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Anti-conversion laws

Anti-conversion laws in India

August 17, 2021

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This article is written by Ms. Aporva Shekhar from KIIT School of law. This article is a thorough analysis of anti-conversion laws existing in the Indian states and possible avenues for resolving existing loopholes.

Table of Contents

Introduction

The purpose of anti-conversion legislation operating in many states in India is to limit and possibly restrict forced conversions through enticement. The current legislation dealing with anti-conversion trace their roots back to several colonial statutes which covered a wide range of subjects like public safety, apostasy, and anti-conversion Acts in colonial India. The rationale behind implementing these statutes mostly relied on assumptions about whether the people involved were coerced or converted by their own free will. The modern statues prevalent in India today emphasize on two points, assuming firstly that people who have converted might not have done so out of their own free will, and secondly, that certain sects and classes of individuals are more vulnerable to coercion when it comes to conversion.

Anti-conversion laws adopted by the Indian states have been scrutinized for their vague and extraordinarily broad language which clashes with the fundamental right of freedom guaranteed under the Indian Constitution. The assumptions made by the present anti-conversion legislations reinforce stereotypes of certain sects and classes of people being more primitive and therefore more susceptible to coercion and manipulation. Hence, anti-conversion laws like other ‘protective’ laws in this context draw a lot of scrutinies as they restrict personal freedom and choices.

Anti-conversion laws in India – an insight

History of anti-conversion laws in India

The very first anti-conversion laws were born in colonial India, introduced by the princely states during the period of the 1930s to 40s. These first anti-conversion laws were made in retaliation to the conquest of the British missionaries to preserve and protect the cultural identity of the princely states. Many princely states had resorted to this measure and enacted their anti-conversion laws like the Udaipur State Anti-Conversion Act, 1946, the Raigarh State Conversion Act, 1936, and several other states like Patna, Jodhpur, Bikaner, and others had done the same.

After independence, several anti-conversion bills were introduced but none of them gained legitimacy due to lack of popular support. The first Bill that was rejected was introduced in 1954 was the Indian Conversion (Regulation and Registration) Bill, which sought to implement compulsory registration of conversion and licensing missionaries. Another similar Bill was introduced in 1960 aimed at limiting the conversion of Hindus to other religions like Zoroastrianism, Christianity, and Judaism, which were deemed by the Bill to be ‘non-Indian religions’, this Bill was known as the Backward Communities (Religious Protection) Bill. Another such Bill was the Freedom of Religion Bill which was introduced in the year 1979 aiming to restrict inter-religious conversions. And while these bills were introduced, they were never legitimized as statues due to lack of parliamentary sanction.

Scenario and status of anti-conversion statutes in independent India

The Ministry of Law and Justice clarified the status of enactment of anti-conversion laws nationwide, stating that such an endeavour offence Yulia was not tenable as it was purely a state subject. And as such many Indian states have enforced their anti-conversion laws to regulate and limit conversions that take place as a result of coercion, force, fraud, or any other malicious means. States began introducing their Freedom of Religion Acts in the 1960s after several failed attempts had been made to enact a nationwide anti-conversion statute, the first states to implement these were the states of Orissa and Madhya Pradesh.

Presently, only eight states in India have anti-conversion laws in effect out of twenty-nine. Jharkhand, Odisha, Arunachal Pradesh, Uttrakhand, Chattisgarh, Gujarat, and Himachal Pradesh are the states who have implemented the anti-conversion laws, and while several other states like Manipur are contemplating the same proposition, none have so far reached any conclusion resulting in a legitimate anti-conversion statute. Even the anti-conversion laws in Arunachal Pradesh have not yet been implemented due to the absence of subsidiary rules.

The anti-conversion laws were mainly aimed at curbing the conversion initiated by Muslims for non-muslim people in the 1980s and the conversions done by Christian missionaries in the 1990s due to promoting active proselytizing as a part of being a devout Christian, the common sentiment prevalent among the masses at the time was that such conversions enforced western colonialism. Even though there are variations in the statutes from state to state, the main objective of the laws remains identical, which is to restrain the ability of individuals and communities to convert from the religion of their ancestors to a different one, advocating that certain sects of people, women, and children can be easily manipulated to convert and therefore need protection in the form of anti-conversion laws.

The eight states in India and the anti-conversion laws

Arunachal Pradesh

The Arunachal Pradesh Freedom of Religion Act gained presidential assent on October 25th, 1978 but to date has not been enforced in the state as the government is still in the process of framing the subsidiary rules. The legislation aimed to counter the perceived threat faced by indigenous religions of conversion. Section 3 of the above-mentioned Act stipulates that no individual should seek to convert anyone else directly or through other means, including coercion, fraud, inducement, or force, and neither should any person abet such an attempt.

