‘Unity in diversity, which represents the secular nature of our nation, has always been the soul and magnificence of Indian society. A minor deviation from this principle can lead to a detrimental effect. Despite being aware of such repercussions, some state legislatures have still crossed the line by implementing such statutes.
Before discussing any further, it is important to understand the concept of religion in India. In India, religion is not merely a socio-cultural system of practices, beliefs, morals and ideologies, it transcends such traditional definition. India’s idea of religion is not only social and cultural but also political, economic and emotionally distinct from other nations, as time and again it has been proved that religion plays a major role in Indian politics. However. The principle of unity in diversity has been kept intact with the idea of religion in India.
Any conversation regarding religion in open space in India, (rather religion being a subconscious human experience) consequently throws light on the idea of secularism, rather Indian idea of secularism. The Constitution of India says India to be a secular state, which is clearly mentioned in the Preamble of our Constitution. Moreover, the freedom of faith has also been granted as a basic right to Indian people. Article 25-28 convene the idea of secularism. Since, the enactment of the Constitution, the idea of secularism has not been incorporated into the Constitution, but it was subsequently inserted by the 42nd amendment in 1976.
The act of conversion one person from one religion to another is forbidden in India. Nobody can either directly or otherwise convert or try to convert any person by force enticement or any other fraudulent means to another religion. There are eight out of 29 states in India which are Odisha, Madhya Pradesh, Arunachal, Uttar Pradesh, Chhattisgarh, Bihar, Himachal Pradesh and Uttarakhand that have laws regarding conversion from one religion to another. A significant difference in these states laws although they are fairly similar in essence and shape violations of these laws are punishable under a range of punitive sanctions, starting from financial penalties to prison; punishments for marriage from 1 to 3 years in jail and between 5000 to 50,000 INR in fines
Therefore, to summarize the Indian situation on the freedom of religion involves non-interference of the State in the strict sense and the solitary reasonable obstruction is restricted to issue accidentally to religion.
ULTRA
VIRES TO RIGHT TO LIBERTY AND FREEDOM OF CONSCIENCE
In Maneka Gandhi vs Union of India,[1] the court furnished the test of the interplay of fundamental rights and also provided the substantive due process as a ground of challenge. For instance, the freedom of religion acts which earlier would have been tested only on the grounds of violation of freedom of religion, can now also be tested on the basis of the fundamental right to speech and expression and also on the fundamental right to life and personal liberty;[2] because in Joseph Shine vs Union of India,[3] the court observed that:
The constitutional vision seeks the realization of justice viz. social, political and economic; Liberty (of thought expression faith, belief and worship); and fraternity (that assures life of dignity to every individual). These constitutional percepts exist together to facilitate a humane and compassionate society. The individual is the focal point of the Indian Constitution because it is in the realization of the individual rights that the collective well being of the community is determined and achieved. Therefore, human dignity is considered as an integral part of the Constitution. Reflections of dignity are found in the guarantee against arbitrariness (Art. 14); the lamps of freedom (Art. 19); and in the right to life and personal liberty (Art. 21), which constitutes the ‘golden triangle of Indian Constitution.
Therefore, as the right to life and personal liberty include liberty of faith, expression worship etc., the constitutionality of the anti-conversion laws can also be tested on grounds of the right to speech and expression; the fundamental right to life and personal liberty not solely upon Art. 25 of the Constitution.
Firstly, anti-conversion laws violate the freedom guaranteed by the Constitution of India as well as prescribed in the international human rights norms. The language adopted by the legislation goes far beyond the protection of the rights of the individual and in no way appears to be motivated by the desire to protect the freedom of conscience guaranteed by the Constitution.[4] Instead, the danger of discriminatory abuse in their application is very much real and present.[5] The terminology used by this legislation transform it from the purpose to the role of protector of the constitutional rights as well as the fundamental rights to the violators of these very rights..[6]
The Constitution does not provide any definition of the term ‘religion’. However, in Commr., Hindu Religious Endowments vs Sri Lakshmindra Thritha Swaminar of Sri Shirur Mutt[7], it was defined broadly: Religion is a matter of personal faith and belief with individuals.[8] Every person has the right not only to entertain such religious belief and ideas as may approve by his science or judgement but also to exhibit such belief and ideas.[9]
Therefore, Under Article 25(1) a person has two-fold freedom
The freedom of conscience is absolute inner freedom of the people to mould his own relation with God in whatever manner he likes. When this freedom becomes articulate and expressed in outward form it is “to profess and practice religion”. [10]
To professor religion means to declare freely and openly one’s on faith and belief. One has right to practice is belief by practical expression in any manner he or she likes [11]
However,
the freedom of religion acts violates the freedom of conscience guaranteed
under Art. 25 of the Constitution. Section 10 of MP Freedom of Religion Act or
section 4 of HP Freedom of Religion Act provides that any person who wants to
convert his or her religion should submit a declaration 60 days prior to such
conversion in a prescribed Form to the District Magistrate (DM) stating that he
desires to convert his religion on his own free will without any external
intrusion like force coercion allurement or undue influence. The same sections
also provide that the DM, on receiving the information under the sub- section
(1) and (2) shall give acknowledgment of such prior notice in such a manner as
may be prescribed.
