The Constitution guarantees to the individual, subject to public order, morality and health, the freedom to practice and profess a religion of one's choice. In recent times, various states have enacted laws restricting the enjoyment of these freedoms. A few states (Odisha, Madhya Pradesh, Arunachal Pradesh, Tamil Nadu etc.) have historically had anti-conversion laws for decades. Laws regulating religious conversions have existed even in the pre-independence era. Several princely states including Jodhpur, Bikaner, Udaipur and Patna too, regulated religious conversions. Under the Raigarh State Conversion Act of 1936, a person seeking to convert was obliged to apply prior to the conversion.
Before 2017, however, none of these laws had any connection with marriage.
In 1977, a Constitution Bench of the Supreme Court in Rev. Stainislaus Vs. St. of MP upheld (Odisha and MP) Acts prohibiting religious conversions by "use of force or by inducement or by any fraudulent means". The new anti-conversion laws (HP Act of 2019, UP Act of 2021, Gujarat Amendment Act of 2021, MP Act of 2021), although in conformity with this 1977 Judgment, are inter-alia intimidatory and fatally invade several rights and freedoms of an individual.
Post Puttaswamy in 2017, the rights guaranteed under Article 21 have witnessed a considerable expansion, marking another watershed era in Indian constitutional law. Various unclaimed safeguards of the previous era have now attained the status of protected fundamental rights. Close on the heels of these new protections being added to the fundamental right of life and liberty in the last few years, several states have almost contemporaneously enacted anti-conversion laws which make daring attempts at infringing these newly accorded rights.
In 1962, the Supreme Court was not impressed with Kharak Singh when he claimed that domiciliary visits under the UP Police Regulations impinged his rights under Article 19(1)(d) and guarantee of 'personal liberty' under Article 21. By a majority of 4:2 the Supreme Court- the ultimate protector of the rights of the individual, then held that the right to privacy could not be claimed as a fundamental right. Justice Subba Rao's great dissent in this Judgment, holding that a person's house where he lives with his family is his castle, was yet to become law. The guarantee of individual liberties has since proudly marched a long but glorious road. With the Supreme Court's authoritative and landmark pronouncement in Puttaswamy and its recognition of the individual's right to privacy, decisional autonomy etc. as facets of Article. 21 is historic.
Today, in the expanded scope of Article 21, protection is afforded to inter alia the right to privacy (individual, decisional, sexual and behavioural autonomy etc), the right to human dignity, the right to marry a person of choice etc. In this background the new enactments have dared an uncanny encroachment on some of these rights.
The American concept of due process was earlier rejected by the constituent assembly. The Supreme Court too, repeatedly rejected its application between 1950 (AK Gopalan's case) to 1978. After the 1978 verdict in Maneka Gandhi's case it was, however, introduced as an Article 21 safeguard. It exists today as one of the fundamental sources of inquiry in a challenge predicated on violation of Article 21 and warrants not only the procedure but also the substantive law to be just, fair and reasonable. The 1977 Supreme Court Judgment of Rev. Stainislaus, is prior to the Maneka Gandhi era and the law and procedure impugned in that case were not tested on the yardstick of the just, fair and reasonable test.
The law and the procedure prescribed under the new anti-conversion laws is patently unconstitutional. They are neither just, nor fair nor reasonable. The UP Act of 2021 for example, requires anyone "who desires to convert his/her religion", to be subjected to the gruelling scrutiny of the Act. It matters little if the proposed conversion is without the aid or influence of any intermediary/ "religion convertor." For example, a person who himself and by his own readings is enlightened by the appeal of a religious belief, cannot convert without recourse to the state. The rigours contemplated under the Act kick in with the requirement to submit a declaration in a prescribed form at least 60 days prior to the conversion [S. 8(1)]. Followed by a police inquiry to ascertain the "real intention, purpose and cause of the proposed conversion." Failure to furnish a declaration by itself, carries a prison sentence which may extend to 3 years, even when the conversion is of an individual's free volition and is devoid of any influence. Offences under the Act are made cognizable and non-bailable. Arrest, therefore, is inevitable, for failure to submit a declaration simpliciter. Furthermore, the procedure of prior declaration, police inquiry etc. by itself is patently unconstitutional in as much as it restricts the free enjoyment of the Article 25 right to practice and profess a religion.
