On 21 September, the Uttar Pradesh Anti-Terror Squad arrested Islamic scholar Maulana Kaleem Siddiqui, saying he was connected to a massive religious conversion syndicate, which the ATS claims to have busted in June this year.
The other accused in the matter, including Mohammad Umar Gautam and Mufti Kazi Jahangir Alam, two clerics from Delhi, have been charged with serious offences under the IPC including conspiracy to wage war against India, as well as offences under the UP Prohibition of Unlawful Conversion of Religion Act 2021.
According to the UP police, the conversion syndicate had received foreign funding including from the ISI to convert people to Islam, and had succeeded in converting around 1,000 people in UP.
They are alleged to have targeted children with disabilities, women, unemployed and poor persons with promises of jobs, education, marriage and money.
But when does a conversion become 'illegal'? Is there a law like the IPC which specifies this? And what have the courts said in the past about the constitutionality of such laws?
ANTI-CONVERSION LAWS: A STATE GOVT INITIATIVE
Anti-conversion laws have been in the news for the last year after a slew of BJP-ruled states, including UP, Madhya Pradesh, Gujarat and Karnataka passed legislation to criminalise conversions for marriage, in the context of their conspiracy theory about 'love jihad'.
It should be reiterated that there is no evidence that 'love jihad' – ie a concerted practice of Muslim men pretending to be Hindu to woo Hindu women and then converting them to Islam for the sake of marriage – exists. The Modi government has itself said there is no data to back this up, and an NIA investigation in Kerala, where the conspiracy theory arose among the Christian community, also found no evidence for it.
However, the new laws enacted by these states are not exactly new.
Several Hindu princely states in pre-Independence India enacted laws to "preserve Hindu religious identity in the face of British missionaries". There were some attempts to get Parliament to pass an anti-conversion law soon after Independence, but they failed to get enough votes to be enacted.
However, as law and order is something state governments can legislate on according to the Constitution, a number of state governments passed anti-conversion laws over the decades, starting with Odisha in 1967 and Madhya Pradesh in 1968.
Ostensibly, these laws do not prohibit all religious conversions, but instead made conversion by misrepresentation, coercion, force, fraud or allurement, illegal.
Other states which enacted these laws prior to the 'love jihad' frenzy were Arunachal Pradesh (1978, but remains unenforced without any rules), Gujarat (2003), Chhattisgarh (adopted the MP version in 2006), Himachal Pradesh (2006 and then a stricter one in 2018), Jharkhand (2018) and Uttarakhand (2018).
Tamil Nadu did enact one in 2002 which was repealed after protests, and the Rajasthan Legislative Assembly twice passed such laws, but they did not get requisite consent from the Governor and the President.
The marriage-related anti-conversion provisions began with the Jharkhand version, which came about after the Jharkhand High Court suggested that that the state pass a law to prohibit “sham conversion only to facilitate the process of marriage.”
This was eagerly picked up in Himachal Pradesh and Uttarakhand soon after, and in 2021, Gujarat and Madhya Pradesh amended their existing laws to add this element. Uttar Pradesh became the ninth state to enact an anti-conversion law (which also prohibits conversion for marriage), while Haryana, Karnataka and Assam are also in varying stages of bringing such laws in.
WHAT ABOUT THE RIGHT TO PRACTICE ONE'S RELIGION IN ARTICLE 25?
Article 25(1) of the Constitution of India states that:
"Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion"
A law restricting conversion could be viewed as conflicting with this fundamental right, whether that of the person who is converting their religion, or even a person who encourages or facilitates their conversion.
However, that's where the wording of the laws, restricting their application to cases of coercion, force, fraud, allurement come in.
THE SUPREME COURT'S BLESSING FOR ANTI-CONVERSION LAWS
In 1977, the Supreme Court delivered a judgment in the Reverend Stanislaus case upholding the Odisha and Madhya Pradesh conversion laws, noting that Article 25 itself says that the right is 'subject to public order'.
According to the apex court, "if an attempt is made to raise communal passions, e.g. on the ground that some one has been "forcibly" converted to another religion, it would, in all probability, give rise to an apprehension of a breach of the public order, affecting the community at large."
This meant that state governments had the authority to pass legislation restricting conversions "in a manner reprehensible to the conscience of the community".
The judges also disagreed with the proposition that the right to profess, practise and propagate one's religion could include a right to convert others to one's religion.
Even though the 1977 judgment was delivered by a five-judge Constitution Bench, it has come to be viewed with a degree of scepticism, and more recent judgments suggest the courts might do things a bit differently when considering these kind of anti-conversion laws today.
At the outset, it should be clear that this isn't about conversions on the basis of force or fraud. Even without these states' anti-conversion laws, forcing someone or fraudulently converting someone would already be an offence under the Indian Penal Code.
The offence of criminal intimidation under the IPC would cover forced conversions, as it includes forcing someone to do something they are not legally bound to do, while any fraudulent activity could be covered under the offences of cheating and impersonation.
The problems with these 'freedom of religion' laws come from the following:
Vague definitions of allurement.
