The Gujarat High Court recently, stayed key provisions of The Gujarat Freedom of Religion (Amendment) Act, 2021 pertaining to marriages involving religious conversion of either of the two parties.
GS-II: Social Justice and Governance (Government Policies and Initiatives, Issues arising out of the design and implementation of Policies), GS-II: Polity and Constitution (Constitutional Provisions, Fundamental Rights), GS-I: Indian Society
Dimensions of the Article:
- Freedom of religion in our Constitution
- What is Religious Conversion?
- What is ‘Love Jihad’?
- Anti-Conversion laws in Indian States
- About the Gujarat Freedom of Religion (Amendment) Act, 2021
- Why have the laws been criticised?
- Important Cases Regarding Marriage and Conversion of Religion
Freedom of Religion in our Constitution
- Right to freedom of faith is not a conferred right but a natural entitlement of every human being. In fact, the law does not assign it but it asserts, protect and insurers its entitlement. Indian Society has nourished and nurtured almost all the established religion of the world like Hinduism, Islam, Christianity, Buddhism, Jainism, Sikhism etc. from its time immemorial.
- Article 25: All persons are equally entitled to “freedom of conscience and the right freely to profess, practise and propagate religion.” subject to public order, morality and health, and to the other fundamental rights guaranteed in the Constitution.
- Article 26: gives every religious group a right to establish and maintain institutions for religious and charitable purposes, manage its affairs, properties as per the law. This guarantee is available to only Citizens of India and not to aliens.
- Article 27: This Article mandates that no citizen would be compelled by the state to pay any taxes for promotion or maintenance of particular religion or religious denomination.
- Article 28: This Article mandates that No religious instruction would be imparted in the state-funded educational institutions.
What is Religious Conversion?
- Religious conversion has always been a very sensitive social issue not only because of the reasons that it has psychological concerns of religious faith but also because it has wider socio-legal and socio-political implications.
- Religious conversion means adopting a new religion, a religion that is different from his previous religion or religion by his birth.
- There are various reasons for which people convert to different religion:
- Conversion by free will or free choice
- Conversion due to change of beliefs
- Conversion for convenience
- Conversion due to marriage
- Conversion by force
Reasons for Religious Conversions
- Religious Conversion is a multifaceted and multi-dimensional phenomenon. Indian society is a pluralist and heterogeneous society with the multiplicity of races, religions, cultures, castes and languages etc. Religious Conversion has always been a problematic issue in India.
- The reasons for religious conversions in India can be–
- Rigid Hindu caste system
- Polygamy prevailing in Islam
- To get rid of matrimonial ties.
- To get reservation benefits.
What is “Love jihad”?
- The term “love jihad” was first mentioned in around 2007 in Kerala and neighbouring Karnataka state, but it became part of the public discourse in 2009.
- Love Jihad is an unsubstantiated campaign defined as an activity under which Muslim men target women belonging to non-Muslim communities for conversion to Islam by feigning love.
Why do the state governments want to enact the law to curb it?
- The state governments have argued that it is the duty of the state to protect the dignity of women from the men, by concealing their identities and operating secretly.
- The UP government referred to a recent order of the Allahabad High Court which said religious conversion for the sake of marriage is unacceptable.
- The Allahabad court in its order in the Salamat Ansari-Priyanka Kharwar case (Allahabad HC) 2020, observed that conversion “just for the purpose of marriage”, and where the religious belief of the party involved is not a factor, is unacceptable.
- The Allahabad High Court also ruled that the freedom to live with a person of one’s choice is intrinsic to the fundamental right to life and personal liberty under Article 21. Hence, the order recognised that our society rested on the foundations of individual dignity, that a person’s freedom is not conditional on the caste, creed or religion that her partner might claim to profess, and that every person had an equal dominion over their own senses of conscience.
Anti-Conversion laws in Indian States
- To date, there have been no central legislations restricting or regulating religious conversions.
- Further, in 2015, the Union Law Ministry stated that Parliament does not have the legislative competence to pass an anti-conversion legislation.
- Apart from UP and Gujarat, Madhya Pradesh and Himachal Pradesh too, have also enacted similar laws.
- In 1967-68, Orissa and Madhya Pradesh enacted local laws called the Orissa Freedom of Religion Act 1967 and the Madhya Pradesh Dharma Swatantra Adhiniyam 1968. Chhattisgarh inherited the law when it was carved out of Madhya Pradesh.
- The Arunachal Pradesh Freedom of Religion Act, 1978 was enacted to prohibit the conversion from one religious faith to any other by use of force or inducement. As the state has not formulated rules, the law is yet to be implemented in the State.
- The Tamil Nadu Prohibition of Forcible Conversion of Religion Ordinance was promulgated by the Governor on October 5, 2002 and subsequently adopted by the State Assembly. However, this law was repealed in 2004.
- The Rajasthan Assembly passed an Act in 2006, however, the Presidential assent is still awaited.
- The Uttar Pradesh Prohibition of Unlawful Religious Conversion Ordinance, 2020: The law makes conversion non-bailable with up to 10 years of jail time if undertaken unlawfully and requires that religious conversions for marriage in Uttar Pradesh to be approved by a district magistrate. The proposed law does not include any restriction on interfaith marriage.
About the Gujarat Freedom of Religion (Amendment) Act, 2021
- The Gujarat Freedom of Religion (Amendment) Act, 2021 was brought in line with several similar laws enacted last year by BJP-ruled states, starting with Uttar Pradesh, to amend the 2003 Gujarat Freedom of Religion Act.
- The laws ostensibly seek to end conversion through unlawful means, specifically prohibit any conversion for marriage, even if it is with the consent of the individual except when prior sanction is obtained from the state.
Why have the laws been criticised?
- The new anti-conversion laws shift the burden of proof of a lawful religious conversion from the converted to his/her partner.
- They define “allurement” for religious conversion in vague, over-broad terms; prescribe different jail terms based on gender.
- The new laws legitimise the intrusion of family and the society at large to oppose inter-faith marriages.
- They also give powers to the state to conduct a police inquiry to verify the intentions of the parties to convert for the purposes of marriage.
- Legal experts have pointed out that the laws interfere in an individual’s agency to marry a partner from a different faith and to choose to convert from one’s religion for that purpose.
- Apart from being vague and sweeping, the laws also test the limits to which the state can interfere in the personal affairs of individuals.
- The freedom to propagate one’s religion and the right to choose a partner are fundamental rights that the new anti-conversion laws impinge upon.
Important Cases Regarding Marriage and Conversion of Religion
- Lata Singh Case 1994 – The apex court held that India is going through a “crucial transformational period” and the “Constitution will remain strong only if we accept the plurality and diversity of our culture”. Relatives disgruntled by the inter-religious marriage of a loved one could opt to “cut off social relations” rather than resort to violence or harassment.
- Hadiya Judgement 2017 – Matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity. Neither the State nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters.
- Soni Gerry case, 2018 – The SC warned judges from playing “super-guardians”, succumbing to “any kind of sentiment of the mother or the egotism of the father”.
- Salamat Ansari-Priyanka Kharwar case (Allahabad HC) 2020 – The right to choose a partner or live with a person of choice was part of a citizen’s fundamental right to life and liberty (Article 21). It also held that earlier court rulings upholding the idea of religious conversion for marriage as unacceptable are not good in law.
-Source: Indian Express