Caught on camera: Muslim youth beaten in Surat college over 'love jihad' allegations (24 November 2022)
Agra Mob Set Muslim Man's Home On Fire Over Relationship With Hindu Woman (16 April 2022)
'Concocted Charges': Christians in UP’s Fatehpur Allege Harassment Over 'Forced Conversion' Claims (1 December 2022)
These headlines, from the last one year alone, indicate precisely how religious insecurity, not always grounded on reality, has swept through the country, leading to charred homes, harassment of citizens and attacks on teenagers.
Sample these now:
Video Of Police Raid In A Cafe In Agra Shared With False Communal Spin (28 August 2022)
Old Video Of Domestic Abuse Viral With ‘Love Jihad’ Spin (18 November 2022)
Evidently, amid all else, unverified information is being circulated with a communal twist.
And so one can't help but wonder why at a time like this, when people are being attacked over divisive pretexts that frequently percolate from fake-news, is the Supreme Court entertaining a petition seeking a nation-wide legislation to curb “forced” religious conversions.
Sure, a court can do as it feels fit, but given that there is no credible data yet to indicate that this country is truly grappling with the menace of "forced" conversions, one might argue that there is not much to look at in that direction either.
Besides, how best to assess if "forced conversion" is, indeed, a raging problem? How to discern what is "forced" and what isn’t?
After several states implemented their respective anti-conversion laws, the police in these states also rushed to file cases under these laws, leading to many arrests and forced separation of couples in consensual inter-faith relationships. But rarely have these cases resulted in conviction.
23 cases were registered within the first 23 days of the implementation of the anti-conversion law in Madhya Pradesh. But, as pointed out by Constitutional Law expert Faizan Mustafa in The Indian Express, Uttar Pradesh has so far seen under their Act which was enacted in 2020.
So, nearly no one who has been picked up for "forced" conversion, has so far been held guilty by a court of law. Yet these states vigorously defend their anti 'Love Jihad' laws, and the FIRs are aplenty.
What the Allahabad HC Said About Judgments Objecting to Religious Conversion
Back in 2020, the Allahabad High Court had thrown out a case, registered under abduction and kidnapping related sections of the IPC, as well as the POCSO Act, against a Muslim man who had married an adult Hindu woman after she embraced Islam.
The bench of Justices Pankaj Naqvi and Vivek Agarwal noted that —
“…if the law permits two persons even of the same sex to live together peacefully then neither any individual nor a family nor even the state can have an objection to the relationship of two major individuals who out of their own free will are living together…”
They also held that two prior judgments which had objected to religious conversion for the purpose of marriage
Supreme Court's Own Observations...
In Shafin Jahan vs Asokan KM and others (better known as the Hadiya case), the Supreme Court’s Justice DY Chandrachud had similarly observed:
“The Constitution guarantees to each individual the right to freely 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…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. They form the essence of personal liberty under the Constitution.”
This observation is especially pertinent when juxtaposed against ordinances (such as the one in UP) which criminalise religious conversion by marriage. It also raises questions about the Gujarat government’s justification for mandating permission from the district magistrate before any conversion.
While this permission rule was put in abeyance by the Gujarat High Court in 2021, the state government recently chose to justify it in an affidavit filed before the apex court, arguing that the objective of the enactment was to –
"maintain public order within the State of Gujarat by protecting the cherished rights of vulnerable sections of the society including women and economically and socially backward classes”.
We should recall how the Supreme Court had criticised the Kerala High Court, which had annulled Hadiya’s marriage, for invoking the Parens Patriae doctrine (in which the court acts as a guardian to those who can’t look after themselves).
The High Court had said that the woman, at twenty-four, was “weak and vulnerable, capable of being exploited in many ways”. But the apex court pointed that she was major (above 18 years of age), capable of taking her own decisions and entitled to the right recognised by the Constitution to lead her life however she pleased. It added:
“The concern of this court in intervening in this matter is as much about the miscarriage of justice that has resulted in the High Court as...(it is) about the paternalism which underlies the approach…reflected in the (High Court) judgment in appeal.”
Similarly, the Gujarat government’s contention that the purpose of their pre-conversion requirement is protection of women and members of economically and socially weaker classes, also reeks of paternalism. As pointed out by former Madras High Court Justice K Chandru in an article for The Quint:
“It is not as if women or members of economically and socially backward classes are so vulnerable that they require state supervision while accepting a new religion…To assume a woman or a person belonging to an economically or socially backward class as gullible and thereby, to question their ability to decide for themselves, is to act in a paternalistic manner. And this paternalistic attitude should be condemned.”
The Larger Picture: Beyond Couples in Inter-Faith Relationships
But it isn’t just couples looking to spend their lives together who are impacted by this hysteria around “forced” and "fraudulent" conversion. As mentioned in a plea filed by the Chhattisgarh Christian Forum:
“…various complaints and news reports of violent attacks, hate crimes and discrimination against Christian community (have been) reported in the state of Chhattisgarh.” This, the application says, is due to erroneous and false information of forced conversion of individuals in the state.
