In this article, Divya Sharma discusses religious conversion and freedom of religion in India.

Introduction

India is always known for its cultural, linguistic and religious diversity. As evident, it is the birthplace of four major religions of the world: Hinduism, Buddhism, Jainism, and Sikhism. In 1950, Constitution through 42nd Amendment Act, 1976 declared India as a secular state which means everyone has a right to practice his or her religion peacefully. In India, there is a Constitutional safeguard for religious conversion as a right to freedom of religion. But the question arises to what extent these religious conversions are protected under freedom of religion? So, the main object of this article is to analyze the scope of freedom of religion guaranteed under a fundamental right and to solve as many as queries in the context of religious conversions.

Right to Freedom of Religion in India

Part III of the Indian Constitution guarantees various fundamental rights. Article 25- 28 provides for the right to freedom of religion which is largely based upon Irish Constitution. Article 25(1) states that “Subject to public order, morality and health and to the other provisions of this part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion”. So it is very much evident from the words of article 25(1) that this right is not restricted to Indian citizens only but also extends to all persons including aliens,[1] individuals exercising their rights individually or through institutions;[2] and whether he belongs to a religious minority or not.[3] Clause(2) provides that nothing in this article shall affect the operation of any existing law or prevent the state from making any law. It talks about state interference in matters related to any economic, financial, political or any other secular activity which is associated with religious practice and any other activity related to social welfare and reform.

Article 26 states that subject to public order, morality and health, religious denominations or any section shall have the right to freedom to run or manage religious affairs. So, both Articles 25 and 26 are not absolute but are subject to certain limitations to maintain public order, morality, and peace in the country. For example, no one can practice sati in the name of freedom of religion.

Article 27 mandates that no person shall be compelled by the state to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of particular religion or religious denominations.

Article 28 states that no religious instruction shall be imparted in the state-funded educational institutions.

Religious Conversion

Meaning

India does not have any state religion nor it patronizes any specific religion. Religion is basically a matter of choice, faith or sets of belief. According to Webster’s Comprehensive Dictionary, religion means a belief binding the spiritual nature of man to a supernatural being as involving a feeling of dependence and responsibility, together with the feelings and practices which naturally flow from such a belief. Everyone should be left free to choose the religion of their choice. For this, Indian Constitution provides the freedom to profess, practice and propagate any religion to all persons. Religious conversion is one of the most heated issues in the society and politics which can be defined as the adoption of any other religion or of a set of beliefs by the exclusion of other i.e. renouncing one religion and adopting another. There are various reasons for which people do convert their religion like:

• Voluntary Conversions i.e. conversions by free choice or because of change of beliefs.
• Forceful Conversions i.e. conversions by coercion, undue influence or inducement.
• Marital Conversions i.e. conversions due to marriage.
• Conversion for convenience.

Right to propagate any religion

The question whether ‘right to convert’ comes under the ambit of ‘right to propagate any religion’ holds fundamental importance to determine the constitutionality of anti-conversion laws. Article 25 talks about the term “propagate” which means to promote or transmit or merely a freedom of expression. At the time of drafting of the Indian Constitution, drafters used the word “conversion” but in the final draft they went with the recommendations made by the Sub-Committee on Minorities (M. Ruthnaswamy) and used ‘propagate’ in place of ‘conversion’ and left the debate open as to whether the right to propagate included conversion. Even today this question cannot be answered that whether the right to propagate any religion includes right to conversion or not. There is no expressed provision for ‘conversion’ in the Indian Constitution but still, there are some whose contention is in the favor that right to conversion is implicit under Article 25 which emerges from freedom of conscience and on the other hand there are some who opposes this.

In Yulitha Hyde and Others v. State of Orissa and Others,[4] The Orissa Dharma swatantrya Adhiniyam, 1968 (the Orissa Freedom of Religion Act) was challenged on the ground that the extended meaning which is given by the Act to the words ‘force, fraud and inducement’ is beyond the scope of Indian Penal Code, 1860 and the Act infringes the fundamental right guaranteed under article 25. Act penalized those conversions which took place due to force, fraud or inducement. Court held the Act unconstitutional and declared it ultra vires. Later, Supreme Court overruled the decision and made the Act constitutional.

