversion.
Section 3 indicates conversion from “one religion to another religion” these religions include all the religions in the country. Hence making it a centric issue between Hindus and Muslims is a threat to the secularity of the country. The term “Love-Jihad” has taken a popular turn owing to this misconception. Love Jihad or Romeo Jihad is an Islamophobic conspiracy theory alleging that Muslim men target women belonging to non-Muslim communities for conversion to Islam by feigning love[i]. Mere speculation cannot question the validity of the law altogether. And if at all the purpose the activity of unlawful activity is taking place then the Acti-conversion laws are good law in that case.
The act may have nuances but the objective and nature of the act are justifiable and for the public good. Nevertheless, Article 25 is expressly subject to public order, health and morality.
I have discussed the Puttaswamy Judgment here and its impact on Right to Privacy and liberty. In this post, I will be analysing the controversial ordinance passed by the Uttar Pradesh Government in the light of the Puttaswamy judgment. Recently, the UP Government has passed an ordinance called the “UP Prohibition of unlawful conversion of Religion Ordinance, 2020”. This law has been given the colour of an ‘anti-conversion’ law.
“The Problem”: the Law
The law says that, in section 6, that “any marriage which was done for the sole purpose of unlawful conversion or vice versa” shall be void. This means that if someone converts his/her religion to marry the other person, then that marriage is null and void, even after both the adults have given their consent for the marriage. Through this law, the state is ‘regulating’ marriage and the conscience of the citizens as well (which is a fundamental right under 25 of the constitution). The state is deciding what is right or wrong for its citizens. This questions the whole legitimacy of the social contract between the citizens and the state – the question that how much the state can regulate? Can the state regulate the private affairs of an individual? A person’s conscience is the most private thing available to her – therefore – is the state regulating our mind and our conscience and can they do it? This ordinance, unfortunately so, does it.
Further, section 8 of the Act states that any person who wants to convert shall ask to declare the same before the magistrate (‘DM’) ‘sixty days’ before. Then, the DM shall conduct an enquiry with the help of police to know the “real intention” for conversion. Giving such unfettered discretion to the DM or the police will increase arbitrary denial of conversion/free conscience. The executive authorities are not judicially trained to determine the ‘intention’ of the person and hence, this will increase the vast amount of violation of constitutional provisions such as liberty and right to conscience of an individual. The social scientists and theorists will help us in understanding the mentality of the officers (and the society) when it comes to converting to a minority religion. Every citizen has a “right to convert”- by exercising their freedom of conscience- under Article 25 of the Constitution. When a person chooses to change his/her religion then that person uses her conscience and she knows what is right or wrong for her. Hence, this regulation of a persons’ conscience must be unconstitutional.
Forceful conversions must be stopped as it goes against the ‘human will and conscience’ but putting so many barriers between those conversions which are not forceful is sheer violation of the rights of an individual. Converting for the sole purpose of marriage is the choice of the individual and the choice made by an individual must not be constrained through various provisions of the law. Here the law has to function according to the social realities and the reality is that the people who convert their religions for marriage are usually those couples who are performing inter-faith marriages. There is already so much fear of social exclusion, honour killing and persecution by the families which makes it difficult for an individual to make his/her free choice. Those who have the will to make his ‘free choice’ are forced to face the law which puts a blockade on their free choice.
Puttaswamy Judgment and individual’s Right to Choose
A person has freedom of conscience as a fundamental right because it protects that person’s right from the disdain of the majority society and legislature. A person who is converting to a minority religion faces the grave dangers of discrimination, life and liberty for a simple reason that his to-be-belief does not accord with the mainstream. Further, converting to a particular religion is an intimate choice of an individual and displaying that on the notice board of the DM and ‘taking permission’ from the authorities violates the ‘right to take an intimate decision about oneself’.
The law on anti-conversion can be defended only by the Supreme Court’s problematic judgment in Rev Stainislaus v State of Madhya Pradesh which is a 1977 ruling delivered by five judges of the Supreme Court. The Court in that judgment said, “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 religion.” This goes against the heart of the liberal constitutional idea. The judgment, in turns, misreads a person’s right to religion and freedom of conscience. In his three-volume book on Constitutional law, jurist Seervai argues that the “Supreme Court’s judgement is clearly wrong, is productive of the greatest public mischief and ought to be overruled.” Further, he argues, Chief Justice A N Ray “mistakenly believed that if A deliberately set out to convert B by propagating A’s religion, that would impinge on B’s “freedom of conscience”. But…the precise opposite is true: A’s propagation of his religion with a view to its being accepted by B gives an opportunity for B to exercise his free choice of a religion.”
