Author: Kaustubh Kumar, I year of B.A.,LL.B(Hons), from National University of Study and Research in Law, Ranchi
The recent implementation of a law in the form of an ordinance against ‘forceful religious conversion’ in the state of Uttar Pradesh caused a huge reverberation in the stagnant political system of India. As under the new law, it is stated that anyone who wants to convert into another religion has to give a written application to the District Magistrate at least two months prior. As well as, under the new law, the individual a person who is going to convert his/her religion would have the responsibility to prove that conversion is not taking place forcefully or fraudulently.
Violation of this provision would reward a punishment from 6 months to 3 years and a fine of not less than Rs 10,000.
In its report to the chief minister, The Uttar Pradesh State Law Commission, a year back, had advanced such a law to be implemented in the state referring to increasing incidents of forceful religious conversions or conversions through illicit and fraudulent means to nab the offenders.
According to the act, one who is found liable for conversion committed through “misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means” in violation of the legislation would get a punishment of one to five years with a base fine of Rs 15,000.
In just one month of the implementation of this law, reports suggest that there are nearly 14 cases registered against 51 individuals. Though the law got challenged in the Supreme Court, the number of cases under this act is increasing day by day, which clearly shows that the state of Uttar Pradesh was in immediate need of such a concrete law that was fulfilled by their state government.
LOVE JIHAD AND ITS RELATION WITH ANTI CONVERSION LAW
A word that surfaces frequently in the political system of India is Love Jihad. It is a term referred to as a campaign in which men of the Muslim community forcefully convert girls of other religions showing their love and affection towards them. Chairperson of the National Commission for Women, Rekha Sharma, has stated that Kerala has 'rampant' love jihad, and they were coaxing Hindu and Christian women and forcefully converting them in Kerala.
This word found its origin in British India in 1924, a Muslim administrator in Kanpur was blamed for "abducting and seducing" a Hindu girl and forcefully converting her. Parents of the girl asked for the "recovery" of the girl from the house of the bureaucrat. This was even debated in the Parliament during that time. After this, the term again surfaced and came to national attention in 2009, with the conversion of Hindus and Christian ladies in Kerala and Karnataka by Muslims. The cases subsequently emerged throughout India and in other countries, such as Myanmar, Pakistan, and the United Kingdom, like the #MeToo Campaign that rampaged the social media in 2017.
In December 2009, the Kerala High Court in Shahan Sha A vs the State of Kerala stated that there was a “concerted effort” to coax young ladies of different religions and then force them to convert to Islam and marry Muslim men. The role of the Popular Front of India (PFI) also came out in the case. The learned justice noticed that there had been 3,000-4,000 such changes over the most recent four years, and it was clear there was a continuous exertion to forcefully convert young ladies of a different religion with the 'endowments of some outfits'.
Though the ordinance nowhere mentions ‘love jihad’ and even no religion is specified in it, its opponents are still calling it ‘anti-religious’ to a specific religious minority. This law applies equally to each individual residing in the state of Uttar Pradesh. The fact that the Ordinance is being called anti-to a specific religious minority only shows that the persons belonging to the majority faiths are converting at a greater pace, especially women, than the other way round.
INDIAN COURTS ON CONVERSION LAWS
In the pre-independence era, anti-conversion statutes were enforced by different princely states as well. Raigarh State Conversion Act, 1936, The Patna Freedom of Religion Act, 1942, Udaipur State Anti-Conversion Act, 1946, are a few examples of the acts enforced to keep a check on the mass conversions taking place at that time to Christianity. But the British Raj never attempted or given due consideration to such laws to be implemented in India as a whole.
After the Independence, even a few times the central government tried to put forth legislation against conversion such as The Indian Conversion (Regulation and Registration) Bill, 1954, Backward Communities Religious Protection Act, 1960, The Freedom of Religion Bill, 1979, but they never got passed and subsequently enforced. Similarly, the states played a crucial role and implemented their anti-conversion laws to face the mass forced conversion in the states.
The first and foremost case dealt with by the courts of the nation was against one of such acts implemented by the State of Orissa. The law was struck down by the division bench of R.N. Mishra and K.B. Panda, JJ stating that Entry 97 of the List I, contains the power to enact such legislation instead of any entry written in List II and List III.
Clause 1 of Article 25 guarantees the propagation of religion, which is also an inherent part of the Christian religion. The third thing that the court put up is that the definition of ‘inducement’ is vague and wide enough in the act to be used in many proselytizing activities.
The second case was faced by the M.P. High Court regarding this subject. In which Madhya Pradesh Dharma Swathantra Adhiniyam was challenged. However, the act was implemented on the basis of the report of a fact-finding commission headed by a former Chief Justice, J. Neyogi. In this case, the Hon'ble High Court while interpreting the freedom of religion stated “the freedom of religion is not a monopoly of a single individual, but the freedom is to be enjoyed by a person commensurate with similar freedom to all other individuals” and upheld the Act. The court disagreed with the views of Orissa High Court and interpreted the act based on Entry1 of List II.
Further, in 1977, the M.P. Dharma Swathantra Adhiniyam was again challenged on the altar of the apex court by a Christian priest and after duly considering them both the courts upheld both legislations. The Constitutional Bench headed by CJI A. N. Ray quoted while delivering the verdict that “Article 25(1) guarantees ‘freedom of conscience’ to every citizen, and not merely to the followers of one particular religion, and that, in turn, postulates that there is no fundamental right to convert another person to one’s religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the ‘freedom of conscience’ guaranteed to all the citizens of the country alike.” Moreover, on the question of legislative competence, the court said that forced conversions disturb the public order and the state governments are competent enough under the realms of the constitution to enforce such legislation.