Firstly,
the freedom to express not to express those choices to the world have been
implicitly provided within the constitutional right to freedom of religion
under Art. 25.[12]
The requirement of declaration, intimation and permission to change one’s
religion made it a compulsion to declare one’s faith to the State, which
clearly violates the freedom to express or not to express one’s choice of
faith. In this context, H.M. Seervai, has remarked that:[13]
Art 25 provides freedom of religion… a
freedom, which is not limited to the religion in which a person is born.
Freedom of conscience harmonizes with this for its presence in Art. 25(1) so that
the constitution of India has adopted ‘system which allows a free choice of
religion’.
Religion
is something personal to an individual. It is up to that person whether to
express his desire to change his/her religion, but the Act made it a compulsion
to submit declaration for conversion to the D.M. In addition, only upon the
D.M.’s acknowledgment that person can change his/her religion, which clearly
violates this right.
Moreover, such declaration could bring forth certain unwarranted repercussions, like the Himachal Pradesh Court indicated in the undermentioned judgement. In case of issuance of such notice, there will be unwarranted disclosure of the voluntary change of belief by an adult male, which may lead to communal clashes and may even endangered the life or limb of the convertee.[14]
Secondly,
the Constitution of India recognizes the
liberty and autonomy inheres in each individual, which includes the ability to
take decisions on aspects which define one’s personhood and identity.[15]
Therefore, when the liberty of a person is illegally smothered and
strangulated; and his or her choice is throttled by the State or a private
person, then signature of life melts and leaving becomes a subsistence.[16]
That is fundamentally an expression of acrimony which gives a indecent burial
to a individual’s liberty and refuses to
recognize the other’s identity.[17]
The meaning and ambit of liberty have been expanding since the enactment of the constitution. It includes the assertion of choice as its inseparable facet.[18] Matters of belief and faith are at the core of constitutional liberty.[19] The constitution protects the ability of each and every individual to peruse a way of living faith which he or she seeks to adhere.
The Anti- conversion laws presumes that all conversions are illegal and are forced upon individuals who may have attended the age of majority because of the provision of declaration and permission of the D. M. for conversion, even if it is a voluntary one. If the conversion is not forced, a rigmarole of procedures has to be followed before and after conversion, taking the State into confidence that it was an informed and voluntary decision by the individual. It places a huge burden on the individuals to justify the personal decisions taken by them for State approval which is constitutionally repugnant and against a citizen’s right to freely exercise his or her freedom of choice in matters of faith, as the absolute liberty and freedom to choose is intrinsic to human existence.
In
this context, the court in Sony Gerry vs Gerry Douglas held that:[20]
“It needs no special
emphasis to state that attaining the age of majority in an individual’s life
has its own significance. She/he is entitled to make her/his choice. The State
or Courts cannot, as long as the choice remains, assume the role of parens
patriae.”
Therefore,
the state cannot direct any individual, who is converting out of his own free
will, to follow such procedure as mentioned in the MP Freedom of Religion Act.
Additionally
in Safin Jahan vs Asokan K. M. and Ors.,[21]
the court observed that:
It is obligatory to state that expression of choice in accord with law is acceptance of individual identity. Curtailment of that expression and the ultimate action emanating therefrom on the conceptual structuralism of obeisance to the societal will destroy the individualistic entity of a person. The social values and morals have their space but they are not above the constitutionally guaranteed freedom. The said freedom is both a constitutional and a human right. Deprivation of that freedom which is ingrained in choice on the plea of faith is impermissible. Faith of a person is intrinsic to his/her meaningful existence. To have the freedom of faith is essential to his/her autonomy; and it strengthens the core norms of the Constitution. Choosing a faith is the substratum of individuality and sans it, the right of choice becomes a shadow. It has to be remembered that the realization of a right is more important than the conferment of the right.
Such
intervention by the State curtails an individual’s faith and expression of
choice which are fundamental for the fructification of the right, so it is an
indispensable right.
Interference by the State in such matters has a serious chilling effect on the exercise of freedoms of individuals. Others are dissuaded to exercise their liberties for fear of the reprisals which may result from the free exercise of choice by the people. The chilling effect on others has a pernicious tendency to prevent them from asserting their liberty. Public spectacles involving a harsh exercise of State Power prevent the exercise of freedom by others, in the same milieu. Nothing can be as destructive of freedom and liberty as such unwanted interference by State. Fear silences freedom.