In Stainislaus Rev. v. State of M.P,[5] Supreme Court held that the right to propagate one’s religion means the right to communicate a person’s beliefs to another person or to expose the tenets of that faith, but would not include the right to ‘convert’ another person to the former’s faith because the latter person is “equally entitled to freedom of conscience” which words precede the word ‘propagate’.[6] So, nobody has any fundamental right to convert the religion of someone without his free choice. Further, Court held that the word propagate does not give rise to the right to convert.

What are the various actions that can be taken against people forcing such conversions?

At the central level, India does not have any law which provides any sanction in case of forcible conversions. In 1954, an attempt was made to pass the Indian Conversion(regulation and registration bill) but Parliament failed to pass it due to heavy opposition. Later, various attempts were made at the state level. In 1968 Orissa and Madhya Pradesh passed some Acts to prevent forcible conversions by force or inducement. Orissa’s anti-conversion law prescribes the punishment of maximum two years imprisonment and a fine of Rs. 10,000 in case of forced conversion. With this various other states like Tamil Nadu and Gujarat passed similar laws which made forced conversions as a cognizable offense under section 295A and 298 of the Indian Penal Code, 1860. According to these provisions, a person responsible for forceful conversion shall be punished with imprisonment of a term which may extend to three years and with a fine.

What does the Law say about those who Convert their Religion for some Wrongful Gain?

There are people who convert their religion for other trivial reasons which have been seen are polygamy, to get reservation benefits, for gaining admission benefits in some institutions that favor people of a certain religion only, divorce etc. The question is what does the law say about such people? There are some landmark judgments in this regard. In Smt Sarla Mudgal, President Kalyani and others vs. UOI and others,[10] a Hindu husband converted his religion to Islam and solemnized a second marriage as polygamy is permitted in Islam. Supreme Court held that such marriages would be void on the grounds of bigamy under section 17 of the Hindu Marriage Act, 1955 and such person will be held liable under section 494 of the Indian Penal Code, 1860. Also, such conversions to Islam will not be considered as a valid conversion if it is done for the purpose of polygamy. So if a conversion takes place for any wrongful gain then it will not be considered as a valid conversion. The same rationale was given in Lily Thomas, Etc. vs. Union of India & Ors., case. In Faheem Ahmed vs. Maviya @ Luxmi, respondent converted to Islam for getting membership of the library at Jama Masjid. Court held the conversion invalid as it did take place for the wrongful gain only. So, any conversion for any wrongful gain would not be considered as a valid conversion.

Are Anti-Conversion Laws violative of Fundamental Rights?

Till date, there are in all seven states who have managed to pass anti-conversion laws but only Madhya Pradesh, Odisha, Gujarat, Chhattisgarh and Himachal Pradesh are the states in which anti-conversion laws are in force. Recently Jharkhand has also proposed an anti-conversion bill which aims to prohibit forced conversions in which a person who is responsible for forced conversion shall be imprisoned for a term of 4 years and fine of Rs. 100,000. Anti-conversion laws basically came into the picture to stop religious conversions made due to fraud, force, inducement or allurement. But the problem arises in the ambiguous definitions of these terms fraud, force, inducement etc. But Christians had a totally different view in this regard. Christians argued that these laws are basically to prohibit conversions in general. There is a report which highlighted the rise of attacks on Christians in 2016 in the states having anti-conversion laws. This report advocated that these anti-conversion laws are not at all useful because in practice they only obstruct conversions instead of prohibiting forced conversions. Secular forces believe such laws as unconstitutional and violative of human rights but judiciary in a plethora of cases as mentioned above has already held them constitutional.

What is the Legal Procedure for Religion Conversion in India?

Changing one’s religion to another does not govern by any law. Supreme Court has held in the plethora of cases that conversions do not need any particular legal requirements, formalities, religious rituals or ceremonies. In Perumal Nadar (dead) by Legal Representative v. Ponnuswami Nadar (minor)[7], it was held that no formal ceremony of purification or expiration is necessary to effectuate conversion.

