Author: Shriya Santosh Awale, Student at ILS Law College, Pune.
INTRODUCTION
Most of the countries in the world guarantee the ‘Right to Religion’ to its citizen. This right presumes special importance in a multi-religious country like India. India owes religious diversity where religion is a volatile issue and religious conversions make it more volatile. The Government has enacted various anti-conversions laws with the sole purpose of preventing forceful, coercive, and induced conversions in the country. But the Anti-Conversion Bill has faced various criticisms by alleging infringement of one’s ‘Right to Freedom of Religion’.[1]
“Love Jihad” is the heart of the country’s current debate. It is the term used by most Hindu Organizations to allege conspiracy of Muslims to marry Hindu women with the sole purpose of converting them into Islam. There have been many such forceful conversions especially in the state of UP concerning which the UP Government has proposed a love jihad ordinance with a two-fold purpose of preventing such forceful conversions and conversions for the sole purpose of marriages.
RELIGION
The word “Religion” is derived from Latin terms ‘Re’ and ‘Lingare’ which means ‘to bind back.’
In A.S. Narayana Deekshitulu vs. State of A.P. and others[2], Hon’ble Supreme Court, held “Religion” under Article 25 and 26 of the Constitution, is that which binds a man with his Cosmos, his Creator or super force. Religion is a matter of personal faith and belief of personal relations of an individual.
DEMOGRAPHY
“Secularism” is a centre point of the country’s every religious debate. The term secularism was inserted in the Preamble by the 42nd Amendment Act 1977. Talking of secularism, Donald E. Smith in his work “India as a Secular State” expressed, that Secular according to the Indians only means non-communal or non-sectarian but the same does not qualify to mean non-religious. A secular state relates to something called the “No Preference Doctrine” i.e. no privileges will be given to a particular religion. No particular religion can be assigned to any state.
Right to Religion is enshrined in Article 25 to 28 of the Constitution of India. However, the term ‘Religion’ is nowhere defined in the Constitution but is given a wide meaning through judicial pronouncements.
Article 25 of the Constitution states, “Individuals are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion, subject to public order, morality, and health.[3]”
In Vide Davis vs. Benson[4], referred: “the term ‘religion’ as an individual’s view with respect to his relation, his Creator and the obligations they impose of reverence for His Being, character and obedience to His will”.
Ratilal Panachand Gandhi vs. State of Bombay[5], this judgment enumerated the matters which the State can regulate i.e. matters associated or incidental to religion but, it cannot directly interfere with an individual’s freedom of religion[6]. Further the Constitution also empowers various institutions, charitable trusts to maintain and manage affairs concerning religion, acquire movable/immovable property and administer it according to the provisions of law[7].
The first person to spread awareness concerning increasing conversions is Mr Tarun Vijay who was MP in the Upper House of the Parliament in 2015. Mr Vijay spoke about the importance of maintaining the Hindu majority in the country. He believed that religion is a matter of personal choice and the same is used as a political tool.
INTERNATIONAL BACKGROUND
According to the International Human Rights Law and standards, people have freedom of thought, conscience, belief, and religion. Heiner Bielefeldt the UN (United Nations) Special Rapporteur in his report on Freedom of Religion and Belief mentioned the issue of religious conversions as it violates the legitimate right to convert which has now turned out to be a “Human Right” problem[8].
Article 18 of Universal Declaration of Human Rights [UDHR]:
“Everyone has the right to freedom of thought, conscience, and religion”, and clearly guarantees that such a right “includes freedom to change his religion or belief”. Furthermore, the nature of right provided under this article is of absolute character and is free from any limitation whatsoever it is and hence, the laws enacted in contravention will be against the international obligations.
Article 18 of the International Covenant on Civil and Political Rights [ICCPR]
The Article guarantees freedom of religion, by creating state-regulated conversion laws that entail series of obstacles to conversions violates the International Human Rights law and standards.
The Article guarantees unrestricted freedom of religion and it equally protects the freedom of thought and conscience. It also specifies that such freedom cannot be taken away even in times of public emergency. The article also protects the right not to practice certain belief, religion etc. It allows an individual to practice the religion of their choice either personally or in groups and communities. It further encourages an individual to change their current religion and adopt a religion of their choice[9].
Bielefeldt has divided the right to conversion into 4 categories:
- The right to conversion
- The right against forced conversions
- The right to try to convert others employing non-coercive persuasion; and
- The rights of the child and his or her parents in this regard[10]
Article 1- Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief
The Article guarantees an individual freedom of thought, conscience and religion and such right shall inclusive of right to practice religion or belief of their choice, either individually or collectively. The Article prohibits conversion by coercion and holds it violative of Human Rights.
Article 2 (1) –Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities.
