Even as an anti-conversion bill awaits the approval of the Karnataka Legislative Council, legal challenges are already being prepared against it. If it is passed, Karnataka would become the tenth Indian state to have a law banning religious conversions effected on the basis of misrepresentation, force, fraud, allurement or marriage.
These laws, critics say, are used to target religious minorities and inter-faith couples.
Since 2017, five states, all led by Bharatiya Janata Party governments, have either passed new anti-conversion laws or updated existing ones. The new versions of the laws put in place stricter punishments and newer grounds for restricting conversions, such as conversion “by marriage” – where a person who adopts another faith to enter into a marriage would be deemed to have been forcibly converted.
In addition, two other BJP-ruled states, Harayana and Assam, have announced plans to move similar laws.
Anti-conversion laws have been challenged in courts ever since Odisha moved the first such legislation in 1967. However, the courts have a mixed record defending freedom of choice with regard to religion, ruling in favour of individual liberty in some cases but not in others.
The precedent for such cases was established by the Supreme Court in 1977, when a five-judge upheld the constitutionality of India’s first two anti-conversion laws: the Orissa Freedom of Religion Act, 1967 and Madhya Pradesh’s MP Dharma Swatantrya Adhiniyam, 1968.
But the verdict in this case, Stainislaus vs State of Madhya Pradesh, has been criticised by constitutional experts.
Abhinav Chandrachud, a lawyer and academic, has written that how in upholding these laws, the Supreme Court “went too far”. It could just have held that the right to propagate a religion did not extend to forced conversions, he writes. However, the court held that this right does not even include voluntary conversions.
Sanjay Hegde, a senior advocate, has said that if a larger bench re-examined Stainislaus, its logic would not stand in the light of the 2017 judgement in the Puttaswamy case recognising the right to privacy as a fundamental right.
“We now have a nine-judge judgment in the Puttaswamy case which is with regard to privacy,” Hedge said. “I cannot think of anything more private than your relationship with God.” In 2017, the Supreme Court had recognised the right to privacy as a fundamental right in the Puttaswamy case.
Freedom of conscience
The laws in Odisha and Madhya Pradesh both prohibited conversions from one religion to another if it was made on the basis of force, fraud or any inducement and allurement by way of any gift or gratification or material benefit.
The petitioners argued that restrictions on conversion contravened their fundamental rights since Article 25(1) of the Constitution grants the right to “freedom of conscience and free profession, practice and propagation of religion”. The word “propagation” should include the right to convert, they argued.
However, the court held that Article 25 does not give the right to convert but only “to transmit or spread one’s religion by an exposition of its tenets”.
This has become the primary case that justified restrictions on conversion. After this judgment, several states passed their own anti-conversion laws.
Striking down anti-conversion provisions
However, one High Court judgment stands out for striking down provisions in an anti-conversion law. In 2012, the Himachal Pradesh High Court
held that some provisions of the state’s 2006 anti-conversion law were unconstitutional.
The High Court said that while a person has the right of belief and the right to change their beliefs, they also have a right to keep their belief secret. As a consequence, the court said that the requirement for a person to give notice to the district magistrate 30 days before converting to a different religion would affect her right to privacy.
“If a person of his own volition changes his religion, there is no way that one can measure or fix the date on which he has ceased to belong to religion A and converted to religion B,” the court said.
The law also the individual from giving 30 days notice if they were converting to their “original religion”. The court held this to be irrational and contrary to the right to equality set out in the Constitution.
It gave an example to show this. In case a person has converted their religion four times, then converting back to their first religion would not require a notice, but converting to their second or third religion would require one.
The High Court upheld the validity of other provisions of the legislation that prohibited and punished forced conversions.
The logic in this judgment, of how conversions are private affairs and should not have the state’s involvement, has only been bolstered after the Supreme Court also recognised privacy as a fundamental right. This might become relevant in future challenges to the anti-conversion legislations.
Watering down provisions
In 2021, both the Gujarat and Allahabad High Courts have watered down the provisions relating to inter-faith marriages in the anti-conversion laws of their states.
In August, the Gujarat High Court granted an interim stay to the provisions prohibiting conversion by marriage in amendments to the Freedom of Religion Act, 2003. The court said that this would interfere with the right to the choice of an individual guaranteed under right to life in Article 21 of the Constitution.
It also stayed the provision that put the burden of proof on the parties entering into an inter-faith marriage to prove that the marriage had not been solemnised on account of any fraud, allurement or coercion. However, this is only an interim stay that will be in operation only until the court gives a final decision on the validity of these laws.
In November, the Allahabad High Court allowed the registration of the marriages of 17 interfaith couples even though they had not obtained the district authority’s approval for conversion, as required by the Uttar Pradesh anti-conversion law. the court asked the state authorities and the families of the couples to restrain themselves from “interfering with the life, liberty and privacy” of these individuals.
It said that the registrar should register the marriage “without insisting/awaiting approval of the competent district authority with regard to conversion of faith”.
The approval of conversion from district authority is “directory and not mandatory”, the court said.
It added: “If interpreted otherwise, the Act [the Uttar Pradesh anti-conversion law] would not satisfy the test of reasonableness and fairness, and would fail to pass the muster of Article 14 and Article 21” of the Constitution.
Another approach
However, some High Courts have taken a different approach and ruled in favour of more checks during conversions and inter-faith marriages. In December 2020, the Uttarakhand High Court asked the district magistrate to conduct an inquiry where a Hindu woman converted to the Muslim faith and married a Muslim man but did not provide adequate notice as under the Uttarakhand anti-conversion law. It held that the notice to the district magistrate prior to conversion for marriage is compulsory.
At times, the courts have themselves taken up the task to regulate conversions. In 2017, in the absence of a law on the subject, the Rajasthan High Court laid down guidelines on conversions and inter-faith marriages. The court said that anyone who wishes to convert should provide information to the district authorities before conversion and that a marriage can only be solemnised if adequate notice is given to the authorities.
Pending matters
The constitutional validity of the anti-conversion laws in at least four states – Uttar Pradesh, Uttarakhand, Himachal Pradesh and Madhya Pradesh – has been pending before the Supreme Court since February 2021. A three-judge bench of the court has agreed to test the validity of these laws but has refused to put a stay on them. However, the matter has not been heard since February 2021.
Meanwhile, petitions have also been filed before several High Courts challenging anti-conversion laws. Any challenge to these laws would require the Supreme Court to relook at its Stainislaus judgment while also taking the right to privacy judgment into account.
