This article is written by Gyaaneshwar Joshi, a student of the Faculty of Law, Jamia Millia Islamia, New Delhi. This article discusses the provisions and controversies related to the MP Freedom of Religion Act.
The Governor of Madhya Pradesh promulgated the Madhya Pradesh Freedom of Religion Ordinance on 7 January 2021, which after being notified by the State Government on 27 March 2021 became the Madhya Pradesh Freedom of Religion Act, 2021 (the Act). The main purpose of the Act is to restrain any kind of forceful and illegal religious conversions done by religious organizations or extremist groups. The Act also declares any marriage done solely for religious conversions as null and void, and mandates to provide maintenance to the wife and children.
The Madhya Pradesh Freedom of Religion Act, 2021
The objective of the Act is to:
- Penalize religious conversions through fraudulent means, especially those done for the sake of marriage.
- Declare marriages performed with the intent to convert any person as null and void.
- Introduce long-term imprisonments and hefty fines for violators.
- Add provisions to support wife and children.
- Mandate religious priests to inform the authority before organizing any conversion ceremony.
The Preamble of the Act reads:
“An Act to provide freedom of religion by prohibiting conversion from one religion to another by misrepresentation, allurement, use of threat or force, undue influence, coercion, marriage or any fraudulent means and for the matters connected therewith or incidental thereto.”
This Act is divided into 18 sections. The key provisions in the Act are as follows:
- SECTION 3: Prohibition of unlawful conversion from one religion to another
Any conversion through misrepresentation, allurement, force, undue influence, coercion, marriage, or any other fraudulent means, shall be considered null and void. Also, abetment and conspiracy for religious conversion shall be prohibited.
- SECTION 4: Complaint against the unlawful conversion of religion
A written complaint can be filed to the local police station by a person who has been unlawfully converted, or the parents and siblings can also file a complaint on behalf of the victim. The ‘guardian’ or ‘custodian’ can approach the court with their complaint and get an order for an offence to be registered with the police.
- SECTION 5: Punishments for contravention of Section 3
- Whoever converts or attempts to convert any person through misrepresentation, allurement, force, undue influence, coercion, marriage or any other fraudulent means is liable for a punishment of 1 to 5 years imprisonment with a minimum fine of Rs. 25,000.
- Whoever indulged in illegal conversions of members of Scheduled Castes, Scheduled Tribes, and minors is liable for a punishment of 2 to 10 years imprisonment with a minimum fine of Rs. 50,000.
- Whoever intentionally conceals their religion while solemnizing the marriage to the person of another religion is liable for imprisonment of 3 to 10 years and a minimum fine of Rs. 50,000.
- In the cancelled case of mass conversion, that is. conversion of two or more persons at the same time shall be punished with 5 to 10 years imprisonment and a minimum fine of Rs. 1 lakh.
- If the offence is committed for a second time or in case of a subsequent offence, the imprisonment shall be of 5 to 10 years with a fine.
- SECTION 6: Legality of marriage performed with the intent to convert a person
Any marriage solemnized in contravention of Section 3 shall be considered null and void.
- SECTION 7: Jurisdiction of Court
A person filing a petition to declare a marriage null and void, or in a case under Section 4, if any sibling, parents, or person who is related by blood, marriage, or adoption is filing on the victim’s behalf, shall be mandatory present before the Family court, or the court having jurisdiction within the local limits where;
- The marriage was solemnized
- The petitioner who is filing a petition resides
- Any of the party to the marriage resides
- Petitioner resides on the date of presentation of the petition.
- SECTION 8: Inheritance Right
A child born out to the victim woman shall be considered ‘legitimate’ even after the marriage is declared void. Any woman whose marriage is declared null and void under Section 6, her children are entitled to receive maintenance and inherit the father’s property, according to law governing the inheritance of the father.