THE ANTI-CONVERSION LAWS VIOLATES RIGHT TO PRIVACY
It is a settled law that the right to privacy forms an integral part of Art. 21 of the Constitution of India and an inalienable and inseparable natural right which is inherent to human beings.[23] Any statute abrogating Art. 21 connotes that it also abrogates the right to privacy.
The Anti-conversion laws allow unnecessary intrusion in the lives of the people who have their autonomy breached by the State. However, in Justice K. S. Puttaswamy (Retd.), and Anr. vs Union of India,[24] the court held that:
Privacy is the core of human dignity… Privacy includes at its core the preservation of all personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Personal choices, which governs our way of life, are intrinsic to privacy. While the legitimate expectations of privacy may vary from the intimate zone to the private zone; and from the private to the public zone; it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy is attached to the person since it is an essential facet of the dignity of the human being.
Therefore, the requirement of intimation, declaration and permission for conversion as stated under the abovementioned sections of the anti-conversion laws would directly encroach upon a person’s right to privacy. As stated earlier that the Act intervenes in the individual’s ability to choose faith, such uncalled intrusion by the state also causes the abrogation of the right to privacy in matters of personal right; because an implicit part of this aspect of privacy is the right to choose what personal information of ours released into the public space.[25] The more intimate that information, the more important it is in fostering privacy, dignity, and autonomy that an individual makes the primary decision whether to release the information.[26] The decision to release such personal information should not be made by others, including the state.[27] This aspect of the right to privacy must be respected by all of us, including the state.
It
is incomprehensible that how the issuance of a mere notice by a convertee will
prevent conversions made by “fraud”, “force” or “allurement”.[28]
In fact, this may open a ‘Pandora’s box’. Moreover, once notice is issued. This
may lead to conflicts between rival religious outfits and groups.[29]
VIOLATES
BASIC STRUCTURE
The
principle of equality and secularism as stated in Kesavananda Bharati vs State
of Kerala[30]
may be understood as an element of the basic structure. The violation of which
meant violation of basic structure; thus, being violative of the Constitution.
Firstly, for legislation to be in conscience with the right to equality, it should permit reasonable classification which is founded on intelligible differentia and the differential must have a rational relation to the objects sought to be achieved.[31] Moreover, the legislation should not allow any kind of arbitrariness.[32]
Sec. 2(c) of the MP Freedom of Religion Act states that:
“Renouncing one
religion and adopting another but the return of any person already converted to
the fold of his parental religion shall not be deemed conversion
Explanation-
the parental religion of the person converted shall mean the religion to which
his father belonged at the time of birth of such person.”
The act of converting from one religion to another is primarily the consequence of one’s conviction that the religion into which he was born into has not measured up to his expectations- spiritual or rational.[33] If the act of converting from one religion to another is done due to one’s conviction in that religion not being upto the expectations, then converting back to the parental religion or re-conversion are also on the same grounds.
Moreover, in the case of Evangelical Fellowship vs State of Himachal Pradesh[34], hon’ble High Court held that the court fails to understand the rational why if a person is to revert back to his original religion, no notice is required to be produced. It was contended before the court that since the individual is born in his religion and knows his religion well, therefore, it is thought that while reverting back to his original religion, no notice is to be issued.[35] However, the court held that the justification of this different approach regarding reverting back to parental religion “does not satisfy the parameters of Article 14 of the Constitution of India.”
The Himachal Pradesh High Court sighted two situations, which bring forth the unreasonableness of the impugned act and why it is violative of the principle of equality. The situations are:
“Supposing
a person born in religion A converts to religion B at the age of 20 and wants
to convert back to religion A at the age of 50, he has spent many more years,
that too mature years, being a follower of religion B. Why should he not be
required to give notice?
Another question which is troubling us is if a person born in religion A, converts to religion B, then converts to religion C and then to religion D. If he converts back to religion B or C, he is required to give notice, but if he converts back to religion A, then no notice is required.”
In the case of the second scenario, the parental religion is ‘A’, so according to the impugned act conversion to any religion other than the parental religion, shall attracts the wrath of the act. Therefore, the MP Freedom of Religion Act treats conversion and re-conversion differently. It criminalizes conversion but not re-conversion to the ‘parental religion’. Such provisions and interpretation of conversion or re-conversion is “totally irrational and violative of Art. 14 of the Constitution of India.”[36]
Secondly, Manifest arbitrariness, is therefore something which must be done by the legislature capriciously, irrationally and/or without adequate determining principle.[37]Moreover, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary.[38] Therefore, if a law is irrational or arbitrary, it will fall foul of Article 14.[39]
The present anti-conversion laws or against the very nature of the Constitution on the grounds that many of their provisions are manifestly arbitrary, being excessive, disproportionate, irrational, and without adequate determining principles. For instance, provisions relating to the definitions excessively impinge on the rights of freedom of conscience and liberty; the requirement of public disclosure and police inquiry; and the requirement of DM’s permission to convert one’s own religion signifies unnecessary encroachment on fundamental rights including Article 14.