Persons belonging to national, ethnic, religious, and linguistic minorities (hereinafter referred to as persons belonging to minorities have the right to enjoy their own culture, to profess and practice their own religion, and to use their own language, in private and in public, freely and without interference or any form of discrimination.
Article 14 and 30- Child Rights Convention
The Article guarantees Right to Freedom of religion, thought and conscience to a child and also the right to manifest their beliefs. It also protects the right to practice, profess and enjoy the culture and religion of a child who belong to religious, ethnic or linguistic minority.
INDIA
· Introduction
In India Religion assumes prime importance, being 2nd most populous country with a 1.3 billion population from which 14.2% are Hindus. India though secular, is recognized as a Hindu country. Though the country enjoys religious freedom there have been many instances of intolerance and violence in the name of religion. The first case was reported in 1990 and the cases increased up to 177 in 2014-15.
India is on No. 10 on the World Watch List in 2020 as according to it the Christians and Muslims are severely persecuted by the Hindus in the country. India is also on US Commission for International Religious Freedom’s (USCIRF) list of Tier 2 countries, where significant religious freedom violations take place[11]. Political parties and other Nationalist groups in the country are in favour of the Anti-Conversion laws as most of them believe that the Christians and Muslims are involved in forceful conversion practices of the lower caste Hindus.
· Background
The first Anti-conversion law came into existence around the 1930s in states where the Britishers did not directly rule. Post-Independence the Parliament considered various anti-conversion laws but all in vain. As the State Legislatures have the power to make laws concerning religion, several states enacted Anti-conversion laws e.g. Madhya Pradesh, Orissa, Uttarakhand, Arunachal Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand etc.[12]
PRE-INDEPENDENCE ANTI-CONVERSION LAWS
· The Rajgarh State Conversion Act, 1936
The said Act banned preaching and entry of Christian Missionaries in the former Kingdom of Rajgarh, Jodhpur and Surguja of the Chota Nagpur area.
· The Patna freedom of Religion Act, 1942
The Act was enacted with the sole purpose of preventing conversions by coercion, misrepresentation, fraud, force, undue influence etc.[13]
· The Surguja State Apostasy Act, 1945
The Darbar of the Rajas were empowered with the decision to allow or disallow the said conversions. This was to prevent law, order, and peace in the State.[14]
· The Udaipur State Anti-Conversion Act, 1946
The Act made it mandatory to register officially all conversion from Hindus to any other religion. The registration with the Government agencies secured the conversion by force, fraud, inducement, undue influence etc.
The aim of enacting all these laws was to protect the Hindus from aggression of all other religions especially the Christian Missionaries and Islam.[15]
According to most of these Acts the minors cannot be converted and the parents did not get automatically converted if their children got converted in any other faith.
POST-INDEPENDENCE ANTI-CONVERSION LAWS
1. The Orissa Freedom of Religion Act, 1967
The Act prohibits conversion and attempt or abetment thereof to any faith or religion by force, inducement, or other fraudulent means.[16]
· Punishment
Any act in contravention to the provision shall be punishable with one year imprisonment or fine that may extend to 5000 rupees or both [17]There is a special provision for minor, a person of SC, or ST and a woman where imprisonment and fine may extend to five years and 10,000 rupees.
2. The Madhya Pradesh (Dharma Swatantrya Adhiniyam) Act, 1968
The Act was enacted on the recommendations of the Niyogi Committee Report. The provisions of this Act concerning the forcible conversion and punishment for the contravention of the same are similar to that of the Orissa Freedom of Religion Act 1967. [18]
· Punishment
The Act apart from this makes it mandatory for a person who converts or the one who carries out such conversion to intimate the District Magistrate after such conversion and failure to do it shall subject the person to imprisonment up to one year or a fine of 1000 rupees.[19]
Ø Challenge to the Constitutionality of Orissa and MP Anti-Conversion Legislations.
The constitutional validity of the Orissa Act was challenged in Yulitha Hyde v. State of Orissa[20] in the year 1969 and that of MP was challenged in Rev. Stainislaus v. State of Madhya Pradesh[21], on similar grounds. The Act of Orissa was declared ultra vires the Constitution and exactly contrary to this the MP Act was upheld by the High Court. Later both these orders were challenged in the Supreme Court as both involved common question of law and were heard together in Rev. Stainislaus v. State of Madhya Pradesh. The Supreme Court upheld the validity of both these legislations.