- SECTION 9: Right to Maintenance
- SECTION 10: Declaration before conversion of religion
Any person willing to convert needs to apply to the District Magistrate 60 days in advance and shall submit a declaration stating that person wants to undergo a religious conversion of their own free will and without any force, coercion, undue influence, and allurement. Also, the religious leaders facilitating the conversion will have to inform the District Magistrate 60 days before the intended date of conversion.
- SECTION 11: Punishment for violation of Section 10
Any institution and organization that violates any provisions of the Act or any person connected to such organization and institution shall be liable for punishment as provided under section 3.
The registration of an institution or organization that indulges in promoting or doing conversions will get canceled by the Competent Authority.
- SECTION 12: Burden of Proof
The burden of proving innocence lies on the accused. The guilty person has to prove that conversion was not done through misrepresentation, allurement, use of threat or force, undue influence, coercion, or any other fraudulent means.
- SECTION 13: Category of offence
Every offence committed under the Act shall be cognizable, non-bailable, and tried by the Court of Session.
- SECTION 14: Investigation of offence
The investigation shall only be done by the police officer not lower than the Sub-Inspector rank at the local police station.
The need to repeal the Madhya Pradesh Dharma Swatantrya Adhiniyam, 1968
The Act repealed the Madhya Pradesh Dharma Swatantrya Adhiniyam, 1968. The State Government said that earlier legislation did not effectively handle the skyrocketed cases of forceful conversions in the state.
Each offence was ‘bailable’ in the previous Act, therefore acquiring bail was an easy task, but now all the offences are non-bailable with long-term imprisonments. Similarly, several provisions like the inheritance right of a child on the father’s property and the right to maintenance are now added, which were absent in the previous Act.
Right to Religion versus Right to Convert
Article 25(1) of the Indian Constitution empowers every Indian citizen to freely practice, profess and propagate one’s religion within the prescribed limits of the law. The Supreme Court in the judgment of Digyadarsan Rajendra Ramdassji v. State of Andhra Pradesh (1969) decided that the right to propagate one’s religion means a right to communicate a person’s belief to another person or to expose tenets of that faith, and does not include the right to ‘convert’ any person to the former’s faith. Therefore, the right to convert is exempted and does not enjoy legal protection under the right to freedom of religion enshrined in the constitution.
This judgment was later challenged in Rev Stanislaus v. State of Madhya Pradesh (1977) which discussed the issue of whether the fundamental right to practice and propagate religion includes the right to convert.
The Court held that Article 25(1) provides freedom of conscience to every citizen, but purposely converting another person to one’s religion in the pretext of spreading the tenets of that religion, infringes the essence of ‘freedom to conscience’ guaranteed by the constitution. Therefore, if a person wants to adopt any other religion, valid reasons must be produced for such conversion which shall be accompanied by free will.
A bunch of Public Interest Litigations have been filed by the religious organizations and law students, in both the Supreme Court and the High Court of Madhya Pradesh. However, the Supreme Court refused to entertain a PIL filed against the ordinance and asked the petitioners to first approach the Madhya Pradesh High Court for getting the views of the High Court regarding this matter.
A PIL was filed before the Madhya Pradesh High Court to challenge the ordinance on the grounds of being violative of Articles 14, 19, 21, and 25 of the Constitution. The petitioner submitted that ordinance was abruptly passed by the State Government without any formal consultations and suggestions and in the absence of requisite data of forced conversions happened in the state, which is a gross violation of the principle of ‘due process of law’ and reflects the abuse of legislative powers.
The ordinance was also challenged on the ground of being violative of the ‘right to privacy’ held by the Supreme Court in the KS Puttaswamy v. Union of India (2017) judgment. This judgment defines the term ‘privacy’ in which every citizen has the right to be left alone and make their own decision about family life, marriage, procreation, etc.
Whereas, a mandatory approval from the District Magistrate before any religious conversion for solemnizing interfaith marriage violates the right of privacy enshrined under Article 21 of the Constitution.
