On December 5, the Supreme Court, while rejecting objections to the maintainability of a petition filed by Advocate Ashwini Kumar Upadhyay seeking directions to the central government to take steps against forceful and deceitful religious conversions, observed that everyone had a right to choose religion, but that does not mean that one can be converted by luring. If a person wanted to help a particular community, he was welcome to do so, but the purpose of charity should never be conversion and every good work was welcome with a clear intention, the Court added.
The bench of Justices MR Shah and CT Ravikumar ordered the central government to file a detailed counter after obtaining necessary information from states regarding anti-conversion laws and other relevant information. The central government had on November 28 told the Court that it was “cognizant” of the gravity and seriousness of the issue related to forced religious conversions and will take appropriate steps to curb the same.
On November 14, the apex court bench of Justices MR Shah and Hima Kohli had observed that forceful religious conversion was a very serious issue threatening the security and freedom of the country and citizens. The Court said that conversion impacts the freedom of conscience as well. It also noted that religion is the choice of a person and he has freedom of religion. The bench remarked how force and coercion is very dangerous during religious conversions.
Following the observations, the Court directed the central government to file a counter-affidavit on steps taken to curb conversion by force.
Upadhyay had alleged in his plea that the government had failed to control the menace of religious conversion using intimidation, threats and luring through gifts and monetary benefits, black magic and superstition. The plea stated that forced religious conversion by “the carrot and the stick” and “by hook or crook” not only offends Articles 14, 15, 21, 25 of the Constitution, but is also against the principles of secularism, which is an integral part of the basic structure of the Constitution.
While citing examples, the petitioner said that religious conversions by intimidating, threatening and luring through gifts and monetary benefits is an offence in only a few places. Similarly, religious conversion by using black magic and superstition is an offence in Gurugram, but not in adjoining west Delhi. It not only violated Article 14, but was also contrary to the principles of secularism and rule of law, which are the basic structure of the Constitution, the petitioner said.
Earlier, during one of the hearings, the bench had inquired about the material basis for raising the issue. “Where are the statistics? Who’s being converted? Anybody who’s being converted, comes forward to complain?” Upadhyay responded that data was available on social media to substantiate the claim of forced religious conversions taking place throughout the country. “Social media is not data. We have instances of photographs being morphed. Some incidents being shown that this is something which has happened, but it turns out that happened somewhere in some other country 20 years ago and that photograph is shown as happening yesterday or today,” said the bench expressing its dissatisfaction.
The bench further remarked that conversion is a constitutional right and not prohibited in the country. “It is the right of an individual to profess any religion, religion of his birth or religion that he chooses to profess. That’s the freedom that our Constitution grants,” said the bench, emphasizing further that there is no such thing as “fraud” in religion and if a person is coerced into converting, it is that person’s prerogative.
The plea stated that if such conversions were not checked, Hindus would soon become a minority in India. Thus, the centre was obligated to enact a countrywide law for the same, it contended.
In September this year, the Division Bench of Justices MR Shah and CT Ravikumar had issued notice to the Union of India and states on a petition filed by Upadhyay, seeking directions to both the centre as well as states to take stringent steps against forcible and fraudulent religious conversions through intimidation, allurement, or otherwise.
On August 19, 2021, the Division Bench of Gujarat High Court, comprising Chief Justice Vikram Nath and Justice Biren Vaishnav, had stayed Sections 3, 4, 4A to 4C, 5, 6 and 6A of the amended act, saying that these provisions violated the right to life. The High Court observed that the mere fact that a marriage was between people of different religions did not prove that it had been conducted for the purposes of unlawful conversion, since there was no proof of force, allurement or fraud being involved.
In response, the Gujarat government filed an affidavit in the Supreme Court, stating that the provisions of Gujarat Freedom of Religion Act, 2003, were amended in 2021 to ensure that the process of renouncing one religion and adopting another was voluntary, genuine, and bona fide, besides being “free” from any force, allurement or fraudulent means. As per the Gujarat government, Section 5 of the Act, mandating prior permission of the district magistrate for religious conversion, through marriage or otherwise, was a “valid” provision of law which had held the field for the last 18 years. It said the objective of the enactment was to “maintain” public order within Gujarat by protecting the cherished rights of the vulnerable sections of the society, including women and economically and socially backward classes.
In November this year, the Madhya Pradesh High Court directed the state government not to take any coercive action against adult citizens under the Madhya Pradesh Freedom of Religion Act for not informing the district magistrate before converting their religion. The bench of Justice Sujoy Paul and Justice Prakash Chandra Gupta passed the order on a bunch of petitions challenging the constitutional validity of Section 10 of the 2021 Act, which required a person desiring to convert his/her religion to give a declaration in this regard to the district magistrate 60 days in advance.
Taking into account the various judgments of the Supreme Court, the High Court observed that marriage, sexual orientation and choice in relation to these aspects were in the realm of the right to privacy and had a direct relation with the dignity of the individual. The High Court further took into consideration the verdict of the Himachal Pradesh High Court on a petition challenging the constitutional validity of the Himachal Pradesh Freedom of Religion Act, 2006, which also required the citizens to inform the authorities about their wish to change their religion. The High Court noted that the Constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world.
Many state governments follow similar principles of anti-religious conversion, commonly described as conversion due to force or inducement or by fraudulent means. The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, approved in 2021, enforces conviction of offenders for one to ten years in prison, or two to ten years in case of a minor, a woman or a member of Scheduled Castes or Scheduled Tribes. According to the anti-conversion bill in UP, “unauthorized” inter-religious marriage is also an offence.
The Madhya Pradesh Freedom of Religion Ordinance, 2020, enforced in 2021, imposes offence with up to one year in prison, and a fine of Rs 5,000. In case of a minor, a woman or a member of Scheduled Castes or Scheduled Tribes, imprisonment can be up to two years of imprisonment and a fine of Rs 10,000.
The Haryana Prevention of Unlawful Conversion of Religion Act, 2022, provides a penalty of one to five years of imprisonment and a fine of Rs one lakh. It also makes concealment of religion during marriage a punishable crime, carrying a penalty of three to ten years of imprisonment and a fine of up to Rs three lakh.
The Karnataka Protection of Right to Freedom of Religion Act, 2021, was approved in 2022 and prohibits “unauthorized” inter-religious marriage. Any forced conversion is punishable by three to five years of imprisonment and a fine of Rs 20,000.
The Uttarakhand Freedom of Religious Act, 2018, mandates punishment to offenders with one to five years in prison, or two to seven years in case of a minor, a woman or a member of Scheduled Castes or Scheduled Tribes.
—By Shivam Sharma and India Legal Bureau