The term ‘conversion’ as defined by the Act means renouncing one’s religion to adopt another and consequently, the term convert has to be interpreted accordingly. Under the abovementioned legislation, the term ‘indigenous faith’ has been specifically defined to include religious beliefs, rituals, rites, practices, abstinence, festivals, observances, customs, and performances that have been performed and sanctioned by the indigenous people of the state. The term ‘force’ has been defined to mean anything causing an apprehension of any injury, including divine displeasure and the threat of being excommunicated. The term ‘fraud’ was defined to mean any form of misrepresentation or deception and the term ‘inducement’ was defined to mean the promise of any form of pecuniary, material, or other benefit or gratification.

According to several scholars, the term ‘conversion’ as construed under this Act excludes reconversions to native faith, and this aspect of the law has attracted criticism from many scholars and human rights organizations. The objective of the legislation is to restrict and regulate conversions to other faiths, specifically Christianity and Islam which can be inferred to mean unequal protection and treatment by the law. But the law is not actually in force and the state government also plans to repeal it, as stated by the Chief Minister that the law in its current form might be a tool to serve malicious ends by irresponsible officials and it demoralizes the people.

Odisha

The Orissa Freedom of Religion Act, 1967 was the first anti-conversion enactment in the country. Section 3 of the above-mentioned Act stipulates that no individual should seek to convert anyone else directly or through other means, including coercion, fraud, inducement, or force, and neither should any person abet such an attempt. Any act incriminated under this statute is a cognizable offence with the crime of ‘forcible conversion’ attracting a criminal penalty of imprisonment up to two years and a monetary penalty up to ₹ 10,000 under Section 4 of the Act.

This Act has defined several terms included in Section 3 of the same for identification of conversion, the word ‘conversion’ itself has also been defined to mean renouncing one’s religion to adopt another. The term ‘force’ has been defined to mean anything causing an apprehension of any injury, including divine displeasure and the threat of being excommunicated. The term ‘inducement’ was defined to mean the promise of any form of pecuniary, material, or other benefit or gratification, and ‘fraud’ was defined to mean any form of misrepresentation or deception.

The above-mentioned Act was declared ultra vires to the Constitution in the case of Yulitha Hyde & Ors. v. State of Orissa & Ors (1972) by the Orissa High Court in the year 1973, the Court observed that Article 25(1) guarantees the right to propagate religion and conversion which forms an integral tenet of the Christian faith. The court further stated that the term ‘inducement’ as defined under the Act was vague and too broad and would potentially cover many proselytizing activities, directly violating Article 25(1), and therefore the state lacked jurisdiction to legislate in the matter of religion covered under the seventh schedule of the Constitution. This decision of the Orissa High Court was later overturned in the year 1977 by the Supreme Court in the case of Rev. Stainislaus v. State of Madhya Pradesh (1977). Another development took place in the year 1989 when the Orissa Freedom of Religion Rules were introduced mandating intimation of the conversion to the authorities, including the personal details of the priest presiding and the people who would be involved in the ceremony. Failure to comply with the rules would attract a pecuniary penalty of ₹ 10,000.

Madhya Pradesh

The Madhya Pradesh Freedom of Religion Act, 1968 was the second anti-conversion legislation to be enacted in an Indian state. The Act is almost identical to such anti-conversion legislation present in other states, save for the distinction of the term ‘inducement’ being replaced with the term ‘allurement’ which has been defined in Section 2(a) of the abovementioned Act as being a benefit, gift or temptation of material or pecuniary nature. Section 3 of the Act states that no individual should seek to convert anyone else directly or through other means, including coercion, fraud, inducement, or force, and neither should any person abet such an attempt.

The Act incriminated under this legislation attracts a penalty of imprisonment of up to 1 year and a fine of ₹ 5000 and if the same crime of conversion is done with a minor or woman the penalty can be increased to two years with the pecuniary penalty going up to ₹ 10,000. Section 5 of the Act makes it mandatory to notify the District Magistrate within seven days of such conversion by the presiding priest or any other person involved in the conversion.

The Madhya Pradesh High Court digressed from the stance of the Orissa High Court regarding the validity of their respective Acts in 1977, and the Madhya Pradesh High Court upheld their Freedom of Religion Act 1968, stating that the Act protects religious freedom by restricting and regulating conversions caused by force, allurement and other malicious means. In 2006, the state government tried to introduce an amendment unsuccessfully that would require the presiding priest of a conversion ceremony to inform the District Magistrate through notice the particulars of the religious ceremony, the person being converted and other relevant details one month before the ceremony.

