(This story was first published on 24 November 2020, and is being republished from The Quint's archives to mark one year since the anti-conversion law in Uttar Pradesh came into effect.)
‘Love jihad’ laws being planned by several BJP states are nothing but old wine in a new bottle featuring existing anti-conversion laws in India.
Because, what the states are planning to do could be out of legal bounds. What the states can finally do within the ambit of legal validity already exists in many parts of India as age-old anti-conversion laws or the Freedom of Religion Acts that deal with forced conversions.
These laws were passed or attempted to be passed in at least nine Indian states – Odisha, Madhya Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand and Uttarakhand.
Even though parts of the law varies from one state to another, all of them have commonalities in their content and structure:
The laws seek to prevent religious conversions by force, fraud or inducement/allurement. Some states like Uttarakhand and Himachal Pradesh also include the provision of marriages in these anti-conversion laws.
The authorities are mandated to be informed prior to a stipulated time in case of conversion, and the consent of the person converting must be given in writing to the District Head.
The laws lay out penalties ranging from monetary fines to imprisonment, punishments ranging from one to three years of imprisonment and fines from 5,000 to 50,000 Indian rupees.
Stiffer penalties are provided if the one who is converting is a woman, minor or a member of Scheduled Caste/Scheduled Tribe.
After attempts of introducing such laws at the central level post-Independence, they started to be enacted at the state-level since in the 1960s, with Odisha and Madhya Pradesh leading the charge.
Let's look at the overview of the anti-conversion laws in each state:
Post independence, Odisha was the first to pass an anti-conversion law – the Orissa Freedom of Religion Act, 1967.
In 1973, the Orissa High Court had declared the same Act “ultra vires to the Constitution” on counts that the Indian Constitution guarantees freedom of religions and the term “inducement” in the Act was vague.
However, this decision was overturned by the Supreme Court of India in Rev. Stainislaus v. State of Madhya Pradesh.
2. Madhya Pradesh
The State of Madhya Pradesh was the second state to enact an anti-conversion law, the Madhya Pradesh Freedom of Religion Act, 1968.
Unlike the Orissa High Court, in 1977, the Madhya Pradesh High Court upheld the Madhya Pradesh Freedom of Religion Act, 1968, stating that the relevant sections “establish the equality of religious freedom for all citizens by prohibiting conversion by objectionable activities such, as conversion by force, fraud and by allurement.”
Madhya Pradesh has, time and again, sought to amend this law to make stricter provisions for religious conversions. In 2006, an amendment to seek one month notice prior to conversion, stricter punishment, police interference to ensure “voluntary conversion” and the details of purification ceremony where the conversion takes place were sent to the President for assent by the then Governor Balram Jakhar. But, it was turned down by APJ Abdul Kalam who felt that it “violated the freedom of religion guaranteed in the Constitution because it insists on prior permission.”
Months before the 2013 Assembly elections in the state, the issue was brought up again, and an amendment was passed in the House that enhances jail terms, making it compulsory for the priest to request prior permission for the proposed conversion, and require the person who has converted to inform authorities within a stipulated period of time.
However, according to a news report on The Wire, the amended Bill still remains pending a assent in the President’s office.
3. Arunachal Pradesh
Following the High Court cases in Orissa and Madhya Pradesh, anti-conversion legislation was implemented in the states of Andhra Pradesh, Tamil Nadu, and Arunachal Pradesh in 1978 on similar lines.
The law which was passed “[i]n view of the perceived threat to indigenous religions,” received presidential assent on 25 October 1978 but remains to be enforced since the government is yet to frame the rules needed to implement it.
In 2018, the BJP government in Arunachal Pradesh headed by CM Pema Khandu had announced plans of repealing the law. CM Khandu, while addressing a function organised by the Arunachal Pradesh Catholic Association had said, “The anti-conversion law could undermine secularism and is probably targeted towards Christians.”
However, just days later, the BJP government backtracked on CM Khandu’s words after the then BJP General Secretary in-charge of the northeast Ram Madhav tweeted saying the chief minister had not said that the law would be repealed.