Lastly, according to Oxford Dictionary, secularism is the moral principle or idea, which should be based on the grounds of the well- being of mankind, in the present life to the exclusion from all consideration drawn in the belief of God. He deals with the individual as a citizen irrespective of his or her religion. Constitutionally, it is not connected with any particular religion. Not does it seek to promote interference with religion and guarantees individual freedom in this regard.
The modern idea of secularism is based upon a twofold
understanding. First, the state must be equidistant from all religions and it
should adopt a neutral attitude with respect to any religion. Secondly, the
state must not have any relation with any religion i.e., state must not have a
religion of its own.[40]
In the 235th report of the Law Commission
of India, it was stated that:[41]
Conversion from one religion to another is primarily the consequence of once’s own conviction that the religion in which he was born has not measured up to his expectations – spiritual or irrational. The conversion may also be the consequence of the believe that another religion to reach you would like to embrace would better take care of spiritual wellbeing or otherwise accomplishes legitimate aspirations. At times it may be hard to find any rational reason for conversion to another religion. The reason for or propriety of conversion cannot be judged from the standards of rationality or reasonableness.
Nevertheless, the anti-conversion laws make the government presume the role of protecting the religious identities of the people and signifies intolerance towards the religious choices of the people. However, in S.R. Bommai vs Union of India,[42] the hon’ble court observed:
“While the citizens of
this country are free to profess, practice and propagate such religion, faith
or belief as they choose, so far as the state is concerned i.e., from the point
of view of the State, the religion, faith or belief of a person is immaterial.
To it, all are equal and all entitled to be treated equally.”
Therefore,
the concept of Secularism enshrined in the Indian Constitution is not a
negative concept of religious tolerance, but a positive concept which envisages
that the State should have equal respect for all religions and refrain from
discriminating between religions.
Additionally,
in S.R. Bommai vs Union of India,[43]it
was also observed that
The concept of secularism, mentioned in the Constitution of India, is not anti-God, and it is also sometimes believed to be a stay in free society. Matters which are purely religious, left personal to the individual and the circular part is taken charge by the state on the grounds of public interest order, general welfare, etc. The state guarantees individual and corporate religious freedom; and dealt with an individual as citizen, irrespective of his faith and religious belief; and does not promote any particular religion, nor prefers one against another. The concept of secular state, is therefore, essential for successful working on the democratic form of government.
However, the Freedom of Religion Acts intervenes in the religious matter i.e., conversion. As given in the 235th law report of the Law Commission of India, conversion is done due to a change in one’s conviction in religion; and cannot be judged by the standard of rationality and reasonableness.
CONCLUSION
The Anti-conversion laws are a threat to Indian democracy. These anti-conversion laws are a hindrance to the practice of secularism as well as a fatal strike on the concept of freedom of practising any religion, which is a fundamental right under article 25 of the Indian Constitution.
Smooth and effective working of any democratic administration always consists of a balance between freedom and the interests of the society. After thorough analysis, it can be said that Article 25 of the Constitution is inherent in the capacity to change faith.
In the conclusion, it can be construed that the right to freedom of religion would be delusional if one is not permitted to convert his or her religion, without no intimation or allurement. Moreover, the right conversion is verified as a morally justified practice. If a person freely converts from one religion to another religion, the state must protect him, ensuring that his new loyal identity does not create disturbance in society.
*The Author is a 2nd Year B.A LL.B Student at Department of Law, Calcutta University.
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.
Readers may submit his/her blog for publication. Click Here or Scan the QR Code to submit your Manuscript.
[1] Maneka Gandhi vs Union
of India, 1978 SCR (2) 621
Saurabh Kumar
Share post:
Author- Souvik Shaw*
INTRODUCTION
‘Unity in diversity, which represents the secular nature of our nation, has always been the soul and magnificence of Indian society. A minor deviation from this principle can lead to a detrimental effect. Despite being aware of such repercussions, some state legislatures have still crossed the line by implementing such statutes.
Before discussing any further, it is important to understand the concept of religion in India. In India, religion is not merely a socio-cultural system of practices, beliefs, morals and ideologies, it transcends such traditional definition. India’s idea of religion is not only social and cultural but also political, economic and emotionally distinct from other nations, as time and again it has been proved that religion plays a major role in Indian politics. However. The principle of unity in diversity has been kept intact with the idea of religion in India.