The application also lists allegations of a church built on private land being set ablaze; of groups of people forcibly entering a Christian prayer hall and making threats; members of the Christian community being socially boycotted, several of them pushed to “the verge of hunger and starvation”, in parts of the state.
Not even allowed a decent burial?
In December 2021, a woman had filed a complaint before the District Collector, Kanker (Chhattisgarh), alleging that she had been ostracised from the village for having converted to Christianity and she was not being allowed to bury the dead body of her husband on her private land. “Villagers threatened that if she tried to bury the dead body, they will bring JCB and dig it out,” the application says.
These allegations, if true, present a ghastly picture, not befitting a secular democracy. Given that all of the above may be a consequence of intensifying stigma pertaining to conversion, should the Supreme Court not act to quell the discourse?
How Have the Courts Reacted in the Past?
It is not as if the apex court has not considered these issues before. BJP leader Ashwini Kumar Upadhyay, the petitioner in the present matter being heard by the Supreme Court, seeking "stringent steps" to control "forcible and fraudulent" conversions, has raked up similar issues before as well. But the courts have reacted differently in the past.
In 2021, a Supreme Court bench headed by Justice RF Nariman had come down heavily on a similar petition by Upadhyay, saying:
“I do not see a reason as to why any person above 18 years cannot choose his religion. There is a reason why the word "propagate" is there in the Constitution.”
The judges had then also warned that they would impose a heavy fine if the petition wasn’t withdrawn.
Earlier in 2022, the Delhi High Court also told Upadhyay, while disposing of another one of his religious conversion petitions:
"(Religious) conversion is not prohibited in law. Every person has a right to choose and profess any religion of his/her choice. It is a Constitutional right."
But at the Moment...
The present bench, however, doesn’t appear to be in any haste to throw Upadhyay’s petition out. Instead they have clarified that they are not entertaining issues with regard to maintainability of the plea, and have directed the Union Government to source information from all States regarding the steps taken by them with regard to religious conversions.
Further, on Monday, the Supreme Court had orally remarked that the intention of charity "has to be checked" as it cannot be allurement.
Justice MR Shah, who is hearing the case along with Justice CT Ravikumar, had, according to Livelaw, said that alluring people to convert to other religions by offering medicines and food grains was a “very serious” issue. He also added:
"If you believe that particular persons should be helped, help them but it can't be for conversion. Allurement is very dangerous. It is a very serious issue and is against the basic structure of our Constitution. Everyone who stays in India, will have to act as per the culture of India."
Charity vs Allurement: How to Discern Fairly?
How the state can be expected to legitimately and fairly gauge the intent of a charitable act remains unclear.
Missionaries across the world run charitable homes for the destitute. Gurudwaras offer langar to everyone who is hungry. People of all faiths indiscriminately donate whatever they can in times of crisis.
And isn’t that the culture of India, and the essence of this nation’s secular fabric? That we can lean on and count on each other in times of adversity. That we blend into one strong cohesive unit when plagued with suffering. That we don’t to turn our back to someone who needs us. Anyone who needs us. Regardless of which specific God they pray to.
But should religious people then stop doing charity altogether in order to keep suspicion of allurement at bay? No one, after all, wants to get in trouble with the law. Least of all for doing a good deed. And given the hue and cry around conversion, wouldn’t that fear be greater today?
Our courts need to rethink if conversion (in whichever shape or form) is a greater menace or if inequality, poverty, hunger and starvation are.
What About Petitions That Challenged These 'Anti-Conversion' Laws?
Incidentally, petitions challenging various state-specific “anti-conversion” legislations are also pending before the apex court. They’ve been gathering dust since January 2021 when a bench headed by then Chief Justice of India SA Bobde had issued notice in the matter.
When the matter first came before him, CJI Bobde took notice of the fact that a similar challenge was pending before the Allahabad High Court and asked the petitioners to go there first. However, he changed his mind after he was informed by the petitioners' counsel that they were challenging the legislations enacted by two states.
This batch of petitions originally challenged the constitutional validity of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020 and the Uttarakhand Freedom of Religion Act, 2018. However, challenges to anti-conversion laws in Madhya Pradesh and Himachal Pradesh were also added later.
Recently, in November, present CJI Chandrachud assured the petitioners’ counsel that he would provide a specific date for the matter.
And we hope that date arrives soon, because these legislations are questionable in law, employed to strip individuals of their agency, and as the anecdotes cited above suggest, often used as a garb to harass members of the minority communities, as well as other citizens of this country.
Legal experts have also pointed out that these 'love jihad' laws are violative of our fundamental rights to privacy, liberty and freedom of religion. But read more about that here and here.
Meanwhile, the plea at the Allahabad High Court still remains pending. The Uttarakhand cabinet, on their part recently approved a proposal to amend their "Freedom of Religion Act" to make it even more stringent.
(With inputs from The Indian Express and Livelaw.)