The failure to comply with this proposed amendment would result in a penalty of imprisonment of 1 year or a fine of Rs. 5000 or both. There was another requirement in this proposed legislation which would make it mandatory for the person seeking conversion to declare their intentions before a Magistrate and a failure to comply would have resulted in a pecuniary penalty of Rs. 10,000. Furthermore, the District Magistrate would be required to convey information to a Police Superintendent who would then conduct an investigation and report back to the Magistrate. This Bill was referred to the President for his assent by then-Governor Balram Jakhar, but the President refused to give his assent as it violated freedom of religion by relying on prior permission for conversion.

A similar Amendment that would make the law more stringent was approved by the Madhya Pradesh Legislative Assembly in 2013, but the Governor has not yet granted assent to the proposed amendment.

Chhattisgarh

After separation from Madhya Pradesh in 2000, Chhattisgarh retained the anti-conversion Act of its parent state and its subsidiary rules and merely changed the title to Chhattisgarh Freedom of Religion Act, 1968. From 2000 to 2010, several attempts were made by the presiding state government to make the existing anti-conversion laws more stringent. A measure passed in 2006 with a similar aim which sought to redefine ‘conversion’ to not include reconversion to native faith is still pending assent. The proposed measure would penalize forced conversions more strictly, and mandate the requirement of prior permission by a District Magistrate and a notice to be given thirty days before the conversion ceremony could take place.

The requirement of prior permission enabled the Magistrate to allow or refuse a conversion upon inquiry of the same, and permission to convert given would only be valid for two months from the date it was given. The order would only be appealable to a district judge whose decision shall be final with no recourse. Furthermore, any person contravening the orders of the District Magistrate would be committing a cognizable offence attracting a penalty of imprisonment up to three years and a fine extending up to Rs. 20,000. As several presiding Governors of Chattisgarh refused to give their assent, the proposed bill is still being reviewed by the Ministry of Home Affairs.

Gujarat

The Gujarat Freedom of Religion Act was enacted in 2003 to prevent conversion by fraudulent means, allurement, or force. Section 3 of the Act is similar to the same of the other state anti-conversion acts and criminalizes any conversion that is a result of fraudulent means, allurement, or force.

However, the Act differs while describing the term convert as compared to other acts, stating that a convert is someone who is made to give up their native religion to adopt another, implying that converts have been wrongfully made to renounce their religion. The penalty for not complying with Section 3 of the Act is also more stringent as compared to other states, with imprisonment extending to 3 years and fines extending to ₹ 50,000. The penalty becomes even more severe if a minor or woman is converted with imprisonment increasing up to four years and the fine may extend to Rs. 100,000.

Section 5 of the Act also differs from other legislation as it mandates prior permission concerning the conversion that must be taken by the person wanting to get converted and they must also send a notice regarding the particulars of the ceremony to the concerned District Magistrate. The Gujarat Freedom of Religion Rules, 2008 make an additional compliance requirement which mandates that a person must give the above-mentioned notice within ten days of the conversion ceremony and a failure to comply would result in imprisonment of up to a year or a fine of ₹ 1000 or both.

The Amendment to the Act that was introduced on 21st July 2006 sought to replace Section 2(b) of the Act which defines the term ‘convert’. The purpose was to include that conversions within the same religious denominations are not be included within the meaning of converts, further stating that Jainism and Buddhism were denominations of Hinduism, Shia and Sunni were denominations of Islam and Catholic and Protestant were denominations of Christianity. This proposition was opposed by the Buddhists and Jain communities as they were being classified as denominations of Hinduism and not a distinct religion. Thus, the Bill was retracted by the state government after the governor returned it for reconsideration.

Himachal Pradesh

On 18th February 2007, the Himachal Pradesh Freedom of Religion Act, 2006 came into force and it strongly resembled its counterparts. Section 3 of the Act restricts conversion that is a result of fraudulent means or inducement, the provision of this Section also invalidates any conversion that is a contravention of the section. Section 4(1) of the Act mandates the requirement of prior notice to the District Magistrate who may order an inquiry 30 days before a person intends to convert and failure to comply would result in a penalty.

Section 5 of the Act lays down the penalty for failure to comply with Section 3, stating that it may result in imprisonment extending to two years, a fine extending to ₹ 25,000, or both. And in cases involving children, SC/ST, or women the penalty may be increased to imprisonment of five years and a fine of ₹ 50,000.

In the landmark case of Evangelical Fellowship of India v. State of Himachal Pradesh (2011), the Himachal Pradesh High Court struck down rules 3 & 5 of the Himachal Pradesh Freedom of Religion Rules 2007 and Section 4 of the abovementioned Act. The Court referred to the anti-conversion acts of Odisha and Madhya Pradesh to conclude that these provisions had gone beyond the other legislations and had infringed the rights of the converted individuals.