3. The Arunachal Pradesh Freedom of Religion Act, 1978
The Act prohibits conversion and attempt or abetment thereof to any faith or religion by force, inducement, or other fraudulent means.[22]
· Punishment
The one who fails to comply with the provision shall be punishable with two years of imprisonment with 2000 rupees as a fine.[23]The Act makes similar provisions concerning intimation after conversion as that of the MP Freedom of Religion Act the only change is that under this Act the Deputy Commissioner shall be informed.[24]
4. The Chhattisgarh Dharma SwatantryaAdhiniyum, 1968 and Amended by Chhattisgarh Dharma Swatantrya (Sanshodhan) Adhiniyam, 2006
· Background
The State of Chhattisgarh was established in the year 2000 after the partition between the south eastern states of MP. The State retained the provisions of anti-conversion laws of MP by virtue of the power conferred under section 79 of the M.P. Reorganization Act, 2000. But as BJP came into power in the State it enacted anti-conversion laws between the years 2000-2010. The Ministry of Home Affairs in 2006 passed an anti-conversion Bill in 2006 which was brought by Raman Singh’s Government known as The Dharma Swatantraya Adhiniyam Act, 2006.[25]
· Amendment Act of 2006
The Act enhanced the term of imprisonment from one year to three years and fine from 5000 Rupees to 20,000 Rupees and in case of woman, minor and person of SC or ST instead of two years, four years imprisonment and a fine of 20,000 rupees instead of 10,000 rupees.[26]
· Notice and Inquiry
The provision empowers the District Magistrate to conduct an inquiry before granting permission to perform such a conversion ceremony. It also prescribes a two months period within which the conversion should be performed after the permission is granted.[27] The period to inform about such conversion is one month.[28]
· Appeal
A person aggrieved by the order of the District Magistrate concerning the refusal of permission to convert shall file an appeal within 30 days to the District Judge.[29]
· Punishment
Any act in contravention of Section 5 (2) shall be punishable with imprisonment and a fine which may extend to three years and 20,000 rupees[30] and to that of Section 5 (4) shall be punishable with imprisonment and a fine which may extend to one year and 10,000 rupees.[31]
5. The Tamil Nadu Prohibition of Forcible Conversion of Religion Act, 2002
No one under this Act shall attempt, abet, and convert any person from one religion to other by allurement, force, or any fraudulent means.[32] Any act in contravention to Section 3 shall be punished with imprisonment for the term of three years and fine of Rupees 50,000 and if the converted person is a woman, minor or of SC and ST then the said term shall increase to four years and fine of Rupees one lakh.[33] The provision of intimation to the District Magistrate is similar to the other Acts.[34]
6. The Gujarat Freedom of Religion Act, 2003
The said Act prohibits conversions by force, inducement, allurement, and by fraudulent means or attempt and abetment thereof.[35] The Act introduces a new term called allurement which is defined as the offer of any temptation through gift or gratification by cash or kind and grant of material benefit either monetary or otherwise.[36]
· Notice
The Act makes a provision concerning prior permission for conversion from the District Magistrate[37]and mandates that the same should be notified after such conversion has taken place. [38]Whoever acts in contravention to the above provision shall be imprisoned for the term of one year or fined with 1000 rupees or both.[39]
· Punishment
The State of Gujarat has enacted stringent provisions concerning any act in contravention to the provisions i.e. imprisonment for three years and fine of 50,000 rupees and in case of offense against a woman, minor, or a person of SC or ST it increases to four years and one lakh rupees.[40]
7. The Himachal Pradesh Freedom of Religion Act, 2006 and Amended in 2019
The Act prohibits conversions by force, inducement, or by fraudulent means and attempts and abetment thereof. Any person who is converted in contravention to this provision or who reverts to his parent’s religion shall be deemed not to be converted.[41]
· Notice
This Act incorporates a similar provision of prior notice of 30 days to District Magistrate and failure to give such notice shall be punishable with a fine of Rupees 1000. Such a notice is not required if the person reverts to the original religion.[42]
· Punishment
The one who fails to comply with the requirements of Section 3 shall be subjected to imprisonment and fine which will extend to two years and 25,000 Rupees or both. The term of imprisonment and the amount of fine will extend to three years and 50,000 Rupees if the offense is committed with women, minor, or a person of SC or ST.[43]
The 2019 Act amended the term of imprisonment from one year- five year and fine for contravention of Section 3.[44]
The conversions performed for sole purpose of marriage are declared null and void under this Act.[45]
8. The Rajasthan Freedom of Religion Act, 2006
The Act prohibits conversion by allurement, force or by any fraudulent means. The term of imprisonment for contravention of the Section 3 is two-five years and a fine of Rupees 50,000.[46]
9. The Jharkhand Freedom of Religion Act, 2017
Like other Acts, even this Act prohibits forceful conversions and attempt thereof. [47]
· Notice
The Act provides a mandatory requirement of prior notice to the District Magistrate and intimation after conversion. Any act performed against the provision shall be punished with imprisonment and fine which may extend to one year and 5000 Rupees or both.[48]
· Punishment
Any act in contravention to the foregoing provision shall be punishable with imprisonment or fine which may extend to three years and 50,000 Rupees and in case of a woman, minor, and a person of SC or ST four years and 1 lakh Rupees.[49]
10.The Uttarakhand Freedom of Religion Act, 2018
The conversions, attempt, and abetment thereof by force, inducement, allurement, misrepresentation, undue influence, and fraudulent means are prohibited by the Act. The definition under this Act is exhaustive as compared to the other Anti-conversion laws. Any person who reverts to the original religion shall not be a deemed conversion.[50]
· Who can lodge a complaint
Any person Aggrieved, his/ her parents or brother and sister may file a complaint in the court that the act is in contravention to Section 3 of the Act.