Even in the constituent assembly, KM Munshi commented on the word ‘propagation’ and said:
“So long as religion is religion, conversion by the free exercise of the conscience has to be recognised. The word ‘propagate’ in this clause is nothing very much out of the way as some people think, nor is it fraught with dangerous consequences.”
When we propagate our religion to someone with a free mind, we are trying to persuade that person and in the consequence of it, that person uses his conscience to exercise his free choice whether she wants to convert or not. Hence, the state cannot restrict a person’s free choice to convert or not convert and the Supreme Court’s judgment in Stainislaus is ought to be overruled.
Further, the nine-judge bench in the Puttaswamy case held that “Privacy recognises the autonomy of the individual and the right of every person to make essential choices which affect the course of life.” (¶113) When a consenting adult agrees to marry another consenting adult, what they do is make an essential ‘intimate’ choice about their life which is protected by the Right to Privacy (Article 21). Similarly, when a person converts, for whatsoever reason like marriage, then that person exercises her right of freedom of conscience (Article 25)and right to make an essential choice. After the Puttaswamy judgment, the five judges ruling in Stainislaus deserve to be overruled as it is seriously flawed in its approach and it fails to recognise a person’s right to make intimate choices.
The UP Ordinance of 2020 invades an individual’s freedoms and rights guaranteed by the Constitution. It goes against the heart of the Constitution. The state has no right in intruding into someone’s private life and the choices they make. In a constitutional democracy, the citizens must be left free to make their choices and they have autonomy over their conscience. Therefore, policing citizens over the matters of religion will badly hurt India’s secular fabric and citizens’ liberty and rights!
[This is a post by Panya Mathur, Contributing Editor]
In my previous article on this blog, I discussed the conflict between the concept of Right to Religion as well as Right to Equality as enshrined under the Constitution of India (here). In this article, I will be discussing the ‘Doctrine of Essential Religious Practices’ and its evolution through the various judgements of the Supreme Court of India in the last decade. I will also be discussing the relevance and applicability of the doctrine with respect to Article 13 and Article 17 of the Constitution of India.
Understanding the Essential Religious Practice Test
The Essential religious practice test is a contentious doctrine that has been evolved by the Apex court of our country to protect and preserve only such religious practices which were essential and integral to the founding beliefs of any religion. However, it is pertinent to point out that the concept of Essential Religious Practice Test (“ERP Test”) is not expressly mentioned in the Constitution of India, but has been developed as a result of judicial activism which was necessitated by the changing perceptions and beliefs of the citizens. Irrespective of having a well-defined provision on freedom of religion under Article 25 of the Constitution of India which is only subject to the exceptions of public order, health and morality, the judicial development of the ERP adds a certain amount of subjectivity and ambiguity to the interpretation of freedom of religion.
Whether a practice is essential to a religion or not must be said about that religion and not what the Court opines. This is because in a question with relation to religious practices, it may not be open to the court to resolve the dispute by blindly applying some religious formula. Even though in certain cases the Court might be the final authority formalising the said practice as essential, it has to place a deep enquiry into the very tenets of the religion and must ensure that the Constitutional Fabric that exists in the country protecting religions is maintained.
In the words of the renowned legal scholar Dr. Ronojoy Sen,
“The role of the Court in determining what constitutes a religion and essential religious practice has remained undiminished since the formative years of this doctrine. Subsequent rulings have built on case law but hardly ever reconsidered the doctrine of essential practices.”
The doctrine of “essentiality” was primarily invented by a seven-judge Bench of the Supreme Court of India, in the case of Hindu Religious Endowments Madras v. Sri Lakshmindru Thirtha Swamiar of Sri Shirur Mutt (‘Shirur Mutt’) in 1954 to clarify the Court’s position in this aspect. The Court, in this case, held that the term “religion” must cover all rituals and practices that are “integral” to any religion, and the court went a step further and took upon itself the responsibility of determining the essential and non-essential practices of the religion as well as its ambit. The same year, Justice Mukherjee in the case of Ratilal Panachand v. State of Bombay, firmly held that the religious groups that have been given protection under Article 26(b) have autonomy in matters of religion and that no secular authority, even the Apex Court does not possess the right to declare a practice as a non-essential part of religion. Interestingly enough, in 1953 i.e. prior to the Shirur Mutt case and the Ratilal case, the Supreme Court in Saraswathi Ammal and Another v. Rajgopal Ammal made a starkly anachronistic comment in this respect,
“To the extent that any purpose is claimed to be a valid one for perpetual dedication on the ground of religious merit though lacking in public benefit, it must be shown to have a Shastraic basis so far as Hindus are concerned. The heads of religious purposes determined by a belief in the acquisition of religious merit cannot be allowed to be widely enlarged consistently with public policy and needs of modern society.”