Any conversation regarding religion in open space in India, (rather religion being a subconscious human experience) consequently throws light on the idea of secularism, rather Indian idea of secularism. The Constitution of India says India to be a secular state, which is clearly mentioned in the Preamble of our Constitution. Moreover, the freedom of faith has also been granted as a basic right to Indian people. Article 25-28 convene the idea of secularism. Since, the enactment of the Constitution, the idea of secularism has not been incorporated into the Constitution, but it was subsequently inserted by the 42nd amendment in 1976.
The act of conversion one person from one religion to another is forbidden in India. Nobody can either directly or otherwise convert or try to convert any person by force enticement or any other fraudulent means to another religion. There are eight out of 29 states in India which are Odisha, Madhya Pradesh, Arunachal, Uttar Pradesh, Chhattisgarh, Bihar, Himachal Pradesh and Uttarakhand that have laws regarding conversion from one religion to another. A significant difference in these states laws although they are fairly similar in essence and shape violations of these laws are punishable under a range of punitive sanctions, starting from financial penalties to prison; punishments for marriage from 1 to 3 years in jail and between 5000 to 50,000 INR in fines
Therefore, to summarize the Indian situation on the freedom of religion involves non-interference of the State in the strict sense and the solitary reasonable obstruction is restricted to issue accidentally to religion.
ULTRA VIRES TO RIGHT TO LIBERTY AND FREEDOM OF CONSCIENCE
In Maneka Gandhi vs Union of India,[1] the court furnished the test of the interplay of fundamental rights and also provided the substantive due process as a ground of challenge. For instance, the freedom of religion acts which earlier would have been tested only on the grounds of violation of freedom of religion, can now also be tested on the basis of the fundamental right to speech and expression and also on the fundamental right to life and personal liberty;[2] because in Joseph Shine vs Union of India,[3] the court observed that:
The constitutional vision seeks the realization of justice viz. social, political and economic; Liberty (of thought expression faith, belief and worship); and fraternity (that assures life of dignity to every individual). These constitutional percepts exist together to facilitate a humane and compassionate society. The individual is the focal point of the Indian Constitution because it is in the realization of the individual rights that the collective well being of the community is determined and achieved. Therefore, human dignity is considered as an integral part of the Constitution. Reflections of dignity are found in the guarantee against arbitrariness (Art. 14); the lamps of freedom (Art. 19); and in the right to life and personal liberty (Art. 21), which constitutes the ‘golden triangle of Indian Constitution.
Therefore, as the right to life and personal liberty include liberty of faith, expression worship etc., the constitutionality of the anti-conversion laws can also be tested on grounds of the right to speech and expression; the fundamental right to life and personal liberty not solely upon Art. 25 of the Constitution.
Firstly, anti-conversion laws violate the freedom guaranteed by the Constitution of India as well as prescribed in the international human rights norms. The language adopted by the legislation goes far beyond the protection of the rights of the individual and in no way appears to be motivated by the desire to protect the freedom of conscience guaranteed by the Constitution.[4] Instead, the danger of discriminatory abuse in their application is very much real and present.[5] The terminology used by this legislation transform it from the purpose to the role of protector of the constitutional rights as well as the fundamental rights to the violators of these very rights..[6]
The Constitution does not provide any definition of the term ‘religion’. However, in Commr., Hindu Religious Endowments vs Sri Lakshmindra Thritha Swaminar of Sri Shirur Mutt[7], it was defined broadly: Religion is a matter of personal faith and belief with individuals.[8] Every person has the right not only to entertain such religious belief and ideas as may approve by his science or judgement but also to exhibit such belief and ideas.[9]
Therefore, Under Article 25(1) a person has two-fold freedom
However, the freedom of religion acts violates the freedom of conscience guaranteed under Art. 25 of the Constitution. Section 10 of MP Freedom of Religion Act or section 4 of HP Freedom of Religion Act provides that any person who wants to convert his or her religion should submit a declaration 60 days prior to such conversion in a prescribed Form to the District Magistrate (DM) stating that he desires to convert his religion on his own free will without any external intrusion like force coercion allurement or undue influence. The same sections also provide that the DM, on receiving the information under the sub- section (1) and (2) shall give acknowledgment of such prior notice in such a manner as may be prescribed.
Firstly, the freedom to express not to express those choices to the world have been implicitly provided within the constitutional right to freedom of religion under Art. 25.[12] The requirement of declaration, intimation and permission to change one’s religion made it a compulsion to declare one’s faith to the State, which clearly violates the freedom to express or not to express one’s choice of faith. In this context, H.M. Seervai, has remarked that:[13]
Art 25 provides freedom of religion… a freedom, which is not limited to the religion in which a person is born. Freedom of conscience harmonizes with this for its presence in Art. 25(1) so that the constitution of India has adopted ‘system which allows a free choice of religion’.
Religion is something personal to an individual. It is up to that person whether to express his desire to change his/her religion, but the Act made it a compulsion to submit declaration for conversion to the D.M. In addition, only upon the D.M.’s acknowledgment that person can change his/her religion, which clearly violates this right.