Provided if the aggrieved person or his brother and sister is suffering from a mental or physical or legal disability or any sickness a complaint may be filed by any other person or a person relating to such other person by blood, marriage, or adoption with leave of the court.[51]
· Punishment
The one who fails to comply with the requirements of Section 3 shall be subjected to imprisonment and fine which will extend to two years and 25,000 Rupees or both. The term of imprisonment will extend to five years and fine and in case of a woman, minor, or a person of SC or ST imprisonment not less than two years and not more than five years and fine.
11. The Uttar Pradesh Freedom of Religion Act 2019/ The UP Love Jihad Ordinance, 2020
· Background
In 1954, Mr. Jethalal Harikrishna Joshi, Member of the then ruling party moved in Parliament the Indian Converts (Regulation and Registration) Bill, 1954 provides for compulsory licensing of the missionaries and registration of conversion with government agencies. It was opposed mainly by Christians; the Bill was eventually dropped behest the Prime Minister of India.
In 1960 another Private Bill by Sri Prakash Veer Shastri, MP was introduced in Parliament. The Bill made provision such as notice to the licensing authority of conversion, registration after conversion, application to obtain a license and penalties for contravention of the provision.
Again in 1979, the house had witnessed introduction of Freedom of Religion Bill by O.P. Tyagi, seeking official curbs on inter- religious conversion, which was opposed among others by the Minorities Commission.[52]
The term “Love Jihad” means wagging Jihad through fake love and conversion. The UP State Law Commission (UPSLC) submitted draft legislation under its 8th Report of Freedom of Religion to Chief Minister Yogi Adityanath by Justice Aditya Nath Mittal, Chairman of the State Law Commission on November 21st, 2019. The Report does not mention the term Love Jihad and the legislation is not limited to the conversion between Hindus and Muslims instead it applies to all the Religions. The Report criticizes the existing penal provisions as they are not sufficient to curb conversions by means of force, inducement, allurement, undue influence, and other fraudulent means.
The Opposition Party Leaders criticized the Bill arguing that the same is against an individual’s Right to Equality before Law and Equal Protection of Law and Right to Life and Personal Liberty enshrined in the Constitution. They demanded the abolition of the Special Marriage Act under the same context.
The Bharatiya Janata Party (BJP) currently in power in the State of UP is trying to address the conversion issue because most of the marriages in the State are performed with the sole purpose of conversion. Thousands of conversion cases were reported from which 80% of the cases were of Muslim men marrying Hindu women and converting them.
· Anti-Conversion Laws
The Bill prohibits conversion, attempt and abetment thereof by use or practice of misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage. Provided if such a person reverts to his religion the said person is not deemed to be converted.[53]
· Who can lodge a complaint?
Any person aggrieved, his/ her parents, brother, sister or any other person who is related to him by blood, marriage, or adoption.[54]
· Declaration and Notice
The law make it mandatory to make a declaration to District or Additional District Magistrate stating that he wants to convert on his own free will and consent and is not forced to do so. The Act also puts obligation on the Priest who performs purification ceremony to give one month prior notice to the District or Additional District Magistrate. Later such Magistrate can make an inquiry concerning the same.
· Punishment
Any act in contravention to Section 3 shall be punishable of imprisonment for the term of five years and fine whereas if offense is committed against women, minor, person of SC or ST imprisonment for the term of two-seven years and fine.[55]
Conversion performed without declaration by an individual shall be punished with imprisonment for term of three months-one year and fine and without notice by the priest shall be punished with imprisonment for term of six months-two years and such conversion shall be held null and void.[56]
Conversion performed for the sole purpose of marriage shall be null and void under this Act.[57]
CASE LAWS
In Shakti Vahini vs. Union of India[58], certain directions were issued by the Supreme Court to the State as there was an increase in honour killing incidents especially in the State of UP. It held that the Khap Panchayats have right to take decisions in matters of inter-caste marriages but they cannot take the law in their hands as the States are governed by The Rule of Law. It noted that many incidents came in the light concerning conversions for the sole purpose of marriage.