The new prohibitions on conversion related to marriage.
Requirements for any person intending to convert their religion to provide intimation to the district magistrate or some other local authority.
WHAT ON EARTH IS ALLUREMENT ANYWAY?
The Rev Stanislaus judgment of the Supreme Court doesn't address the three problems mentioned above. The latter two were not at issue in the Odisha and MP laws, so obviously they couldn't be covered.
However, in one of the damning indictments of the 1977 decision, it failed to consider the issue of allurement being vaguely defined even though this was argued before it.
This is a particularly thorny problem when it comes to the anti-conversion laws because even a basic explanation of what a religion has to offer could be considered allurement if one goes by the definition of the term in various state laws.
Take UP's new law, for instance, which defines allurement as including "any offer of any temptation in the form of ... better lifestyle, divine displeasure or otherwise". Such wording can be found in pretty much all these anti-conversion laws.
Many Dalits have converted to different religions because they believe they would be treated better there – would this not amount to a temptation of a 'better lifestyle'?
The vagueness of terms like allurement in anti-conversion laws allows them to be weaponised to make it seem like any conversion is illegal. This not only allows for harassment by the police, but is also used to whip mobs up into a frenzy to attack those believed to be involved in conversions.
Just this year, there have been attacks on Christian pastors in Raipur inside a police station in September, an attack on a Christian pastor and his family by a mob inside his home in Polmi, Chhattisgarh in August, and in March, Bajrang Dal goons harassed two nuns from Kerala and forced them to deboard a train.
When the Supreme Court delivered its decision in 1977, the doctrine of manifest arbitrariness had not really been developed. According to this, doctrine, which has been clarified in recent years, particularly through the judgments of Justice Rohinton Nariman, legal provisions which are vague and arbitrary are liable to be struck down for violating Article 14 of the Constitution.
"The test of manifest arbitrariness would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary – done with reason or rationality and out of personal will."Justice Rohinton Nariman in the triple talaq judgment (2017)
When the courts sit to examine the validity of these anti-conversion laws today (aspects of which have been challenged in high courts across the country and the Supreme Court), the vagueness of the concept of allurement will at least be subject to more scrutiny than it was in 1977 because of this development.
CONVERSION AND THE RIGHT TO PRIVACY
The other major development in the intervening years since the Rev Stanislaus judgment has been the affirmation of the right to privacy as a fundamental right by a nine-judge bench of the Supreme Court in 2017. The freedom to choose one's religion, for whatever reason short of coercion or misrepresentation, would certainly fall within the right to privacy.
This would arguably include changing one's religion for money or some other benefits as well. It would certainly include changing one's religion in connection with marriage, or because one thinks one's life would be better.
Once that is the case, it is difficult to see how the marriage and allurement provisions of these anti-conversion laws – which are of course those most open to misuse to target individuals – can be allowed to stand.
The Gujarat High Court recently stayed the operation of the marriage-related provisions of the Gujarat conversion law, holding that these prima facie created a new class of offences which had nothing to do with a lack of choice, as the original law was meant to address.
Nearly all the anti-conversion laws also require anyone intending to convert from one religion to another to give notice to the local authorities before doing so, which is also clearly a violation of the right to privacy as this is none of the state's business.
Even before the Supreme Court's right to privacy judgment in 2017, the Himachal Pradesh High Court had actually struck down these notice provisions in the 2006 anti-conversion law there in 2012, holding that this would violate the right to privacy.
COURTS HAVE NOT TREATED CHALLENGES WITH ANY URGENCY
However, it should be noted that at this point of time, apart from the Gujarat HC's stay on the marriage-related conversion provisions, all these state anti-conversion laws are in force.
As a result, as of now, there is nothing to stop the UP ATS, for instance, charging Maulana Kaleem Siddiqui with criminal offences under its 'freedom of religion' law even if he did nothing more than tell people that they would have a good life and go to heaven if they converted to Islam.
This does not mean they have committed a crime, of course, but the criminal case itself can be the punishment, regardless of an eventual acquittal. The potential that an anti-conversion law has for harassment can be seen in how the UP law has been used to harass Muslim men who are part of inter-faith couples.
Within a month of it being notified (initially as an ordinance) over 50 people had been arrested, nearly all of them Muslim. By July 2021, there were 80 people behind bars under the law, even after grants of bail, and over 162 people had been booked under the law.
It is unfortunate that the legal challenges to these anti-conversion laws have not been taken up with any urgency by the courts at this time, except to some extent by the Gujarat High Court – though that is only in connection with the marriage-related provisions.
Other challenges in the Allahabad and Madhya Pradesh High Courts, for instance, have seen no interim orders or developments in their hearings, just continuous adjournments.
In February 2021, the Supreme Court issued notice on a petition filed by the NGO Citizens for Justice and Peace (CJP), which had challenged anti-conversion laws in UP, Uttarakhand, MP and Himachal Pradesh.
No further hearings have taken place despite the petition noting the harassment faced by Muslim men because of these laws, and how the Himachal Pradesh government had enacted its new law with the same provisions that had been previously struck down by the high court.
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