Pressing principles of our Constitution have detached ‘religion’ from state & politics, but ironically religion is the blockbuster subject in the political vendetta of any Party.
For instance, the ‘Ayodhya land dispute’ which boasts of being India’s longest fought legal battle was one such subject that remained a heated trending topic for decades. Politicians all over the nation kept on warming their hands over the ablaze religious sentiments of ‘WE THE PEOPLE OF INDIA’.
Today, i.e. on 18th December 2020 [on this date the Constitution (42nd amendment) bill was assented by the President] the word ‘Secularism’ has completed 44 years of its formal inception in our 70 years old Constitution.
Although the Indian constitution has been secular in spirit since its dawn, it became secular in the letter only after the addition of ‘Secularism’ in Preamble of the Indian constitution by virtue of the 42nd amendment in 1976 (also known as mini-constitution).
It is a matter of grave concern that ‘Secularism’ has been taken too lightly by those in the governance, forming up ‘state’ as per Article 12 of the Indian constitution.
‘Religious ruthlessness’ has been the most effective weapon in the arsenals of Politicians to win elections, and they have frequently used it, showing sheer disregard to the ethos of our Constitution makers.
Freedom of Religion and Anti conversion laws in India: An overview
India has witnessed a widespread restraint against religious conversions for a long time, backed by the likes of religious scholars and leaders of almost all religions. The Constitution of India in Article 25 guarantees ‘freedom to practice, propagate, and profess any religion’ to all persons (citizens as well as foreigners).
The right is not absolute. It comes with certain restrictions. The freedom is subject to- Public order, Morality, or Health; Laws relating to the restriction of any activity associated with religious practices; and social welfare and reforms that might interfere with religious practices.
Article 25 doesn’t protect every practice. Only those practices that fall integral to religion are protected under it. It is the duty of the court to decide whether the practice is integral to religion or not.
The constitutionality of anti-conversion laws has been challenged in law courts from time to time on the ground that ‘freedom to propagate’ in Article 25 includes ‘right to conversion’.
The most controversial form of conversion that has been a hot topic in the recent past is Marital Conversions, i.e. conversion due to marriage. With the U.P government set to pass the Uttar Pradesh Prohibition of Unlawful conversion of religion act the controversy has only widened.
Secularism and Freedom of Religion
‘Secularism’ denotes that the government shall not be influenced by religion. In the Indian context, it meant that the State has no religion of its own. Therefore, the government is neutral on it (neither anti nor pro). The concept of ‘Secularism’ is an offspring of the fundamental right to equality enshrined in Article 14 of the constitution.
In the eyes of law, every religion is equal. In a nutshell, ‘Secularism’ connotes that the state would not intervene in the matters of faith, while ‘Freedom of religion’ means that everyone is free to follow their faith.
Anti- Conversion laws
Madhya Pradesh and Orissa were the forerunner Indian states to pass anti-conversion laws. Orissa passed its ‘Freedom of religion’ act in 1967 while enacted its ‘M.P Dharma Swatantrya Adhiniyam’ in 1968.
Both these laws were meant to prohibit conversion from one religion to another by the use of force or allurement or by fraudulent means and matters incidental thereto. Later many state governments including Arunachal Pradesh, Tamil Nadu, Gujarat, and Himachal Pradesh drafted similar legislations.
Recently the U.P government bought Uttar Pradesh prohibition of unlawful conversion of religion by way of ordinance. The law seeks to prohibit unlawful conversion by marriage. The law states that ‘there can be no conversion by marriage, there can only be a conversion for marriage.’
Constitutionality of Anti-conversion laws: An analysis
The Constitutionality of Anti-conversion laws has been questioned from time to time. In Rev Stainislaus Vs State of Madhya Pradesh, the Apex court held ‘conversion is not a fundamental right’ and thus it can be regulated by the state.
Therefore, the court upheld the constitutionality of the anti-conversion laws of M.P and Orissa. At the time when the constitution was drafted, the word “conversion” was used in Article 25 instead of “propagate”.
However, later on, the recommendations of the Sub-committee on minorities headed by M. Ruthnaswamy the word “conversion” was replaced with “propagate”. It left the situation cloudy as to whether the anti-conversion laws are valid or ultra vires to the constitution.
Penalties under the U.P’s anti-conversion law
Section 3 of the law criminalizes abetment, conspiracy, and also convincing for conversion. While abetment and conspiracy are criminalized in other laws too (such as in IPC), criminalizing the act of convincing seems vague.
Section 4 of the act enables any person related by blood, marriage, or adoption to the person being converted to lodge a complaint against such
Section 5(2) of the act provides compensation up to 5 lakh rupees to ‘victims of conversion’.
Salamat Ansari & Ors Vs State of U.P & ors (Allahabad High court) In this recent judgment of the Allahabad high court, it was held that the Right to live with a person of his/her choice irrespective of religion professed by them is integral to Right to life enshrined in Article
Stainilus Rev Vs State of M.P- In this landmark ruling the Supreme Court upheld the constitutionality of anti-conversion laws.
But the judgment also quoted that nobody has the fundamental right to convert the religion of others without their free choice. The court also said that right to propagate under Article 25 doesn’t include the Right to Convert.
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