Punjabrao vs. Dr. D.P. Meshram and others[59], S. Anbalagan vs. B Devararajan and others[60], Perumal Nadar (dead) by Legal Representative vs. Ponnuswami Nadar (minor),[61] it was observed that compliance with particular rituals or formal ceremony of purification is not necessary to effectuate conversion so also, the signature of a converted person in a register for conversion is not obligatory. Moreover the legal position concerning re-conversion is the same, no particular ceremony is prescribed thereof.
The Karnataka High Court in Sujatha v. Jose Augustine[62] observed, that one must truly profess a religion whether or not one has undergone any particular ceremony. The fundamental fact which is necessary to establish is one’s belief in the religion it professes.
· The Test of Conversion
The Supreme Court in Perumal Nadar v/s. Ponnuswami[63], Kailash Sonkar vs. Smt. Maya Devi[64] M.Chandra vs. M. Thangamuthu and Another[65], The Kerala High Court in Sapna Jacob, Minor vs. The State of Kerala & Ors[66], the Calcutta High Court in Rakheya Bibi vs. Anil Kumar[67], held that:
A mere theoretical allegiance to a particular faith does not convert an individual nor is a bare declaration sufficient for the same. The fundamental thing required is a bonafide and genuine intention which is unequivocally expressed, will form a sufficient evidence of conversion.
The same law applies to a re-convert where a clear and bonafide intention to revert to one’s old faith and accept all the customs and practices is necessary.
RECENT DEVELOPMENTS
As the UP 2020 Ordinance came into spotlight, many cases were filed in the court of law concerning anti-religious marriages. Recently, the High Court and the Supreme Court has upheld Right to Privacy of individual who has attained majority. The court has held “Right of Freedom to Choose Partner Irrespective of their Religion” as an intrinsic part of Article 21.
It further clarified that not every inter-religious marriage comes under the ambit of Anti-conversion legislations. The conversions performed by an individual with their own free will shall be excluded from the ambit of said legislation.
In Shafin Jahan vs. Ashokan K. M,[68] the Apex Court respected the Right to Liberty of a grown-ups individual.
In Priyapreet Kaur vs. State of Punjab[69], the High Court held that a women though not of a marriageable age but if has attained majority can choose her life partner and no one can interfere in her decision.
In Palash sarkar vs. State of West Bengal[70], if women has attained majority then in such cases she has a freedom to marry and convert and if such women decides not to return to her parental home then such is her own choice.
In Nadeem vs. State of UP[71], the High Court upholds the Right to Privacy and states that grown-ups are aware of the consequences of their acts and hence, have right to exercise their choice.
In Parveen vs. State (NCT of Delhi)[72], the Delhi High Court reiterated the same view as the other High Courts concerning women’s choice to live with a person she wishes to as a part of Right to Privacy.
In Salamat Ansari vs. State of UP,[73] in this case a Hindu woman married a Muslim man out of her own free will. The court held that interference in one’s personal relationship will cause serious encroachment into Right of Freedom to Choice of the individuals.
COMPARATIVE STUDY
Not many countries have enacted Anti-conversion laws. Apart from India, Nepal, Myanmar and Bhutan have enacted Anti-conversion laws. Sri Lanka had once considered Anti-conversion Bill but it never enacted any law. Pakistan passed a Bill with respect to the same but failed to enact a law.
Nepal
· Background
Nepal was a Hindu state with 81.6% ie.29 million population of Hindu. Nepal was officially a Hindu State until 2008. Later the monarchy was abolished. The Constitution of Nepal was adopted on 20th September 2015 which declared Nepal as a “secular state”. The 1990 Constitution which was in effect until January 2007 declared itself as a Hindu state although it did not declare Hinduism as a state religion. However there is fear in the mind of minorities due to increasing influence of nationalist Hinduism. Efforts are being made within the country in order to restore Hinduism as an official State religion.
· Anti-Conversion Laws
A Bill was registered with the parliament of Nepal since October 15 2014 and was passed on August 8 2017 with an object to criminalise religious conversions and hurting of religious sentiments. The Bill was signed by the President on October 16 2017. The major concern which arose in the minds of the religious minorities was that the clauses in the Bill were enacted in such a way so as to target them.