Chhattisgarh, which was earlier part of Madhya Pradesh, retained the provisions of the anti-conversion law and adopted it under the title Chhattisgarh Freedom of Religion Act, 1968.
An amendment to the Bill was passed in 2006 under the BJP government but still awaiting approval stipulated that “return in ancestor’s original religion or his own original religion by any person shall not be construed as ‘conversion’.” This means, the ghar wapsi ceremonies usually held by right-wing groups to convert Christians and Muslims to Hinduism would not fall under the ambit of “conversions".
Gujarat adopted the Gujarat Freedom of Religion Act in 2003 on the same lines as the other states, except under Section 5 of this Act, where a person wanting to convert must seek prior permission from the District Magistrate with respect to the conversion.
In 2006, an amendment was passed by the ruling BJP government which sought to redefine “conversions” to not include “inter-denomination conversion of the same religion.” The amendment said that Jains and Buddhists would be construed as denominations of Hindu religion; Shias and Sunnis shall be construed as denominations of the Muslim religion; and Catholics and Protestants shall be construed as denominations of Christian religion.
However, after Buddhists and Jains raised objections, the state government withdrew the amendment.
6. Himachal Pradesh
Himachal Pradesh’s anti-conversion law was the one that was cited by Haryana Home Minister Anil Vij while talking about bringing in a law against what they called 'love jihad'.
It was brought into force in 2007 by the Virbhadra Singh-led Congress government. According to the South Asia Human Rights Documentation Centre, “[i]ts adoption is particularly ironic in view of the fact that the state government is led by the Congress Party, which has consistently sought to highlight its ‘secular’ credentials.”
In 2019, a stricter version of the law was enacted which said that any marriage done for the sole purpose of religion conversion may be declared null and void by a court on a petition by either party. This Act also does not cover a person re-converting to his “parent religion.”
The Rajasthan Assembly also passed an anti-conversion bill in 2006, but it was never given assent by the state’s governor. The Rajasthan Dharma Swatantraya Vidheyak was passed by the Assembly in 2008 during BJP Chief Minister Vasundhara Raje’s rule but in 2017, the central government returned the bill seeking further clarifications.
7. Tamil Nadu
The Tamil Nadu Prohibition of Forcible Conversion of Religion Ordinance 2002, subsequently replaced by the Tamil Nadu Prohibition of Forcible Conversion of Religion Act 2002, was passed under Jayalalithaa’s government. The Act was later repealed following outrage and protests by minority communities.
Chief Minister Hemant Soren, after taking oath in 2019 Assembly elections, said that reviewing the Jharkhand anti-conversion law passed in 2017 will remain one of this top priorities, as it targeted the Christian community in the state.
The BJP and other right-wing groups in Jharkhand have always alleged that Christian missionaries, through their education and health programmes, try to attract poor tribal and Dalit people in the villages.
CM Soren had told The Print, “Religion should not be used as a divisive force. It’s an individual choice. We will definitely review it once the new Vidhan Sabha is formed.”
Uttarakhand was the last to join the bandwagon of anti-conversion laws in 2018 with the state governor giving his approval. The Uttarakhand Freedom of Religion Act, like its counterpart in Himachal, also dealt with conversions in marriages.
In 2017, the Uttarakhand High Court had asked the BJP government in state to frame an anti-conversion law on the lines of those existing in Madhya Pradesh and Himachal Pradesh, while noting that “it has come to our notice that the conversion from one religion to another is often a sham conversion only to facilitate the process of marriage.”
Prior to Independence, several princely states had rolled out such anti-conversion laws as well. Post independence, too, there were several attempts to bring in laws against conversions at the Central level but they always failed. In 2015, the Law Ministry had clarified that anti-conversion laws are completely in the domain of the states.
Now, from the minimum information that has surfaced about the provisions of the new ‘love jihad’ laws being planned, it seems they are based on the same lines as the anti-conversion laws added with the rhetoric of 'love jihad', a term which the Modi government itself has failed to provide a definition for in the Parliament.
(With inputs from Library of Congress)