The Supreme Court (SC), while hearing arguments in a PIL in January 2023 for the enactment of a special legislation to ban forced religious conversions, stated that the issue of the ban on forced conversions should not be given a political colour.
The petition filed by a lawyer and BJP Spokesperson Ashwini Kumar Dubey, in December of last year, comes after the suicide of a 17-year-old girl in Tanjaur, Tamil Nadu in January 2022, who allegedly was being forced by her school to convert to Christianity.
Given the circumstances surrounding the petition, the SC has rightly taken cognizance of what is a serious matter. However, it is still important that the court view laws criminalizing forced conversion through a critical lens.
What is the current status of conversion laws in India?
Article 25 of the Indian Constitution pertains to freedom of religion. It states that all persons are equally entitled to freedom of conscience and the right to freely profess, practice, and propagate religion subject to public order, morality, and health.
Currently, over 10 states have laws against forced religious conversion in place. While a number of these are not new and were passed in the 20th century, a new brand of anti-conversion legislation has emerged in states like Uttar Pradesh (UP), Himachal Pradesh, Madhya Pradesh (MP) and Uttarakhand, all Bhartiya Janata Party (BJP) ruled states (Himachal had BJP government in power when the law was passed).
These new laws have been the center of much controversy, and have been criticized as overly punitive and violative of the right to freedom of religion under article 25 of the Constitution.
Since the laws purport to only prohibit “unlawful” or “forced” conversion, it requires that the actual content of the law be analyzed and discussed vis-a-vis the social and communal dynamics within these states.
UP government passed a law titled the “Uttar Pradesh Prohibition of Unlawful Conversion of Religion, 2020 Ordinance” on November 27, 2020. The law has been infamously known as the ‘love jihad’ law, as its primary purpose is to stop the concocted phenomenon of love jihad.
What is love jihad?
“Love jihad” is a term that has been used to describe a suppositious situation where Muslim men target non-Muslim women for conversion to Islam through feigning love or marriage. The term has been used by some Hindu nationalist groups in India to accuse Muslim men of luring Hindu women into relationships with the intent of converting them to Islam. However, the concept of ‘love jihad’ has been widely discredited and there is no evidence to support the existence of such a phenomenon. It has been criticized as a politically motivated and Islamophobic campaign with the intention to demonize Muslims and create religious tensions.
This ordinance in particular has been highlighted in the past few years for its alleged unlawful and unconstitutional provisions.
It provided a framework for other contentious state laws that followed, such as the Madhya Pradesh Freedom of Religion Act, 2021, and hence it is appropriate to discuss the nature and impact of these legislations through the Uttar Pradesh legislation.
Some of the key points of this ordinance are:
- It makes religious conversion through misrepresentation, fraud, undue influence, and allurement a cognizable and non-bailable offense, with penalties for those found guilty.
- It also invalidates marriages that are solely for the purpose of unlawful conversion.
- The term “allurement” is broadly defined in the ordinance, including simple gifts or promises of a better lifestyle as illegal. To put this in context, Advocate and Author Abhinav Chandrachud in this Article, published in 2020 in Indian Express, explained that even providing a copy of a religious text can be considered allurement, even if, on reading the text, the recipient chooses to convert of their own volition.
- This ordinance does not criminalize the act of reconversion. So, if a person is converted from Hinduism to Islam lawfully, but is coerced into converting back to Hinduism, that coercion will be considered legally valid.
- Punishments for unlawful conversion range from one year to five years in prison, with harsher sentences for women, minors, and individuals from Scheduled Castes/Scheduled Tribes, and even more severe punishments for mass conversions.
- The ordinance places the burden of proof on the person who has performed the conversion to prove it was not done through illegal means, giving significant power to District Magistrates and police to detain and prosecute those suspected of converting others.
- Religious conversions must be reported to the District Magistrate, and both the person converting and the religious converter must confirm their actions with the District Magistrate at least 60 days in advance
What is the impact of these legislations?
Given the punitive and stringent nature of the ordinance, the conversion law in UP like other draconian laws like the Unlawful Activities Prevention Act and the Prevention of Money Laundering Act. The ramifications of this ordinance and other pari materia legislations like the Madhya Pradesh Freedom of Religion Act have come in the form of aggressive policing of already persecuted minorities, resulting in direct conflict with the established principles of human rights.
The majority of love jihad cases reported within the first month of the love jihad ordinance in UP, were filed by the father or uncle of a Hindu woman who eloped with a Muslim man. Only two out of the 14 cases reported during this time had the woman as the complainant. Many of these women have refused to give a statement due to social pressure.
This new ordinance creates a tall barrier to interfaith marriages by giving the power to decide marriages solely to the family of the girl, and also harshly penalizes the man, typically a Muslim.
In fact, under the Madhya Pradesh Freedom of Religion Act, 2021, as of January 2022, all 107 booked under the act have been exclusively Muslims and Christians, 78 and 29 respectively. Hindu fundamentalist groups have been leveraging these legislations to implicate persecuted minorities, especially Muslims, in a larger, ‘love jihad’ conspiracy.
Some salient features of the MP Freedom of Religion Act, 2021 are:
- The Madhya Pradesh Freedom of Religion Act, 2021 aims to penalize religious conversions done through fraudulent means, particularly those done for the sake of marriage.
- Declares marriages performed with the intent to convert any person as null and void.
- Introduces long-term imprisonments and hefty fines for violators.
- Mandates religious priests to inform the authority before organizing any conversion ceremony.
- Any conversion through misrepresentation, allurement, force, undue influence, coercion, marriage, or any other fraudulent means, shall be considered null and void.
- Abetment and conspiracy for religious conversion are also prohibited.
Under these special legislations, all conversions happening in the state will be considered fraudulent and unlawful unless proven otherwise. The requirement for advance notice to the District Magistrate by the one conducting the religious conversion will allow administrative authorities to keep track of all religious conversions in their jurisdiction. Not only is this a violation of the right to freely practice and propagate one’s religion under Article 25 of the Constitution, but it is also a larger right to privacy concern.
High Courts have generally taken a critical view of these legislations, and relaxed requirements under the law in some cases, and outrightly declared certain sections of the relevant legislations as unconstitutional.
In a 2021 article on UP’s love jihad law, former Chief Justice of the Delhi High Court, AP Shah said that such laws threaten to disrupt the social fabric of India’s pluralistic society.
How do we understand the SC’s comments in this context?
In light of the SC’s recent comments, it must be stressed that while forced religious conversion is a real and concerning issue, the existing legislations in place to prevent it are inherently political. The current government’s emphasis on enacting laws that actively persecute minorities through administrative systems in the name of preventing fraudulent conversion is a big cause for the SC to be wary of the impacts of these laws.
| “I am asking you people – don’t speak about minor issues like road and sewage. If you are worried about your children’s future and if you want to stop ‘love Jihad’, then we need BJP for that. To get rid of love jihad, we need BJP.” Comments by Nalin Kateel, BJP State President for Karnataka |
The power given to the police, right-wing fundamentalist groups, and conservative families by such laws to take cognizance of religious conversions is concerning, to say the least. It is required that the SC strikes a balance between two interests, and not dismiss legitimate concerns that politically motivated legislation to counter conversion may do more harm than good.
Deb is a student of law at The Rajiv Gandhi National University of Law, Patiala and is currently an intern with TA.
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