Anti Conversion Laws in India

Author: Rishi Tibrewal, Damodaram Sanjivayya National Law University

Introduction:

In recent years, more and more of India’s states have adopted legislation limiting religious conversion, specifically for “forcing” or “enticing” conversions. Current laws are based on different colonial legislations under British India and other princely countries (including anti-conversion, immorality and public security). Implementing such regulations appears to involve examining the converts’ states of mind by evaluating their intentions and willingness or, in other words, whether converts were “lured” or legitimate.

The government’s assessment of the conversion legitimacy tends to rest on two hypotheses: first, that individuals who convert into groups may not have freely opted to conversion; and second, those specific groups are especially sensitive to the change in their religion. These presumptions, which underlie the laws on anti-conversion and the corresponding court judgments and the findings of governing commissions, strengthen the social structures of women and lower castes as fundamentally naive and manipulated.^[1] Such legislation restricts freedom in very personal, individual decisions, as in “protective” regulations in many other areas, and therefore must be closely examined.

What are Anti – Conversion Laws?

India’s Freedom of Religion Acts or “anti-conversion laws” are state legislations created to govern involuntary religious conversions. The legislation was introduced in the 1960s following the failure at Union (or central) level to implement an anti-conversion law and initially passed by the states of Orissa and Madhya Pradesh. All these regulations seek to prevent conversions performed using ‘forcible’ or ‘fraudulent’ means or ‘inducement.’ Penalties for breaches may extend between monetary fines and jail; penalties of one to three years and penalties of 5,000 to 50,000 Indian rupees may be imposed. Some legislation provides for more stringent penalties for converting women, children or members of scheduled castes or scheduled tribes (SC/ST).

Uttar Pradesh was the ninth state to enact legislation on religious conversions, and the third state to include special marriage clauses after Uttarakhand and Himachal Pradesh. There are also anti-conversion laws in six other states – Odisha, Madhya Pradesh, Chhattisgarh, Gujarat, Jharkhand and Uttarakhand. Arunachal Pradesh and Rajasthan have enacted legislation, but enforcement rules have still not been laid down.

History of Anti – Conversion Laws in India

India is a nation which has a variety of religions and beliefs. In the Indian subcontinent four great world religions have been created: Hinduism, Buddhism, Sikhism and Jainism. Originally, during the British Colonial period, Hindu princely governments adopted laws banning religious transformation, especially in the second part of the 1930s and 1940s. The Raigarh State Conversion Act of 1936, the Surguja State Apostasy Act of 1942 and the Udaipur State Anti-Conversion Act of 1946 are some of the statutes of that period.^[2]

After Indian independence, a number of anti-conversion acts were introduced by Parliament, but none were adopted. First, in 1954 a bill was introduced to impose licensing for missionaries and conversion registration. The bill did not attract majority support and was rejected by its members in the Lower House of Parliament. In 1960, the Backward Communities (Religious Protection) Bill was introduced and in 1979, the Freedom of Religion Bill was introduced, which intended to control the conversion of Hindu into “non-Indian religions” and seeking legal sanctions for inter religious conversions. The Parliament likewise failed to adopt these bills due to a lack of support from parliament.

In 2015, a central anti-conversion measure was requested by the ruling regime – the Bharatiya Janta Party (BJP). BJP senior members, including Home Minister Amit Shah, then the President of the party, were committed to introduce a nationwide parliamentary anti-conversion act. The Law Ministry, however, struck down the premise that the move is “not sustainable,” “purely an issue of states” and is contrary to the constitution’s essential principles.

Current Anti – Conversion Laws in India

Odisha was the first state to pass a law against religious conversion in the country. In 1967, the Orissa Freedom of Religion Act was passed stating that ‘none shall, through force, induction or fraudulent means, convert any individual of one religion or other into another, directly or otherwise, nor shall anybody encourage such a conversion.’^[3] In 1973, the High Court of Orissa struck down the Act declaring that it violated the rights granted in the Indian Constitution under Article 25. The Orissa HC Order was set aside and the act was reinstated in 1977 by the Supreme Court through a five-judge constitutional bench in Rev. Stainislaus vs State Of Madhya Pradesh.^[4]

Madhya Pradesh became the second state to pass an anti – conversion legislation called Madhya Pradesh Freedom of Religion Act, 1968. In contrast to the High Court of Orissa, in 1977 the High Court of Madhya Pradesh reaffirmed the Madhya Pradesh Freedom of Religion Act, 1968.^[5] Madhya Pradesh failed to implement amending law in 2006 that mandated the priest to provide the district magistrate with a notification one month before any conversion. However, Governor Balram Jakhar of Madhya Pradesh referred the amendment to the President, who refused to give it his consent because he considered the Constitution’s freedom of religion had been infringed since it insists on the prior consent of the magistrate. The Madhya Pradesh Freedom of Religion Act, 2020, has presently replaced this act. This Legislation was implemented mainly because there were several loopholes in the previous act. The previous Act did not contain numerous definitions and elements which caused large scale forced conversion. One such example is that in the preceding act no restriction of the forced conversion of faith was mentioned or enforced under the pretense of marriage, but the new act addressed the matter and included several other aspects.

