Date: 06/02/2023

Relevance: GS-2: Indian Constitution - historical underpinnings, evolution, features, amendments, significant provisions and basic structure.

Key Phrases: Supreme Court, Law Commission of India, Forcible Conversion, Constitution, Freedom of Religion.

Context:

• The Supreme Court refused a plea to refer to the Law Commission of India the question whether “forcible conversion” should be made a separate offence relating to religion under the Indian Penal Code.

Key Highlights:

• During the hearing, The Chief Justice asked why the matter needed to be referred and expressed concerns about objectionable statements in the writ petition.
• Senior advocate, representing the petitioner, argued for the offense to be added under Chapter 15 (offences relating to religion) of the Penal Code.
• While another senior advocate opposed the petition as vexatious and containing "unpalatable" remarks about minority religions.

Laws on Conversion:

• Before Independence: The British did not enact any law. But many princely states did.
  • For instance: Raigarh State Conversion Act, 1936, Patna Freedom of Religion Act, 1942, Sarguja State Apostasy Act, 1945, Udaipur State Anti-Conversion Act, 1946. Specific laws against conversion to Christianity were enacted in Bikaner, Jodhpur, Kalahandi and Kota.
• After Independence: In 1954, Parliament took up for consideration the Indian Conversion (Regulation and Registration) Bill. Six years later, another law, the Backward Communities (Religious Protection) Bill, 1960, was proposed to stop conversion. Both were dropped for want of support.
  • However, Orissa, Madhya Pradesh and Arunachal Pradesh passed anti-conversion laws in 1967, 1968 and 1978 respectively.
  • Later, similar laws were passed by the state assemblies of Chhattisgarh (2000), Tamil Nadu (2002), Gujarat (2003), Himachal Pradesh (2006), and Rajasthan (2008).
  • The laws were intended to stop conversions by force or inducement, or fraudulently. Some of the laws made it mandatory to seek prior permission from local authorities before conversion.
• Constitution on freedom of religion: Articles 25-30 guarantee citizens freedom of conscience and free profession, practice and propagation of religion.
  • They also guarantee freedom to manage religious affairs, monetarily contribute to promotion of any religion, and to set up and administer educational institutions.

Legal Challenge and Significant Judgments on Conversion:

• The first major case in which the Supreme Court ruled on the freedom of religion and on conversions related to petitions challenging the conversion laws of Orissa and MP in 1967-68.
  • In 1977, a constitution bench headed by then Chief Justice of India A N Ray upheld the validity of the laws, saying freedom to propagate one’s religion, as stipulated under Article 25 (1), did not grant a fundamental right to convert another person.
• In the Sarla Mudgal case (1995), the Supreme Court held that conversion to Islam was not valid if done only in order to be able to practise polygamy.
  • It was held to be an act of bigamy prohibited u/s 17 of Hindu Marriage Act, 1955, and punishable under Section 494 IPC. The second marriage would be void, the SC observed.
  • This position was reaffirmed by the judgment in the Lilly Thomas case (2000), which clarified that prosecution for bigamy was not a violation of the freedom of religion under Article 25.
• In the Vilayat Raj case (1983), The court said that if both parties were Hindu at the time of marriage, provisions of the Hindu Marriage Act can apply even after one of them or both converted to Islam.
• In the Chandra Sekaran case (1963), the court had observed that a person does not cease to be a Hindu merely because he declares that he has no faith in his religion, or if he stops practicing his religion.

Conclusion:

• The case concerns the anti-conversion enactments of nine States, including Uttar Pradesh, Himachal Pradesh, Madhya Pradesh, Uttarakhand, Gujarat, Chhattisgarh, Haryana, Jharkhand and Karnataka.
• The religious conversion laws under challenge mandate a person proposing to convert or a priest who would preside over the ceremony to take prior permission from the local District Magistrate.
  • Besides, the burden of proof was on the convert to prove that he or she was not forced or “allured” to change faith.
• The petitions have argued that these State laws have a “chilling effect” on the right to profess and propagate one’s religion, enshrined in Article 25 of the Constitution.
• The court gave time to the state governments that have enacted laws on religious conversion to respond to a petition requesting the transfer of cases challenging these laws from the relevant High Courts to the Supreme Court for a definitive ruling on their legality.

Source: The Hindu

Mains Question:

Q. State laws on conversion issue have potential to cause undesirable effects on the right to profess and propagate one’s religion, enshrined in Article 25 of the Constitution. Evaluate (150 words).