The Constitution of Nepal enacted an anti-conversion law under the title “Freedom of Religion” and guarantees its citizen right to practice, profess, and protect one’s religion according to one’s conviction. No doubt the Article places reasonable exceptions that any person while exercising the right cannot perform any act which may be contrary to public health, decency and morality or breach of public peace, or convert to any other person or perform any act or conduct which will jeopardise other’s religion.[74]
The Nepal Criminal Code prohibits propagation of one’s religion so as to undermine any other religion. A person who attempts to or has already caused such conversion shall be subjected to imprisonment for the term of three years and six years respectively. In case conversion is caused by a foreign national such shall be deported from the country after completion of their sentence.[75]
The provision of this Code is against encouragement of any act of conversion. It states that no one should convert a person nor practice or profess one’s religion with an intention or by using any attraction in order to disturb any other religion or belief that is practiced since the ancient times.[76]
· Analysis
The laws are poorly defined and can be widely misused to set up a personal agenda, target religious minorities and extremist’s agendas. Further the Bill restricts conversions which could be invoked against a legitimate expression of religious beliefs, e.g. Charitable and other purposes which portray a risk of an attempt to convert. Such anti-conversion laws can be misused to foster social-intolerance and violence towards peaceful religious activities and falsely accuse religious minorities.
The Nepal’s anti-conversion and blasphemy law are restricting the religious freedom of the citizens. The law is severely limiting the citizen’s rights to express their faith, especially the Christians, who can be punished simply for expressing their belief in Jesus Christ. Such statements could offend sentiments of Hindus and Muslims simply because they believe in many other Gods or do not believe in Jesus Christ.
Myanmar
· Background
Myanmar is a secular country, the 2008 Constitution of Myanmar though recognizes all the religions, it saves a special position to Buddhism as it is a faith practiced and professed by majority of its citizens. [77]According to 2014 census, Myanmar consists of 51.4 million people from which are 87.9% Buddhist.
The U.S.Ambassador Scot Marciel used a term “Rohingya” in reference to Muslim minority population in Rakhine State. Due to which there was a huge protest by the Buddhist including the support and participation of monks of MaBaTha (a monk-led group whose name is an acronym for the Organization for the Protection of Race and Religion) demanded his eviction from the country.
· Anti-Conversion Laws
The Parliament of Myanmar passed four race and religion law in 2015, which was signed by President Thein Sein under the influence of group of Buddhist monks Ma Ba Tha. The laws mostly targeted the minorities in the State.
The 2008 Constitution of Myanmar guarantees its citizens the “Right to freely profess and practise religion, subject to public order, morality or health.” Further it states that, “any act which is intended or is likely to promote feelings of hatred, enmity or discord between racial or religious communities or sects is contrary to this Constitution.” [78]
According to Constitution of Myanmar there is need of transparency in the system and the laws must be enacted to regulate the freedom of religion as well as freedom to choose and convert. Thus discretionary powers were allotted the non-judicial and non-representative bureaucratic bodies’ inappropriate and unnecessary power to the State which was against the right of freedom of religion, right to convert and right to privacy.
· Obstacles in Conversion
The law makes it mandatory for the individuals who want to convert, to apply to the Registration Board, comprising of individuals from various departments. An individual who wishes to convert must report his personal information to the township Registration Board in addition to his current religion and the religion he wishes to get converted. These individuals further go under a questioning by the board in order to check whether the person truly wishes to get convert or not. [79]
The Board also conducts an interview with the applicant to determine whether he with his own free will has decided to convert. The Board is required to schedule a 90 days trial which gives an opportunity to the applicant to study the religion and its laws in which he wishes to convert to. Such time period can be extended to 180 days on the request of the applicant. The Board has to determine whether the applicant has been induced or otherwise pressurised to convert. The State Board can deny the conversion certificate after considering all the above aspects.[80] The Bill also imposes age restrictions in order to apply for conversion to the registration board. [81]
· Analysis
The major concern was that the laws imposed limitations on freedom of religion and conversion. The registration process for conversion in The Religious Conversion Bill was such that it led to State intervention as without approval of the State no citizen was allowed to convert. The authorities were free to abuse law and harass minorities. Moreover the Bill was not clear on whether it applied to non-citizens or not, especially Rohingya minority, who were denied citizenship. This gave rise to religious tensions. The major problem with the system of registration is that, there is no provision for appeal if the person is aggrieved with the decision of the board. An appeal should be allowed to a judicial authority as a part of Rule of Law and it was against the fundamental right to appeal under Section 381 of the Constitution.
Myanmar is a part of Child Rights Convention hence, an age limit to apply for conversion[82]is violative of Article 14 of the Child Rights Convention.
The Buddhist Women Special Marriage Bill regulated marriages between Buddhist and Non-Buddhists with a view that Buddhist women are vulnerable and the non-Buddhist men will forcibly convert them. The Bill discriminates on religious and gender basis.
It was held that both these Bills were inherently flawed as they enter into sphere of fundamental right of religion and the right to privacy of an individual as a result such be completely rejected.