The anti-conversion laws in the State of Arunachal Pradesh are included in the Arunachal Pradesh Freedom of Religion Act, 1978 and follow similar ideas as those adopted in Orissa and Madhya Pradesh.^[6] It does not seem to be enforced, however, because the government still needs to set the rules necessary to implement it. The Arunachal Pradesh administration has apparently indicated that it intends to abolish the law, even though enforcement is not in force.^[7]

As a result of the division of the south-east districts of Madhya Pradesh, the state of Chhattisgarh was founded in November 2000. Chhattisgarh officially kept and implemented Madhya Pradesh’s statute against conversion, under the title of the Chhattisgarh Freedom of Religion Act, 1968.^[8] The supplementary rules of the Act have also been preserved.

Gujarat State’s anti-conversion law was passed as the Gujarat Freedom of Religion Act, 2003.^[9] The Act’s objective is to forbid the use of coercion, allurement or deceptive tactics to convert individuals of one faith to another. Unlike other State acts requiring a prior and subsequent notice, a person who wishes to convert must obtain the district magistrate’s prior consent for the conversion under  section 5 of the Gujarat Act. In 2006, the BJP state-level government passed an amended act known as the Gujarat Freedom of Religion (Amendment) Act in 2006. However, the Buddhist and Jain faiths objected that the proposal announced them as subsidiaries of the Hindu faith. After the governor returned the bill for review, the state administration rewrote it.

In 2007, Himachal Pradesh enacted rules on anti-conversion. In a historic 2012 ruling, Section 4 and Rules 3 and 5 of the Himachal Pradesh Freedom of Religion Rules 2007 implementing the act were struck down by the High Court of Himachal Pradesh.^[10] The Himachal Pradesh Freedom of Religion Bill, 2019 — a tighter version of its previous iteration, was passed by the state Assembly 12 years later. Marriage done only for conversion – before or after marriage – are considered null and void, as set out in Article 5 of the Act.^[11]

The Uttarakhand High Court instructed the State in 2017 to draught rules similar to those established in Madhya Pradesh or Himachal Pradesh for the purpose of checking religious conversions. The Uttarakhand Freedom of Religion Act was enacted in 2018 by the Uttarakhand government.^[12]

On November 27, 2020, the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 was enacted.^[13] In the Ordinance, the process of religious transformation is specified and illegal religious conversion is prohibited. This new rule against conversion also criminalizes “illegal conversion of religion” and “inter-religious marriages, with the express aim of altering the religion of a girl.” Unlawful conversions will be subject to prison terms of up to ten years according to the provisions of the new law.

Conclusion

In a country like India, where people from diverse religious backgrounds live together, religion has always been a very delicate subject. Interfaith marriages in today’s society are more prevalent than before, since people’s thinking has changed over time. The consenting adults in an interfaith marriage must now have to face the prerequisites, such as filing at least 60 days in advance a declaration before the District Magistrate and an inquiry into the genuine aim of the conversion. Converting religion is a matter of personal decision and inherent in the personality of a person and the above laws might lead to certain people with legitimate intentions being afraid of converting their religion.

References

[1] Laura Dudley Jenkins, Legal Limits on Religious Conversion in India ( Law & Contemp. Probs. 2008). http://scholarship.law.duke.edu/cgi/viewcontent.cgi?article=1469&context=lcp

[2] Jennifer R. Coleman, The Legal and Political Implications of Anti-Conversion Legislation for Indian Secularism, 23 (Penn Program on Democracy, Citizenship, and Constitutionalism Graduate Workshop 2007). https://www.sas.upenn.edu/dcc/sites/www.sas.upenn.edu.dcc/files/uploads/Coleman.pdf 

[3] Orissa Freedom of Religion Act, No. 2 of 1968.

[4] Rev. Stainislaus v. State Of Madhya Pradesh & Ors, AIR 1977 SC 908.

[5] Madhya Pradesh Freedom of Religion (Amendment) Act, 1968, Act 27 of 1968.

[6] Arunachal Pradesh Freedom of Religion Act, 1978, Act No. 4 of 1978.

[7] Arunachal Pradesh to scrap anti-conversion law: CM Pema Khandu, https://www.thehindu.com/news/national/other-states/arunachal-pradesh-to-scrap-anti-conversion-law-cm-pema-khandu/article24286365.ece 

[8] Chhattisgarh Freedom of Religion (Amendment) Act, 2006 Act 18 of 2006.

[9] Gujarat Freedom of Religion Act, 2003 Act No. 22 of 2003.

[10] Evangelical Fellowship of India v. State of Himachal Pradesh, 2013 (4) RCR 283 (Civil).

[11] Himachal Pradesh Freedom of Religion Bill, 2019 Act No. 13 of 2019.

[12] Uttarakhand Freedom of Religion Act, 2018 Act No. 28 of 2018.

[13] Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 Ordinance No. 21 of 2020.