Karnataka Anti-Conversion Bill is Unconstitutional – And Worse Than Others
Provisions on marriage & prior notice violate Supreme Court and high court judgments on the right to privacy.
(This article was first published on 21 December and has been republished. The Karnataka Assembly on Thursday, 23 December, cleared the anti-conversion bill.)
Following its approval by the Basavaraj Bommai cabinet on Monday, the Karnataka Freedom of Religion Bill 2021 looks set to be introduced in the state Assembly on Tuesday, 21 December.
The Bill is supposed to prevent "unlawful conversion from one religion to another by misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or marriage."
Given that last bit, the new legislation is similar to the new anti-conversion laws introduced in Uttar Pradesh and Madhya Pradesh over the last year, which were brought in on the heels of hysteria over the 'love jihad' conspiracy theory.
It has been consistently pointed out that the legal validity of the marriage-related provisions of these so-called 'freedom of religion' laws is extremely questionable, and this is one of the reasons why Karnataka's proposed new law is under fire.
The marriage-related provisions in it are virtually the same as those introduced in UP, MP and even Gujarat, which amended its anti-conversion law this year. No attempts have been made to address the questions asked by the Gujarat High Court when it stayed the marriage-related provisions in Gujarat.
But that's not all that's wrong with the Karnataka bill.
The rhetoric behind the introduction of an anti-conversion law in the state has been less about the unfounded bogey of 'love jihad', and instead focused on allegations of conversions to Christianity.
In its attempts to counter this specific issue, the Karnataka Freedom of Religion Act includes an even wider definition of the already-controversial concept of 'allurement'. This wider definition would become yet another ground to challenge the new law (or at least this part of it) – and also demonstrates why it is such a dangerous piece of legislation.
Much like other anti-conversion laws introduced in recent years, the proposed law for Karnataka also requires those wishing to convert to provide 60 days' prior notice to a district magistrate.
Much like these other laws, this is also quite clearly a violation of the right to privacy, something the Himachal Pradesh High Court held back in 2012, a position that has only become clearer after the Supreme Court's right to privacy judgment in 2017.
Why the Expanded Definition of Allurement is Dangerous
The concept of conversion by 'allurement' has been around since the very first anti-conversion laws in Orissa in 1967 (where the term used is 'inducement') and Madhya Pradesh in 1968.
In those states too, the hysteria around conversions by Christian missionaries had been the driving force behind the laws.
Making conversion based on 'allurement/inducement' unlawful (the definitions were virtually the same) was essentially meant to tackle the conversion of people from Scheduled Castes and Scheduled Tribes to Christianity or other religions because of the belief they would have a better life.
Dr BR Ambedkar had long championed this freedom of choice before he eventually converted to Buddhism in 1956, along with some 3 lakh other Dalits.
“Some persons mock and laugh at the idea of conversion for material gain. I do not feel hesitant in calling such persons stupid,” he wrote in 'What Path to Salvation', emphasising the liberty every person had to choose their faith, for whatever reason, as long as it was a conscious choice, freely made.
The concept of allurement in previous anti-conversion laws was already extremely vague, and militated against this liberty. The concept included any offer of any temptation in the form of:
Gifts, gratification, money or material benefits in cash or kind;
Employment, free education in a reputed school run by any religious body;
Better lifestyle, divine pleasure/displeasure.
The latter aspect in particular has long been something that it makes no sense to have in a law – the very point of most religions is to offer a better life (or afterlife) and to please god/gods.
Back in 1972 itself, the Orissa High Court had recognised that this concept was vague, and that many innocuous proselytising activities would be covered by it.
Crucially, the high court also found that Article 25(1) of the Constitution, which allows for the creation of restrictions on the right to practice/propagate one's religion, cannot be used to justify such a wide definition.
While the Supreme Court would go on to uphold both the Orissa and Madhya Pradesh anti-conversion laws in 1977, its judgment doesn't address the issue of the vagueness of the definition of 'allurement/inducement'.
Following the adoption of 'manifest arbitrariness' as a ground to strike down laws as unconstitutional in recent years by the Supreme Court (for instance in the triple talaq case), as well as the striking down of Section 66A of the IT Act in 2015 for being too vague, it is difficult to see how this issue can be ignored any longer.
