The Legality of Anti-Conversion laws: A different perspective

[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.

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