Moreover, such declaration could bring forth certain unwarranted repercussions, like the Himachal Pradesh Court indicated in the undermentioned judgement. In case of issuance of such notice, there will be unwarranted disclosure of the voluntary change of belief by an adult male, which may lead to communal clashes and may even endangered the life or limb of the convertee.[14]
Secondly, the Constitution of India recognizes the liberty and autonomy inheres in each individual, which includes the ability to take decisions on aspects which define one’s personhood and identity.[15] Therefore, when the liberty of a person is illegally smothered and strangulated; and his or her choice is throttled by the State or a private person, then signature of life melts and leaving becomes a subsistence.[16] That is fundamentally an expression of acrimony which gives a indecent burial to a individual’s liberty and refuses to recognize the other’s identity.[17]
The meaning and ambit of liberty have been expanding since the enactment of the constitution. It includes the assertion of choice as its inseparable facet.[18] Matters of belief and faith are at the core of constitutional liberty.[19] The constitution protects the ability of each and every individual to peruse a way of living faith which he or she seeks to adhere.
The Anti- conversion laws presumes that all conversions are illegal and are forced upon individuals who may have attended the age of majority because of the provision of declaration and permission of the D. M. for conversion, even if it is a voluntary one. If the conversion is not forced, a rigmarole of procedures has to be followed before and after conversion, taking the State into confidence that it was an informed and voluntary decision by the individual. It places a huge burden on the individuals to justify the personal decisions taken by them for State approval which is constitutionally repugnant and against a citizen’s right to freely exercise his or her freedom of choice in matters of faith, as the absolute liberty and freedom to choose is intrinsic to human existence.
In this context, the court in Sony Gerry vs Gerry Douglas held that:[20]
“It needs no special emphasis to state that attaining the age of majority in an individual’s life has its own significance. She/he is entitled to make her/his choice. The State or Courts cannot, as long as the choice remains, assume the role of parens patriae.”
Therefore, the state cannot direct any individual, who is converting out of his own free will, to follow such procedure as mentioned in the MP Freedom of Religion Act.
Additionally in Safin Jahan vs Asokan K. M. and Ors.,[21] the court observed that:
It is obligatory to state that expression of choice in accord with law is acceptance of individual identity. Curtailment of that expression and the ultimate action emanating therefrom on the conceptual structuralism of obeisance to the societal will destroy the individualistic entity of a person. The social values and morals have their space but they are not above the constitutionally guaranteed freedom. The said freedom is both a constitutional and a human right. Deprivation of that freedom which is ingrained in choice on the plea of faith is impermissible. Faith of a person is intrinsic to his/her meaningful existence. To have the freedom of faith is essential to his/her autonomy; and it strengthens the core norms of the Constitution. Choosing a faith is the substratum of individuality and sans it, the right of choice becomes a shadow. It has to be remembered that the realization of a right is more important than the conferment of the right.
Such intervention by the State curtails an individual’s faith and expression of choice which are fundamental for the fructification of the right, so it is an indispensable right.
Moreover, it was also held that:[22]
Interference by the State in such matters has a serious chilling effect on the exercise of freedoms of individuals. Others are dissuaded to exercise their liberties for fear of the reprisals which may result from the free exercise of choice by the people. The chilling effect on others has a pernicious tendency to prevent them from asserting their liberty. Public spectacles involving a harsh exercise of State Power prevent the exercise of freedom by others, in the same milieu. Nothing can be as destructive of freedom and liberty as such unwanted interference by State. Fear silences freedom.
THE ANTI-CONVERSION LAWS VIOLATES RIGHT TO PRIVACY
It is a settled law that the right to privacy forms an integral part of Art. 21 of the Constitution of India and an inalienable and inseparable natural right which is inherent to human beings.[23] Any statute abrogating Art. 21 connotes that it also abrogates the right to privacy.
The Anti-conversion laws allow unnecessary intrusion in the lives of the people who have their autonomy breached by the State. However, in Justice K. S. Puttaswamy (Retd.), and Anr. vs Union of India,[24] the court held that:
Privacy is the core of human dignity… Privacy includes at its core the preservation of all personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Personal choices, which governs our way of life, are intrinsic to privacy. While the legitimate expectations of privacy may vary from the intimate zone to the private zone; and from the private to the public zone; it is important to underscore that privacy is not lost or surrendered merely because the individual is in a public place. Privacy is attached to the person since it is an essential facet of the dignity of the human being.