If the same framework were followed by the apex court while dealing with the law enforced by the state government of Uttar Pradesh, it might uphold the validity of the law.
LANDMARK CASES RELAING TO CONVERSION LAWS
One of the famous cases related to forced conversion is Shafin Jahan vs. K. M. Ashokan. In this case, Akhila, a girl converted to Islam and started practicing it. After a while, she married Shafin Jehan who was found to be associated with an organization closely related to terrorist organizations. A writ of habeas corpus was filed in the Kerala High Court by the family of Akhila aka Hadiya alleging that their daughter was brainwashed and became a victim of Love Jihad, and she was also forced to marry without her will. After duly considering the matter, the High Court set aside the marriage of Hadiya under Article 226 and ordered Hadiya to stay with her parents. The High Court also ordered the National Investigation Agency to go through and investigate the background of the Hadiya’s in-laws.
The verdict later got challenged in the Hon'ble Supreme Court. The Supreme Court setting aside the judgment, held that converting to a religion of his/her choice is the will of a person, and wedding a person of his/her own choice cannot be questioned and decided by society itself as it’s a part of one’s freedom which is protected by the Constitution of India.
In Ratilal Panachand Gandhi Vs. State of Bombay, the apex Court stated that each citizen of India has a right fundamentally provided to him by the constitution to choose such religious beliefs that may be trusted by his or her judgment or ‘freedom’ of conscience and religion.
In Lily Thomas v. Union of India, the apex Court of the land elucidated that the constitution gives each individual a fundamental right to practise the religious beliefs that he/she chooses by himself/herself, and the authority to decide this shall not contradict with the personal liberty, freedom, and religious rights of others.
In a recent decision, the Allahabad High Court also recognized that conversions of religion solely for marriage alone cannot be upheld. The court said, duly dismissing a plea made by a couple seeking protection for a quarter of a year after their marriage, declining to intercede in the issue. However, it got overruled by a subsequent judgment of the Allahabad High Court. But this judgment was also taken as a base for enforcement of the act by the State Government of Uttar Pradesh.
CASES OF FORCED CONVERSION IN INDIA
In 2019, the Vice Chairman of the National Commission for Minorities written a letter to the office of the Home Minister of India stating that there is an ‘organized’ religious conversion going on using the victims for terror activities in Kerala. He further quoted in the letter that the sufferers, mostly belonging to the Christian community, became prey to Islamic radicals and are being targeted. He also stated about a father of the complainant from Kozhikode in Kerala, who has affirmed that endeavors are being made to strongly change his girl from Christianity to Islam by extorting him.
In 2019, a case of an 18-year-old woman from the Barmer region of Rajasthan received attention where she got extorted as well as compelled to acknowledge Islam; after that, she was taken to Jammu and Kashmir’s Kupwara district. Barmer’s Superintendent of Police, Rashi Dogra stated in the context of the case that officials have been sent to Jammu and Kashmir to inquire about the issue. Another recent issue of December 24, 2020, in Delhi got highlighted where a woman accused her husband and his family of stating that ‘…His family constrained me to change my religion to Islam. I had to wear a burqa and offer namaz involuntarily.'His father tried to sexually harass me...’ The lady also said that his husband did not reveal his religion at first and also stated that he has no family.
In the context of Uttar Pradesh, recently, in September 2020, a Special Investigation Team was constituted to investigate 14 cases of alleged forced conversion in Kanpur. The report of the team was submitted to the IG Mohit Agarwal of Lucknow Range who in an interview with a national news channel stated that 11 cases out of these 14 cases were found in contradiction to the law of the land, and the cases were registered against the offenders.
In September 2020, a 23-year-old lady was beheaded and slaughtered brutally for refusing to convert to Islam by her husband in the Sonbhadra district of Uttar Pradesh. Another case in Meerut where a divorcee-women and her daughter were murdered and buried in the house by the accused during the initial phase of the lockdown when they refused to convert to Islam. The accused, Shamshad, met her on Facebook with a fake ID by the name of Amit Gurjar. After the lady started liking him, whom she knew as Amit, he called her to Meerut under the guise of marrying her, and the two started living in his flat. After some time, the victim, purportedly, came to know about the genuine identity of Shamshad, after which he killed her along with her daughter and buried them in his house.
From the instances stated above, anyone might decipher clearly that there is an urgent need to address the issue by enforcing concrete legislation to stop such mishaps and chaos going on in society. However, the legislation should have provisions not contravening with the freedoms and rights of an individual. Thus, to nab and punish the offenders, the government of Uttar Pradesh implemented a law against forced conversion. Not only the state of Uttar Pradesh but the state of Madhya Pradesh and Karnataka also finalized the draft for the Anti Forced Religious Conversion law that is soon going to be presented in the respective state assemblies.
Though eight states in India like Gujarat, Tamil Nadu, etc. already have their specific anti-forced religious conversion acts, the law of Uttar Pradesh created turmoil in the political system. Now, it is all on the shoulders of the apex court to determine whether the legislation contravenes with the basic ideas of the Constitution or a few groups are just attempting to browbeat the state government for their own concealed benefit.