On November 14, the Madhya Pradesh High Court held that the provision of the state’s anti-conversion law requiring prior notice to a district magistrate for religious conversion violated a person’s fundamental right to life and privacy and so was unconstitutional.
Based on this finding, the court ordered the state government not to prosecute inter-faith couples who changed their religion upon marriage, even if they had done so without informing the district magistrate.
In the past year, several High Courts have passed similar orders watering down select sections of the spate of newly enacted anti-conversion laws that seek to curb inter-faith marriages and also religious conversions.
The 2021 law
The Madhya Pradesh High Court was hearing a batch of seven petitions that challenged several sections of The Madhya Pradesh Freedom of Religion Act, 2021 for violating fundamental rights, such as right to privacy and equality, and freedom of religion and speech. The lead petitioner in the case was Suresh Carleton, treasurer of the Bhopal diocese of the Church of North India, a Christian body.
This law, passed in March 2021, prohibits religious conversion on several grounds. These included marriage, coercion, misrepresentation or “any fraudulent means”. Section 10 of this law makes it mandatory for a person wanting to change their religion to submit a declaration to the district magistrate 60 days before the conversion.
Contravention of this law is punishable with imprisonment that is extendable up to ten years. Further, the offences under this are cognisable – police can arrest someone without a warrant – and non-bailable – where bail is discretionary.
Madhya Pradesh is not the only state to have such a law. In the past five years, at least seven states, all governed by the Bharatiya Janata Party, have either brought similar laws or amended existing laws to severely punish religious conversions, including those done for marriage.
The purported reason for these laws is that they will curb “love jihad” – a conspiracy theory which claims that Muslim men are marrying Hindi women solely so that they will convert to Islam. However, critics argue that these laws actually target interfaith couples and religious minorities.
The arguments
The petitioners argued that this Madhya Pradesh law gave the state authorities “arbitrary powers”. They said that religious belief is a personal matter and every citizen has the right not to disclose their religion or their “intention to switch over to another religion”. The petitioners also invoked decisions by Gujarat and Himachal Pradesh High Courts staying similar provisions in these states.
However, the government contended that this law has not been misused by anyone and that the Supreme Court had upheld a similar anti-conversion law in Madhya Pradesh in 1977.
The verdict
The Madhya Pradesh High Court held that Section 10 of the 2021 law was unconstitutional on the face of it. It said that the state government should not prosecute someone who converts without informing the authorities nor interfaith couples who marry of their own will.
This is an interim order by the High Court, which will operate until it gives further rulings on the matter.
Meanwhile, the state government has decided to challenge this order before the Supreme Court.
The High Court said that the Supreme Court in several judgements has recognised that marriage is a “personal choice” between two adults and forms a part of the right to life guaranteed under Article 21. It also noted that in its nine-judge bench decision in 2017, the Supreme Court held that the decision to marry is a part of a person’s fundamental right to privacy.
This decision is tied to the “autonomy of the individual” that is “the ability to make decisions on vital matters...life”, the Supreme Court had said.
In addition, the High Court noted that the fundamental right to religion under Article 25 included the right to choose any faith and also the choice to not express this decision to the world.
The court also relied on a 2012 decision by the Himachal Pradesh High Court. In this case, while deciding the validity of a similar provision to provide notice before conversion, the High Court had held that such a declaration can be harmful to the parties who are converting. Striking down this provision, the court had said that it might lead to communal clashes and “physical and psychological torture”.
The Himachal Pradesh court had also noted that the government did not place any data before it to show that there was an “adverse effect on public order” because of religious conversions.
Conversion law and courts
In several other instances too, the courts have stayed provisions of similar laws. In August 2021, the Gujarat High Court granted an interim stay to a 2021 anti-conversion law that prohibited marriages in which a person changed her faith unless the person who was converting her showed that the marriage had not been effected through coercion or allurement. Such a provision infringed the fundamental right to life of an individual, the court held.
Further, in November last year, the Allahabad High Court held that marriage registrars cannot refuse to register marriages on the grounds that the couple had not obtained the approval of the district authority before converting, as mandated under the state’s anti-conversion law.
Making such an approval compulsory would be unreasonable and unfair, the court said.
Apart from these cases, the legal challenge to the anti-conversion laws of at least four states is pending before the Supreme Court.
Also read:
How have legal cases seeking to strike down India’s anti-conversion laws fared?