One of the petitioners stated that the proposed ordinance negates the concept of ‘transformative constitutionalism’ and can be used to target a particular religion or group that could lead to promoting hate, divisiveness and schism in society. The arbitrariness of Section 10(3) was challenged on the ground that it does not prescribe the required time for the District Magistrate to acknowledge the reply of the notice, which may result in unnecessary harassment of an innocent person and his family members.
The session court is empowered to hear matters registered under the Act, whereas Section 12 provides that the burden of proving innocence lies wholly on the accused, which means a person will be assumed guilty until proven innocent. A PIL was filed against this provision for violating the fundamental principles of criminal jurisprudence which mandates that – every person is innocent of any offence until proven guilty. This PIL was backed by the judgment of Shakti Vahini v. Union of India (2018) where the Supreme Court stated that the burden of proof can be reversed only in matters where some foundational facts are proved by the prosecution.
Similarities with the Prohibition of Unlawful Conversion of Religion Ordinance, 2020
Both the Madhya Pradesh Freedom of Religion Act, 2021 and UP’s Prohibition of Unlawful Conversion of Religion Ordinance, 2020 show resemblance in many of the provisions and both have declared marriages solemnized for unlawful religious conversions as null and void, and contain a similar imprisonment term for 2 to 10 years.
However, there are certain provisions like inheritance of father’s property and providing maintenance to the family which is absent in UP’s Ordinance, thus making Madhya Pradesh’s Act the most stringent law against religious conversions in the country.
In both states, an organization or priest needs to apply to the district administration 60 days in advance of the religious conversion ceremony taking place. Failing to comply with the rules can cancel the registration of the organization and the priest facilitating the conversion can be sentenced to imprisonment as per rules mentioned under Section 5 of the Act.
A strong deterrent towards better development
Three Indian states have implemented anti-conversion laws that outlaw marriages done solely for religious conversions, while recently Madhya Pradesh was added to this list followed by Uttar Pradesh and Himachal Pradesh. Some state governments have expressed their desire to adopt similar kinds of rules to prevent the illegal practices of forceful conversions, or at least to declare marriages that specifically took place for conversions as null and void.
The anti-conversion laws can be beneficial to restrain unlawful marriages solemnized only for conversions. The strict rules in the provisions of the Act can be beneficial to curtail unlawful conversions and to instil fear in the mind of the offender to stop enforcing personal religious beliefs on another person.
Religious acts are always deterrent to crimes and never made to target any particular religion, but they are made to properly execute the principles of ‘right to freedom of religion’, which is the basic fundamental and human right of every citizen.
Judicial role with respect to marriage and religion in India
A.S. Narayana v. State of Andhra Pradesh (1996)
Rev Stanislaus v. State of Madhya Pradesh (1977)
The court clarified the term ‘right to convert’ in the context of the fundamental right to practice & propagate religion as defined under Article 25 of the Constitution. The court held that the right to propagate one’s religion does not allow anyone to ‘forcibly’ convert any person to one’s religion.
Shafin Jahan v. Ashoka KM (2018)
The Supreme Court held that the matters of dress, food, idea or ideology, love, and partnership are central aspects of one’s identity, and neither the state nor law can dictate a choice of partners to limit the free ability of every person to decide on these matters. This judgment allowed the “Right to choose a partner of your choice” as a fundamental right of every citizen.
The Madhya Pradesh Chief Minister, Shivraj Singh Chauhan said the law will generate a leeway to Beti Bachao’s campaign and does restrict only forceful conversions because the provisions in the new Act allow for lawful conversion that can be done by informing the District Magistrate.
Since the law came into force, it has been severely criticized by the opposition party and several legal activists for violating certain fundamental rights. However, the state government still needs to work on some of the provisions because the proviso is missing in the new Act that will listen to any person restrained by the ‘sufficient cause’ while discharging lawful duty in compliance with the Act.
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