Any person can convert his or her religion with good faith. A mere declaration whether oral or in writing does not amount to conversion. Credible evidence of the intention to convert followed by definite overt acts to give effect to that intention is necessary.[8] A bona fide intention accompanied by subsequent conducts unequivocally expressing that intention would be sufficient to reach the conclusion that genuine conversion takes place.

Once conversion of religion has taken place then it has to be notified in Government Gazette so that converted religion can be mentioned in all the legal documents too. In Kailash Sonkar vs. Smt. Maya Devi,[9] Supreme Court adopted the same approach for reconversion. In case if clergy wants to convert his religion, he can do so with the permission of the district magistrate. The absence of any statutory provision creates a legal vacuum which puts the burden on the Registration Officer to take a decision whether conversion took place is genuine or not.

Anybody who is interested in conversion of religion may do so by complying with the personal law of that religion. The various personal laws provide the rituals which need to be performed in a specified manner at the time of conversion.

Conversion to Islam

It is not necessary that a Muslim should be born a Muslim. A person can easily convert to Islam by accepting the unity of God and the prophetic character of Muhammad. Islamic law theory talks about the religious belief i.e. a believer of Islam can adopt the religion of Islam irrespective of the fact that he is not born Muslim. Any person who has attained the age of majority and having a sound mind at the time of conversion may convert to Islam in two ways:

• By declaration: He has to declare publicly that he has renounced his original religion in order to profess Islam. He has to have a belief that there is no god except Allah and Muhammad is the messenger of Allah. He must be a believer of Allah only and that the Holy Quran is the literal word of God. He must accept Islam as his religion.
• Through ceremonies: A person can convert his religion to Islam by performing various ceremonies as prescribed in Islam itself. Firstly, the person needs to go to the mosque where imam asks him to say “Shahada” i.e. the testimony of faith. It should be pronounced like “La ilaha illa Allah, Muhammad rasoolu Allah.” He cannot hear the testimony just like that. He should say this with conviction and by understanding it’s full meaning which is “that there is no true deity except Allah and Muhammad is the true messenger sent by God to humankind”. After he reads Kalema, a Muslim name is given to him which has to be registered in the Imam’s register.

So, these are the two simple ways through which one can renounce his original religion and may convert to Islam. But such conversion should be done without any fraud or any wrongful gain. If the conduct and behavior of the person who is converting his religion go contrary to Islam the presumption of conversion may be rebutted.

Conversion to Hinduism

Hindu Scriptures do not provide any procedure to convert to Hindu from any other religion as Hinduism is regarded as the way of life. The moment where one has made pure intentions to convert to Hinduism, he will be regarded as a Hindu. To become a follower, one can approach Arya Samaj which is a religious organization for any help. An application for the conversion by free will can be made to any Arya Samaj temple along with a document of proof of age and residence signed by the applicant and two other persons as a witness. Also, it provides for a procedure which involves a Vedic purification ceremony of “Shuddhi Karma”. Shuddhi Karma basically involves conducting a “Homam” which can be understood as a Hindu ritual which is done in front of the fire. By this, a certificate of conversion would be issued to the applicant.

Conversion to Christianity

There is no uniform ritual or ceremony which should be performed during the time of conversion to Christianity. Different sects of Christianity believe in different-2 rituals or ceremonies. Any non-Christian person can renounce his original religion in order to adopt the religion of Christianity by taking a vow of repentance from past sins and by having faith in Jesus as their savior and vow to follow his teachings as found in the New Testament. Baptism is the ceremony which is regarded as the universally accepted ceremony for conversion among Christians. A Person has to perform baptism in the name of the father, son and holy spirit.

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Reference

[1]  Ratilal Panachand Gandhi v. State of Bombay, (1954) SCR 1055.

[2] Stainislaus Rev. v. State of M.P., AIR 1975 MP 163 (166).

[3]  Mittal, S.P. v. Union of India, AIR 1983 SC 1.

[4] AIR 1973 Orissa 116.

[5] AIR 1977 SC 908.

[6] Ibid.

[7] AIR 1971 SC 2352.

[8] 235th Law Commission Report on Conversion/ Reconversion to Another Religion.

[9] AIR 1984 SC 600.

[10] (1995) 3 SCC 635.