Over and above all these existing concerns, Karnataka's new concept of 'allurement' goes even further, including within its definition an offer of any temptation in the form of:
Promise to marry;
Disturbing the freedom of practice, rituals and ceremonies or any integral part of a religion;
Offending religious sentiments.
What exactly do the latter two here mean? How can a person's personal choice to choose a religion be affected by the religious sentiments of others? Note that this isn't even clearly explained – whose sentiments are to be considered here?
Including such a vague concept in the law is an even greater invitation to misuse and abuse the law, and to harass those who wish to make a personal choice that society may disapprove of.
This is nothing but state-sanctioned interference with a person's autonomy and agency, and ignores how these choices were recognised as falling within the right to privacy by the Supreme Court, in the right to privacy judgment as well as the Hadiya case.
As the Supreme Court held in the latter:
"Matters of belief and faith, including whether to believe are at the core of constitutional liberty. The Constitution exists for believers as well as for agnostics. The Constitution protects the ability of each individual to pursue a way of life or faith to which she or he seeks to adhere. Matters of dress and of food, of ideas and ideologies, of love and partnership are within the central aspects of identity."
The inclusion of 'promise to marry' within the concept of allurement is also an extremely problematic aspect of the Karnataka bill. By adding this here, the law creates another avenue to harass interfaith couples, which is already what the main conversion-by-marriage provision does.
Remember that even an 'attempt to convert' is punishable under this law, so every time there is some extremely vague concept of conversion, it expands the scope for misuse.
Why the state should be entering into the domain of what is a private choice for couples, has always been unclear, and this new element only makes it worse.
Adding this within the definition of 'allurement' may be a way in which the Karnataka government is trying to avoid a stay on the marriage-related provisions similar to what the Gujarat High Court imposed.
In addition to noting how converting for marriage or not was within the sphere of the right to privacy, the high court had also observed that conversions for marriage did not fit within the framework of conversion by 'force, fraud or allurement', which had been upheld in Supreme Court's 1977 judgment as valid grounds for an anti-conversion law.
Nonetheless, on a first principle basis, it is difficult to see how conversions for the sake of marriage can be made illegal unless there is force or fraud involved, and this aspect is therefore highly likely to be struck down in the constitutional challenges that have been filed in high courts and the apex court.
In the Hadiya judgment, the Supreme Court had explained that an individual's choice in these matters is supreme:
"The absolute right of an individual to choose a life partner is not in the least affected by matters of faith. The Constitution guarantees to each individual the right freely to practise, profess and propagate religion. Choices of faith and belief as indeed choices in matters of marriage lie within an area where individual autonomy is supreme. The law prescribes conditions for a valid marriage. It provides remedies when relationships run aground. 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."
Notice Requirements Violate Right to Privacy
Finally, like all the recent anti-conversion laws, the requirement to provide the district magistrate with prior notice of an intention to convert, and then again after a conversion, is a gross violation of the right to privacy.
The Himachal Pradesh High Court judgment of 2012 on this is extremely clear. "A man's mind is the impregnable fortress in which he thinks and there can be no invasion of his right of thought unless the person is expressing or propagating his thoughts in such a manner that it will cause public disorder or affect the unity or sovereignty of the country," the court held.
It pointed out that this requirement would not prevent conversions by fraud, force or allurement, and that instead they created severe danger to the life of a convertee, and could even lead to communal clashes.
"We are of the considered view that in case of a person changing his religion and notice being issued to the so called prejudicially affected parties, chances of the convertee being subjected to physical and psychological torture cannot be ruled out. The remedy proposed by the State may prove to be more harmful than the problem."Himachal Pradesh High Court judgment in 2012 on notice requirements.
'Public order', one of the key grounds on which fundamental rights can be restricted, cannot be cited as a reason for requiring notice to be provided, not least because there is zero evidence to show that people's personal, voluntary choices to convert lead to serious disorder.
Keeping these considerations in mind, most of the Karnataka Freedom of Religion Bill 2021 cannot possibly stand scrutiny on constitutional grounds. While provisions on force and fraud will no doubt continue to stand, the concept of allurement, particularly as defined here, is on shaky footing, and the marriage and notice provisions are likely to be struck down.
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