Bhutan
· Background
The Constitution of Bhutan was enacted in the year 2008. Bhutan is a sovereign power. The population of Bhutan consists of 75% Buddhist and 22% of Hindus. Buddhism is a spiritual heritage of Bhutan and it promotes peace, non-violence, compassion, and tolerance. It assigns responsibility to the religious institutions and personalities to promote religious heritage of the country and ensure that religion and politics remains separate from each other. [83]
· Anti-Conversion Laws
Fundamental Rights are enshrined in Article 7 of the Constitution of Bhutan. It vests in the Bhutanese citizens the Right to Freedom of thought, conscience and religion and no one shall be compelled to belong to any another faith by means of coercion or inducement.[84]
Bhutan’s Penal Code holds a defendant guilty of conversion by compelling a person by coercion, inducement, or any other means to convert. The person compelling another person to change his/her faith is considered as a misdemeanour. [85]
The Religious Organization Act prohibits the religious organizations from compelling a person to convert by coercion or inducement.[86]
· Analysis
Bhutan faces a similar problem as that of Nepal and Myanmar concerning various terms in the Act which are not exhaustively defined which in turn places the minorities and other religious organization at a risk of being prosecuted for conducting activities such as preaching their religion, performing charitable and educational activities etc.
CONCLUSION
In comparison to the legislations enacted in neighbouring countries, India is the only country who has enacted unbiased Anti-Conversion laws. In India the object of enacting these laws is to stop conversions made for the sole purpose of marriage and not to undermine the minorities in the country. It is not the case with other countries that enacted Anti-Conversion legislations to preserve their majority. Furthermore there is no strict procedure with respect to conversion in India unlike Myanmar.
Though various States in India have enacted Anti-conversion legislations and some have drafted Bills but, most of the states have not enacted laws concerning the same. Hence, there is a need to enact a Central Legislation with stringent provision in order to ban practice of conversion for sole purpose of marriage.
REFERENCES
[1] Article 25, Constitution of India
[2] A.S. Narayana Deekshitulu vs. State of A.P. and others, (1996) 9 SCC 548
[3] https://www.india.gov.in/sites/upload_files/npi/files/coi_part_full.pdf
[4] Vide Davis vs. Benson[4], 133 US 333 at 342
[5] Ratilal Panachand Gandhi vs. State of Bombay, AIR 1954 SC 388
[6] Article 25(2) (a), Constitution of India.
[7] Article 26, Constitution of India.
[8] Heiner Bielefeldt (Special Rapporteur on freedom of religion or belief), Interim report of the Special Rapporteur on freedom of religion or belief, ¶ 15, U.N. Doc. A/67/303 (Aug. 13, 2012) [hereinafter Bielefeldt, Right to convert].
[9] U.N. Human Rights Comm. (HRC), General Comment No. 22: Article 18: Freedom of Thought, Conscience or Religion, ¶ 3, U.N. Doc. CCPR/C/21/Rev.1/Add.4 (July 30, 1993) [hereinafter HRC, General Comment No. 22].
[10] Bielefeldt, Right to convert
[11] Tier 2, USCIRF, http://www.uscirf.gov/all-countries/countries-of-particular-concern-tier-2
[12] http://upslc.upsdc.gov.in/MediaGallery/8thReport.pdf
[13] Supra Note No.12
[14] http://upslc.upsdc.gov.in/MediaGallery/8thReport.pdf
[15] Supra Note No. 14
[16] Section 3, The Orissa Freedom of Religion Act, 1967
[17] Section 4, The Orissa Freedom of Religion Act, 1967
[18] Section 3 and 4, The Madhya Pradesh( Dharma Swatantrya Adhiniyam) Act, 1968
[19] Section 5, The Madhya Pradesh( Dharma Swatantrya Adhiniyam) Act, 1968
[20] Yulitha Hyde v. State of Orissa AIR 1973 Orri 116
[21] Rev. Stainislaus v. State of Madhya Pradesh AIR 1975 MP 163
[22] Section 3, The Arunachal Pradesh Freedom of Religion Act, 1978
[23] Section 3 and 4, The Arunachal Pradesh Freedom of Religion Act, 1978