Therefore, the requirement of intimation, declaration and permission for conversion as stated under the abovementioned sections of the anti-conversion laws would directly encroach upon a person’s right to privacy. As stated earlier that the Act intervenes in the individual’s ability to choose faith, such uncalled intrusion by the state also causes the abrogation of the right to privacy in matters of personal right; because an implicit part of this aspect of privacy is the right to choose what personal information of ours released into the public space.[25] The more intimate that information, the more important it is in fostering privacy, dignity, and autonomy that an individual makes the primary decision whether to release the information.[26] The decision to release such personal information should not be made by others, including the state.[27] This aspect of the right to privacy must be respected by all of us, including the state.
It is incomprehensible that how the issuance of a mere notice by a convertee will prevent conversions made by “fraud”, “force” or “allurement”.[28] In fact, this may open a ‘Pandora’s box’. Moreover, once notice is issued. This may lead to conflicts between rival religious outfits and groups.[29]
VIOLATES BASIC STRUCTURE
The principle of equality and secularism as stated in Kesavananda Bharati vs State of Kerala[30] may be understood as an element of the basic structure. The violation of which meant violation of basic structure; thus, being violative of the Constitution.
Firstly, for legislation to be in conscience with the right to equality, it should permit reasonable classification which is founded on intelligible differentia and the differential must have a rational relation to the objects sought to be achieved.[31] Moreover, the legislation should not allow any kind of arbitrariness.[32]
Sec. 2(c) of the MP Freedom of Religion Act states that:
“Renouncing one religion and adopting another but the return of any person already converted to the fold of his parental religion shall not be deemed conversion
Explanation- the parental religion of the person converted shall mean the religion to which his father belonged at the time of birth of such person.”
The act of converting from one religion to another is primarily the consequence of one’s conviction that the religion into which he was born into has not measured up to his expectations- spiritual or rational.[33] If the act of converting from one religion to another is done due to one’s conviction in that religion not being upto the expectations, then converting back to the parental religion or re-conversion are also on the same grounds.
Moreover, in the case of Evangelical Fellowship vs State of Himachal Pradesh[34], hon’ble High Court held that the court fails to understand the rational why if a person is to revert back to his original religion, no notice is required to be produced. It was contended before the court that since the individual is born in his religion and knows his religion well, therefore, it is thought that while reverting back to his original religion, no notice is to be issued.[35] However, the court held that the justification of this different approach regarding reverting back to parental religion “does not satisfy the parameters of Article 14 of the Constitution of India.”
The Himachal Pradesh High Court sighted two situations, which bring forth the unreasonableness of the impugned act and why it is violative of the principle of equality. The situations are:
“Supposing a person born in religion A converts to religion B at the age of 20 and wants to convert back to religion A at the age of 50, he has spent many more years, that too mature years, being a follower of religion B. Why should he not be required to give notice?
Another question which is troubling us is if a person born in religion A, converts to religion B, then converts to religion C and then to religion D. If he converts back to religion B or C, he is required to give notice, but if he converts back to religion A, then no notice is required.”
In the case of the second scenario, the parental religion is ‘A’, so according to the impugned act conversion to any religion other than the parental religion, shall attracts the wrath of the act. Therefore, the MP Freedom of Religion Act treats conversion and re-conversion differently. It criminalizes conversion but not re-conversion to the ‘parental religion’. Such provisions and interpretation of conversion or re-conversion is “totally irrational and violative of Art. 14 of the Constitution of India.”[36]
Secondly, Manifest arbitrariness, is therefore something which must be done by the legislature capriciously, irrationally and/or without adequate determining principle.[37]Moreover, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary.[38] Therefore, if a law is irrational or arbitrary, it will fall foul of Article 14.[39]
The present anti-conversion laws or against the very nature of the Constitution on the grounds that many of their provisions are manifestly arbitrary, being excessive, disproportionate, irrational, and without adequate determining principles. For instance, provisions relating to the definitions excessively impinge on the rights of freedom of conscience and liberty; the requirement of public disclosure and police inquiry; and the requirement of DM’s permission to convert one’s own religion signifies unnecessary encroachment on fundamental rights including Article 14.
Lastly, according to Oxford Dictionary, secularism is the moral principle or idea, which should be based on the grounds of the well- being of mankind, in the present life to the exclusion from all consideration drawn in the belief of God. He deals with the individual as a citizen irrespective of his or her religion. Constitutionally, it is not connected with any particular religion. Not does it seek to promote interference with religion and guarantees individual freedom in this regard.
The modern idea of secularism is based upon a twofold understanding. First, the state must be equidistant from all religions and it should adopt a neutral attitude with respect to any religion. Secondly, the state must not have any relation with any religion i.e., state must not have a religion of its own.[40]
In the 235th report of the Law Commission of India, it was stated that:[41]
Conversion from one religion to another is primarily the consequence of once’s own conviction that the religion in which he was born has not measured up to his expectations – spiritual or irrational. The conversion may also be the consequence of the believe that another religion to reach you would like to embrace would better take care of spiritual wellbeing or otherwise accomplishes legitimate aspirations. At times it may be hard to find any rational reason for conversion to another religion. The reason for or propriety of conversion cannot be judged from the standards of rationality or reasonableness.
