The Constitutionality of Anti-Conversion Laws – Revisiting the Conversion Debate
June 4, 2022 • PRATEEK MUDGAL
About the Autor: Nishka Kapoor is a student of law currently in her 2nd year pursuing law from NALSAR University of Law.
The debate around religious conversion is raging across the country due to the controversial Karnataka Protection of Right to Freedom of Religion Bill passed in the Karnataka assembly and most recently due to the death of a seventeen-year-old student who allegedly took her own life after facing continuous harassment from her school authorities who forced her to convert to Christianity. Following the order of the Madras High Court, the case is now being investigated by the CBI. This issue has raised the need for an anti-conversion law in Tamil Nadu. But is such a law constitutional and is it even necessary are some questions that arise? Before delving into the constitutionality of anti-conversion laws, one must look at the constituent assembly debates in which several members felt strongly about conversion. Some expressed concern over the consequences of mass conversions that were organized by Christian missionaries, enjoying the protection of the colonial government, which later became a huge threat to communal harmony. When F.R.Anthony argued for the right to convert minors, K.M.Munshi brought up the need for a clause that would prohibit the conversion of minors. The members also drew up a difference between mass religious conversions and an individual who voluntarily changes their religion by exercising their freedom of conscience. It is quite clear that the assembly members were opposed only to mass conversions that happen due to fraud, undue influence and misrepresentation[i].
THE STANISLAUS JUDGMENT
In Stanislaus v. State of Madhya Pradesh, the question of whether Article 25 of the constitution includes a right to convert was raised. A constitution bench headed by Justice A.N.Ray interpreted the term ‘propagate’ and observed that "We have no doubt that it is in this sense that the word `propagate' has been used in Article 25(1), for what the Article grants is not the right to convert another person to one's own religion, but to transmit or spread one's religion by an exposition of its tenets. ". Thus it was held that Article 25 doesn’t bestow a right to convert.
The Court held that states are competent to pass laws on religious conversion on the grounds of ‘Public Order’ referenced in Item 1 of the Constitution’s State List. The court further observed, “if the forcible conversion had not been prohibited, that would have created public disorder in the States”[ii].
ANTI CONVERSION LAWS IN INDIA
Ten states in India have anti-conversion statutes with Karnataka being the most recent state to pass an anti-conversion bill. The Himachal Pradesh Freedom of Religion Act 2006 was subjected to judicial scrutiny by the Himachal Pradesh High Court which found certain sections of the Act to be ultra vires the constitution. According to section 4 of the Act
“A person intending to convert from one religion to another shall give prior notice of at least thirty days to the District Magistrate of the district concerned of his intention to do so and the District Magistrate shall get the matter inquired into by such agency as he may deem fit”
Failure of giving notice would amount to a punishable offence under this section. It must be noted that no such notice is required when a person reverts to their religion of birth[iii].
While analyzing section 4 of the act, the Court observed that “A person not only has a right of conscience, the right of belief, the right to change his belief, but also has the right to keep his beliefs secret. The State must have material before it to show what are the very compelling reasons which will justify its action of invading the right to privacy of an individual. A man’s mind is the impregnable fortress in which he thinks and there can be no invasion of his right of thought unless the person is expressing or propagating his thoughts in a manner that it will cause public disorder or affect the unity or sovereignty of the country.[iv]”
Anti-conversion laws after Puttaswamy’s judgment
The constitutional validity of anti-conversion laws can be challenged on the ground of violation of privacy. In the landmark Justice K. S. Puttaswamy v Union of India, a nine-judge bench of the Supreme Court unanimously held that the right to privacy is guaranteed under Article 21 of the Constitution. There is little doubt that the anti-conversion laws are a blatant violation of privacy. For example, according to Section 8 of the Karnataka Protection of Right to Freedom of Religion Bill, a person who wishes to convert shall inform the District Magistrate at least 30 days in advance. Following that, the District Magistrate shall notify the general public about the proposed conversion by displaying the information on the notice boards at the offices of the District Magistrate and Tahsildar. If someone objects within 30 days, the District Magistrate is obligated to get an enquiry conducted about the intention and purpose of the conversion. Following the conversion, the converted person shall file a ‘post-conversion declaration’ in the office of the District Magistrate which shall again be displayed on the notice boards to inform the public. If the conversion is approved, all the details will be recorded in a register. If one fails to follow the procedure set out in this section, it would amount to a jail term of one to three years[v].
The human mind is indeed an impregnable fortress. A person’s relationship with God is a highly personal affair which can, under no circumstances, be displayed on a noticeboard for the whole world to see. It is a violation of the fundamental right to privacy under Article 21 of the Constitution.
ARE ANTI-CONVERSION LAWS NECESSARY?
It is tempting to brand anti-conversion laws as ‘unconstitutional’ and ‘draconian’ but one must take a long hard look at reality. It is a fact that sections of the population are converted to a certain religion, mostly by allurement and misrepresentation. Renowned journalist and writer T.J.S.George, in a recent article, wrote about how Christian missionaries convert the masses- “Christian missionaries are also infamous for the unscrupulous ways in which they cast their nets. They use all tactics such as spreading a lie and even giving incentives of various nature. One of the ways is by promising a visa to Canada, England or the USA upon conversion. They entrap illiterate and disabled people by convincing them that God would take away their pains and sufferings. Another way is by giving them incentives such as free medical aid in hospitals run by Christian missions, free education and financial benefits.[vi]” From this, one cannot still be in denial of the fact that religious conversion by allurement, fraud and misrepresentation has been going on since colonial times and is prevalent even today across India.
We must again revert to the constitutional assembly debates in which the members were opposed only to mass religious conversions by allurement. Every individual has the right to freedom of conscience and can convert to any religion of their choice voluntarily. Any law that aids the state in policing the personal beliefs of an individual is unconstitutional. What is necessary, is a law that curbs only forced conversions and conversions by allurement and misrepresentation. Only such a law would be able to meet the constitutional standards.
[i] Interim Report on Fundamental Rights 1 May 1947 vol 3.
[ii]Stanislaus v. State of Madhya Pradesh 1977 SCR (2) 611
[iii] The Himachal Pradesh Freedom of Religion Act 2006
[iv] Evangelical Fellowship of India and Anr v. State of Himachal Pradesh CWP No. 438 of 2011A
[v] Supra note 3
[vi] T.J.S.George, ‘Rogues can be dressed as Priests’ The New Indian Express (6 February 2022) < https://www.newindianexpress.com/opinions/columns/t-j-s-george/2022/feb/06/rogues-can-be-dressed-as-priests-2415861.html > accessed 7 February 2022.