[24] Section 5, The Arunachal Pradesh Freedom of Religion Act, 1978
[25] https://info36garh.wordpress.com/2012/06/21/chhattisgarh-freedom-of-religion-amendment-act-2006-act-18- of-2006/
[26] Section 4, The Chhattisgarh (Dharma Swatantrya Sanshodhan) Act 2006
[27] Section 5 (2), The Chhattisgarh (Dharma Swatantrya Sanshodhan) Act 2006
[28] Section 5 (4), The Chhattisgarh (Dharma Swatantrya Sanshodhan) Act 2006
[29] Section 5 (3), The Chhattisgarh (Dharma Swatantrya Sanshodhan) Act 2006
[30] Section 5(5), The Chhattisgarh (Dharma Swatantrya Sanshodhan) Act 2006
[31] Section 5(6), The Chhattisgarh (Dharma Swatantrya Sanshodhan) Act 2006
[32] Section 3, The Tamil Nadu Prohibition of Forcible Conversions Act 2002
[33] Section 4, The Tamil Nadu Prohibition of Forcible Conversions Act 2002
[34] Section 5, The Tamil Nadu Prohibition of Forcible Conversions Act 2002
[35] Section 3, The Gujarat Freedom of Religion Act 2003
[36] Section 2(a), The Gujarat Freedom of Religion Act 2003
[37] Section 5(1), The Gujarat Freedom of Religion Act 2003
[38] Section 5(2), The Gujarat Freedom of Religion Act 2003
[39] Section 5(3), The Gujarat Freedom of Religion Act 2003
[40] Section 4, The Gujarat Freedom of Religion Act 2003
[41] Section 3, The Himachal Pradesh Freedom of Religion Act 2016
[42] Section 4, The Himachal Pradesh Freedom of Religion Act 2016
[43] Section 5, The Himachal Pradesh Freedom of Religion Act 2016
[44] Section 4, The Himachal Pradesh Freedom of Religion Act 2019
[45] Section 5, The Himachal Pradesh Freedom of Religion Act 2019
[46] Section 3 and 4, The Rajasthan Freedom of Religion Act 2006
[47] Section 3, The Jharkhand Freedom of Religion Act 2017
[48] Section 5, The Jharkhand Freedom of Religion Act 2017
[49] Section 4, The Jharkhand Freedom of Religion Act 2017
[50] Section 3, The Uttarakhand Freedom of Religion Act 2018
[51] Section 4, The Uttarakhand Freedom of Religion Act 2018
[52] Section 4, 5, 8, and 9 of the Private Bill, http://upslc.upsdc.gov.in/MediaGallery/8thReport.pdf
[53] Section 3, UP Freedom of Religion Bill 2019
[54] Section 4, UP Freedom of Religion Bill 2019
[55] Section 5, UP Freedom of Religion Bill 2019
[56] Section 8, UP Freedom of Religion Bill 2019
[57] Section 6, UP Freedom of Religion Bill 2019
[58] Shakti Vahini vs. Union of India, 2018 (7) SCC 192
[59] Punjabrao v. Dr. D.P. Meshram and others, (AIR 1965 SC 1179),
[60] S. Anbalagan v. B Devararajan and others, (AIR 1984 SC 411)
[61] Perumal Nadar (dead) by Legal Representative v. Ponnuswami Nadar (minor), AIR 1971 SC 2352
[62] Sujatha v. Jose Augustine (II (1994) Divorce & Matrimonial Cases 442)
[63] Perumal Nadar vs. Ponnuswami .
[64] Kailash Sonkar vs. Smt. Maya Devi, AIR 1984 SC 600
[65] M.Chandra vs. M. Thangamuthu and Another, (2010) 9 SCC 712,
[66] Sapna Jacob, Minor vs. The State of Kerala & Ors, AIR 1993 Kerala 75
[67] Rakheya Bibi vs. Anil Kumar, ILR (1948) Cal. 119
[68] Shafin Jahan vs. Ashokan K.M. (2018) 16 SCC 368
[69] Priyapreet Kaur vs. State of Punjab CRWP 10828 of 2020 decided on 23-12-2020
[70] Palash sarkar vs. state of West Bengal WPA No. 9732 of 2020 decided on 21-12-2020
[71] Nadeem vs. State of UP 2020 SCC OnLine All 1496
[72] Parveen vs. State (NCT of Delhi) 2020 SCC OnLine Del 1481
[73] Salamat Ansari vs. State of UP 2020 SCC OnLine All 1382
[74] Article 26, Constitution of Nepal
[75] The Nepal’s Criminal Code Part 4, Chapter 19, Number 1.512
[76] Criminal Code 2074, Section 9, Clause 158
[77] Article 361, The Constitution of Myanmar 2008
[78] Article 34, The Constitution of Myanmar 2008
[79] Section 5, Myanmar Religious Conversion Bill
[80] Section 6, Myanmar Religious Conversion Bill
[81] Supra Note No. 76
[82] Supra Note No. 76
[83] Article 1 and 3, The Constitution of Bhutan
[84] Article 7.4, The Constitution of Bhutan
[85] Sections 463A and 463B of The Penal Code (Amendment) Act of Bhutan 2011,
[86] Article 5(g) of the Religious Organizations Act of 2007