Jharkhand

After referring to the draft Bill of anti-conversion legislation in other states, the state of Jharkhand enacted its anti-conversion law on 12th August 2017. The Jharkhand Freedom of Religion Act was enacted citing the reason that the humanitarian work of missionaries is a front to manipulating the backward population to conversion. The Jharkhand Dharm Swatantra Bill, 2017 was passed by the Jharkhand legislative assembly and assent was given by Draupadi Murmu, then the Jharkhand Governor. Section 3 of the Act stipulates the prohibition of forced conversions and Section 4 of the Act states that violation of the subsequent section is a non-bailable, cognizable offence with a penalty of imprisonment extending till 3 years, a fine extending to Rs. 50,000, or both. And in cases of conversion of women, SC/ST or minor, the penalty becomes severe with imprisonment increasing to the limit of four years and the fine increasing to the limit of Rs. 100,000.

Section 5 also provides that a person must seek prior permission from the district magistrate and upon conversion must notify him according to the prescribed rules. Another inconsistency regarding this legislation is that Section 1(3) of the Act states that it shall come into force on the date of its issuance but several sections of the act require the subsidiary rules for the operation which were not issued until 21st February 2018, the first formal set of rules.

Uttarakhand

In response to a habeas corpus case wherein, a man had converted to facilitate his marriage the High Court of Uttarakhand suggested to the state government to introduce an anti-conversion law to curb sham conversions on 20th November 2017. And thus, 4 months after the decision of the High Court in the case the state government introduced the Bill on 18th April 2018. Section 3 of the Act is identical to its counterparts in other states, prohibiting forced conversions with a penalty of imprisonment from one to five years and an unspecified amount of fine. And in cases involving women, SC/ST, or children the penalty is increased to seven years and a fine.

This section also exempts reconverts, not including them under the definition of conversion under the act. The major difference between Uttarakhand’s anti-conversion laws and other such laws is that it contains a provision on marriage related to religious conversion. Section 6 of the Act states that conversion taking place for the sole purpose of marriage is null and void. Section 8 of the Act stipulates that a person who wishes to convert must make a declaration in front of a District or Executive Magistrate one month before the proposed conversion. The presiding priest is also required to notify the magistrate one month before the ceremony, and upon receiving the information the magistrate might initiate an inquiry, and the failure to comply with the requirements will render the conversion void and result in prescribed punishment.

Loopholes existing in the law and possible solutions

While there is reason to suspect that some conversions are merely a sham, the existing anti-conversion laws leave room for error which might result in oppression and misuse by authorities.

The uncertain and vague terminology presents a serious avenue for misuse, the terms used in the anti-conversion laws leave room for ambiguities or are too broad, extending to subjects far beyond the protection of religious freedom.

This scheme of acts does not appear to be motivated by the idea to protect the minorities but might be an overzealous attempt to restrict and regulate conversions. These vague and ambiguous terms provide a loophole for malefactors to apply them discriminatorily, infringing on the very right of freedom that they seek to guarantee.

The definition of conversion itself presents another drawback of the anti-conversion legislation. As seen above the definition differs from state to state and whereas in some states like Madhya Pradesh and Chhattisgarh it means renouncing your native faith to adopt another, in others like Gujarat it means to make someone give up their native faith to make them adopt another. These two definitions create varying implications that might be negative and counter-productive to the proposed purpose of the legislation, which is to protect freedom of religion.

Another issue is that the present anti-conversion laws focus more on the prohibition of conversion to achieve religious freedom. But the broad language used by the prohibitive legislation might be used by officials to oppress and discriminate against minorities.

The definition of the terms used to identify illegal conversions, that is, force, allurement, inducement, fraud, and others infringe on the religious rights of certain religions. The interpretation of terms like allurement and inducement might include within their ambit the proselytization activities that form an integral part of practice and propagation of religion which is protected as a fundamental right under the Constitution. Such interpretation presents issues that are criticized by scholars and legal luminaries.

Article 25 itself presents another issue associated with these legislations, while the Article guarantees one’s right to profess and propagate religion it also subjects it to certain restrictions. No person shall force their religious beliefs and consequently, no person should be forced to practice any religion against their wishes. The twisted interpretation of this provision presents a challenge when trying to regulate sham conversions while also trying to ensure an individual’s right to choose and propagate their religion.

Conclusion

It is quite apparent that the present anti-conversion laws may pose a threat to the secular fabric of India and the international perception of our society’s intrinsic values and legal system. These legislations are largely motivated by religious dogma and at present, they mostly affect religious minorities negatively. Even though their proposed purpose is to protect the minorities it has a detrimental impact on our society. Through these certain aspects of personal freedom are subject to curtailment and others are encouraged. The presence of such laws really questions our adherence to constitutional values such as secularism. Indian secularism is a unique concept in a way that it has been established by different multicultural groups forever changing its focus to being incredibly flexible and durable. However, the cultural fragmentation that the existence and application of these laws create is a persisting issue.