Anti-conversion laws violate right to equality

Prem Chowdhry

Author and former academic, Delhi University

Currently, four states — Uttar Pradesh, Himachal Pradesh, Uttarakhand and Madhya Pradesh — have enacted anti-conversion laws that include provisions that prevent ‘conversion’ for the purpose of marriage. While all states have banned conversion by force, fraud or allurement and inducement of money, only these four states have placed a ban on conversion through marriage.

In the media, these have been commonly referred to as ‘love jihad’ laws, although this term does not feature in the law enacted. This is despite the fact that Uttar Pradesh Chief Minister Yogi Adityanath had publicly stated his intention to make a law to curb “love jihad”. The media, however, always refers to it as the ‘love jihad law’. Haryana, Karnataka, Gujarat and Assam have also announced proposals to introduce a similar legislation. The Chief Minister of Haryana stated that such a law is necessary in view of the several incidents of marriage and forcible conversion that had been reported in his state. Laws in all these four states are generally similar in terms of structure and have common features but differ in respect to severity of the imposed fine and punishment, which goes up to 10 years.

The state-level legislation took place when all attempts to enact these laws at the Central level failed. As a national legislation, it received a setback from the Ministry of Law and Justice, which stated that it was ‘purely a state subject’ — i.e., a matter that lies under the constitutional domain of the states only. Historically, laws restricting religious conversions were originally introduced by princely states headed by Hindu royal families during the colonial period — particularly during the latter half of the 1930s and 1940s. These states enacted the laws in order to preserve Hindu religious identity in the face of British missionaries.

Following Independence, the country’s Constitution, which aspired toward tolerance of all religions, guaranteed that each person was “equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion” (Article 25). This formulation did not come without dispute; the word “propagate” was one of the most contested in the whole of Indian Constitution. However, in favour of the Christians, the word ‘propagate’ was retained despite its disputed nature.

The Indian subcontinent is home to a diversity of religious beliefs and practices. According to the 2011 Census, Hindus in India are 79.80 per cent of the population, Muslims 14.23 per cent, Christians 2.30 per cent, Sikhs 1.72 per cent, Buddhists 0.70 per cent, Jains 0.37 per cent, and others 0.90 per cent.

The Constitution of India grants freedom of religion as a fundamental right. Yet despite this, over the years, there have been several incidents of religious intolerance which resulted in riots and violence, notably, the 1984 anti-Sikh riots in Delhi, the 1990 anti-Hindu riots in Kashmir, the 2002 Gujarat riots and the 2008 anti-Christian riots. Consequently, human rights organisations and institutions have been deeply concerned about the anti-conversion laws in Indian states. According to the US Commission on International Religious Freedom, these laws, based on concerns about unethical conversion tactics, generally require government officials to assess the legality of conversions only from Hinduism, and penalise the people concerned, leading to fines and a prison term for anyone who uses force, fraud or ‘inducement’ to convert Hindus. It has found this concentration on Hindus as deeply troubling and motivated.

The anti-conversion laws have not been without legal challenges in India. They have been challenged on the ground that innocent persons were being booked under these Acts. It has been stated that the laws relate not only to inter-faith marriages but all religious conversions and lay down elaborate procedures for those who wish to convert to another religion. In particular, it is stated that the law refers to the conversion of Hindu women to Islam when they marry Muslim men. Also, the fact that it is widely presumed that such conversions involve ‘coercion’ or ‘deceit’, and hence, Hindu women ought to be ‘protected’ from the danger of conversion. Although the government officials have defended these laws on the basis that their ‘aim’ is to protect young women, critics have emphasised that these laws target Muslims and quoted instances of such inter-faith couples having been harassed by militant activists and state government authorities. Women, it is clear, are being treated in a paternalistic way which assumes that they need protection at the cost of their right to make reasoned decisions about changing faith or choosing a friend or life partner.

India also has the Special Marriage Act, 1954, which can be used by inter-faith/inter-community couples to get married. The Act, however, requires an advance notice of 30 days to the magistrate before a couple is able to register their marriage. When the parties are from different faiths, communities or castes, such a public notice can be, and has been, a great source of danger and harm from their family/community members and those who object to their alliance.

Consequently, the only option exercised by the inter-faith couples is for one of them to convert to the religion of the other and get married. Curiously, therefore, most Indian personal laws make it far easier to convert and get married. This requirement of a 30-day public notice under the Special Marriage Act has been challenged in multiple petitions before the state high courts and the Supreme Court. Despite this, even more onerous requirements of an application to the district magistrate with a 60-day public notice (instead of 30) and a police inquiry before conversion for marriage is mandated under the Uttar Pradesh law. This ensures that neither conversion nor marriage will take place.

Clearly, anti-conversion laws amount to discrimination and a violation of the right to equality. Instead of pursuing this disastrous course, the government could work towards removing impediments to inter-faith marriages and eradicating the social stigma attached to such marriages, so that the couples who wish to enter into inter-faith alliance are enabled and protected.

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