Nevertheless, the anti-conversion laws make the government presume the role of protecting the religious identities of the people and signifies intolerance towards the religious choices of the people. However, in S.R. Bommai vs Union of India,[42] the hon’ble court observed:
“While the citizens of this country are free to profess, practice and propagate such religion, faith or belief as they choose, so far as the state is concerned i.e., from the point of view of the State, the religion, faith or belief of a person is immaterial. To it, all are equal and all entitled to be treated equally.”
Therefore, the concept of Secularism enshrined in the Indian Constitution is not a negative concept of religious tolerance, but a positive concept which envisages that the State should have equal respect for all religions and refrain from discriminating between religions.
Additionally, in S.R. Bommai vs Union of India,[43]it was also observed that
The concept of secularism, mentioned in the Constitution of India, is not anti-God, and it is also sometimes believed to be a stay in free society. Matters which are purely religious, left personal to the individual and the circular part is taken charge by the state on the grounds of public interest order, general welfare, etc. The state guarantees individual and corporate religious freedom; and dealt with an individual as citizen, irrespective of his faith and religious belief; and does not promote any particular religion, nor prefers one against another. The concept of secular state, is therefore, essential for successful working on the democratic form of government.
However, the Freedom of Religion Acts intervenes in the religious matter i.e., conversion. As given in the 235th law report of the Law Commission of India, conversion is done due to a change in one’s conviction in religion; and cannot be judged by the standard of rationality and reasonableness.
CONCLUSION
The Anti-conversion laws are a threat to Indian democracy. These anti-conversion laws are a hindrance to the practice of secularism as well as a fatal strike on the concept of freedom of practising any religion, which is a fundamental right under article 25 of the Indian Constitution.
Smooth and effective working of any democratic administration always consists of a balance between freedom and the interests of the society. After thorough analysis, it can be said that Article 25 of the Constitution is inherent in the capacity to change faith.
In the conclusion, it can be construed that the right to freedom of religion would be delusional if one is not permitted to convert his or her religion, without no intimation or allurement. Moreover, the right conversion is verified as a morally justified practice. If a person freely converts from one religion to another religion, the state must protect him, ensuring that his new loyal identity does not create disturbance in society.
*The Author is a 2nd Year B.A LL.B Student at Department of Law, Calcutta University.
Disclaimer: The views, thoughts, and opinions expressed in the text belong solely to the author and not to the Jurisedge Academy.
Readers may submit his/her blog for publication. Click Here or Scan the QR Code to submit your Manuscript.
[1] Maneka Gandhi vs Union of India, 1978 SCR (2) 621
[2] https://cjp.org.in/love-jihad-the-ordinance-and-constitutionality/#_ftn11
[3] (2019) 3 SCC 39
[4] Anti-conversion laws: Challenges to secularism and fundamental rights- SAHRDC published in Economic and Political Weekly January, 12 2008
[5] Id.
[6] Id.
[7] AIR 1954 SC 282
[8] Id.
[9] J.N. Pandey, The Constitutional Law of India 171, Central Law Agency 2014
[10] Id.
[11] Id.
[12] Supra note 4 at 11
[13] H.M. Seervai, Constitutional Law of India 913-916
[14] Evangelical Fellowship of India v. State of H.P., 2012 SCC OnLine HP 5554
[15] Shafin Jahan v. Asokan K. M. and Ors AIR 2018 SC 1933
[16] Id.
[17] Id.
[18] Shakti Vahini vs Union of India, (2018) 7 SCC 192
[19] Supra note 18 at 14
[20] (2018) 2 SCC 197
[21] Supra note 18 at 14
[22] Id.
[23] Supra note 17 at 14
[24] Id.
[25] Supra note 17 at 14
[26] Id.
[27] Id.
[28] Supra note 17 at 14
[29] Id.
[30] Kesavananda Bharati vs State of Kerala, (1973) 4 SCC 225
[31] H.M. SEERVAI, CONSTITUTIONAL LAW OF INDIA 2695 (4th ed. 2008).
[32] Id.
[33] 235th Report of Law Commission of India
[34] Supra note 17 at 14
[35] Id.
[36] Id.
[37] ShayaraBano v. Union of India, (2017) 9 SCC 1
[38] Id.
[39] 90E.P. Royappa v. State of T.N., (1974) 4 SCC 3; Bhagat Ram v. State of H.P., (1983) 2 SCC 442
[40] Siddharth Badkul and Urvashi Yadav , A Socio-Legal Analysis of Religion, Secularism and the Anti Conversion Laws, 35, 5.1 NULJ, 1 ,1, 2015
[41] Supra note 37 at 18
[42] Id.
[43] (1994) 3 SCC 1
Share this:
Related