This debate was once again revived after nearly 4 decades, in the public discourse when the Rajasthan High Court, in a widely criticized and desisted judgment, pronounced a religious practice of the Jain community as illegal and immoral, as the Bench strongly believed that the practice amounted to an act of self-destruction by the followers of the religion. The case, Nikhil Soni vs. Union of India , examined the Jain practice of Santhara or Sallekhana which involves a fast until death, traditionally undertaken at a time when the body of the said individual is unable to serve the purpose of life and is unable to cope with the responsibilities that come with being alive, in order to attain Moksha or salvation.
Sabarimala Judgment and ERP Test
After the Judgement in Nikhil Soni by Rajasthan High Court, the Supreme Court intended to settle the debate once and for all in the case of Indian Young Lawyers Association v. the State of Kerala, popularly known as the Sabrimala Judgement, but only confused the citizens further. The ERP Test, in this case, however, has been consistently applied by the Supreme Court in a very inconsistent and spurn manner. The phrase “essential religious practice” rather than being construed objectively, was determined at the whims and fancies of the Bench.
However, in this respect, it is pertinent to note that as per Article 13(3) of the Constitution of India, the term “law” includes “customs and usages having the force of law”. Justice Chandrachud, while refuting judgement of Narasu Appa Mali in the Sabrimala judgment, firmly stated that the definition of “law” under Article 13(3) is an inclusive definition in its true sense and it would be insensitive to put a rigid and restrictive interpretation upon terms of wider denotation. The definition of the term “custom” according to Hindu Law has been “Any rule which, having been continuously and uniformly observed for a long time, has obtained the force of law…in any local area, tribe, community, group or family, if it is certain and not unreasonable or opposed to public policy.” Since a religious practice is essentially one that has to be held in faith, any restriction placed on religious practice, is primarily not absolute in nature and is done so to protect the character and nature of the religion therein, due to continuous practice since times immemorial and thus, the same has gained the qualities of custom and falls under the Exception given under Article 13.
It has been noted by this very Court in the case of Durgah Committee, Ajmer v. Sayed Hussain Ali, that,
“To strike a note of caution, in order that the practice in question should be treated as part of religion, capable of being protected under Art. 26, it must be regarded by the said religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Art. 26. Similarly, even practises though religious may have sprung from merely superstitious belief and may in that sense be extraneous and unessential accretions to religion itself. Unless such practices are found to constitute an essential and integral part of a religion their claim for protection under Art. 26 may have to be carefully scrutinised; in other words, the protection must be confined to such religious practices as are an essential and an integral part of it and no other.”
On the other hand, Article 17 of the Constitution of India, states that “‘Untouchability‘ is abolished and its practice is forbidden. The enforcement of any disability arising out of ‘Untouchability’ shall be an offence punishable in accordance with law.” In the book Competing Equalities- Law of backward classes in India , the learned author states that,
“The courts have indicated that Untouchability does not include all instances in which a person is treated unclean and is a source of pollution. It does not include such temporary and explicable states of pollution suffered by e.g. women on child birth, menstruating women, moaners, persons with contagious diseases, person who eat forbidden food or violate prescribed cleanliness…Nor does it refer to situational or relative purity such as that between ordinary worshipper or priest or temple attendant…Thus, untouchability is confined to disabilities imposed upon groups commonly regarded as “untouchables” and its meaning is to be determined by reference to those who have seen no easier definition for untouchables than to define untouchability.”
However, in the case of Sri Venkataramana Devaru v. State of Mysore, the Hon’ble court held that a fundamental difference between excluding persons from temples open for purposes of worship of the Hindu public in general on the ground that they belong to excluded communities and excluding persons from denominational temples on the ground that they are not objects within the benefit of the foundation of the temple. Thus, the former shall be hit by Article 17 and the latter shall be protected by Article 26, which can be construed to mean that an Essential Religious Practice cannot be brought under the ambit of the Article 17 of the Constitution of India, unless it’s a glaring violation of the same. The Hon’ble Supreme Court of India through the course of its judgements over the past decade seems to have intertwined multiple constitutional values and concepts to accommodate the facts of each case.
However, this has led to confusion and a lack of uniformity in the application of the Essential Religious Practices Doctrine. While it was widely contested whether the court had the mandate to interpret religious practices, the Supreme Court of India has held that irrespective of a religious practice being essential or not, the constitutional values will and should prevail over essential and certain aspects of religion and the constitutional scheme should remain intact.