The enactment is further manifestly arbitrary since it is not only the alleged accused in a case of unlawful conversion (religion convertor), but also the victim of such alleged unlawful conversion who will be subjected to the rigorous inquiry of the law. While the ostensible objective of the enactment is the "prohibition of unlawful conversion," the act in effect trains its peering eyes on every lawful conversion even if based on an individual's free volition.
Similar provisions are contained in the HP and Uttarakhand Acts as well. While the MP Act does not contemplate a police inquiry, it warrants a declaration to be furnished prior to the conversion. In Jharkhand, while a person converting of his free volition is not subjected to the Act, a religion convertor has to seek a prior permission from the District Magistrate.
The statutory overkill of the UP Act is manifest from the following steps: requirement of a 2nd declaration, post-conversion, within 60 days to the DM, public notice of this declaration (the declaration includes personal details like fathers name, residential address, original religion, date and place of conversion and nature of process for conversion) on the notice board till the date of "confirmation", personal appearance before the DM of the converted person within 21 days of the 2nd declaration to confirm the contents of this declaration. Recording of details and any "objections" received by the DM. Failure to furnish the 2nd declaration and the consequent steps will result in "rendering the conversion illegal and void." These provisions are not found in any other Anti-Conversion Act. In contrast, a reconversion back to the first religion, is not an offence and carries no penalty whatsoever.
In other words, the state has legislated to usurp the decisional autonomy and free agency of the individual and take unto itself the power to choose for the individual the God he or she shall consciously follow. Both, the law and procedure prescribed are inter-alia violative of the Maneka Gandhi test, are excessive, capricious, manifestly arbitrary and thereby unconstitutional.
The UP Act of 2021 prohibits exercise of "undue influence" for conversion. Undue influence has been defined in S. 2(j) as "the unconscientious use by one person of his/her power or influence over another in order to persuade the other to act in accordance with the will of the person exercising such influence". The term "unconscientious use" is fraught with uncertainty and vagueness. The Supreme Court in 1971 in the Judgment of K.A. Abbas has held that a vague law if it affects fundamental rights is bad. This was followed recently in the celebrated Shreya Singhal Case where it was held that a penal statute would be void for vagueness if it fails to define the criminal offence with sufficient definiteness. Ordinary people and those who administer the law, should be able to understand what conduct is prohibited and what is permitted.
Yet another shocking encroachment is in the protected personal sphere of an individual's right to an inter-faith marriage. It has historically been prevalent for individuals from different faiths to freely convert to adopt the faith of the one they love and choose to marry. Penalizing conversion for marriage is manifestly arbitrary and deprives an individual of the freedom to practice and profess a religion of choice.
Section 6 read with Section 3 of the UP Act makes an inter-faith marriage void, if the conversion either before or after a marriage, is for the sole purpose of the marriage. Similar provisions exist in the Madhya Pradesh, Uttarakhand, Gujarat Acts. It must be remembered that what the Supreme Court upheld in the Judgment of Rev. Stainislaus was the states prohibition of forcible conversions on the grounds of fraud, allurement and force. That Judgment never gave a licence to prohibit religious conversions based on free will and exercise of an individual's conscious choice, if even for purposes of marriage. An individual consciously, and of its free will choosing to embrace the religion of their prospective partner, either before or after marriage cannot be regulated or prevented by state or any fiat to do so. The opposite would be grossly obstructive of the natural rights of a human being and the violation of the constitutionally guaranteed freedom of conscience. By enacting these controversial laws, the deep and pervasive interference by the state in the extremely personal arena of the freedom of conscience, the right to practice religion, the right to choose a life partner, right to make choices fundamental to one's existence is an anathema to the rights under part III of the constitution.
The Supreme Court and various High Courts are seized with petitions challenging these Acts. Recently, the Gujarat High Court in a challenge to the Gujarat Amendment Act, 2021 vide its order dated 19-08-2021in Jamiat Ulama-e- HindGujarat v State of Gujarat (R/Special Civil Application No.10304/21) has stayed the operation of certain sections of the Amendment Act and held that an inter-faith marriage without force or allurement or by resort to any fraudulent means cannot be termed as a marriage for the purpose of unlawful conversions. The Court further observed that the Amendment interferes with the intricacies of marriage and the right to the choice of an individual in an interfaith marriage between two consenting adults.
In India, there is a presumption of constitutionality of laws. Courts employ various tests to examine constitutionality of a provision. One such test in the United States is the strict scrutiny test applied in the cases of 'suspect classifications' or laws dealing with race, religion, national origin and alienage which was first suggested in the celebrated footnote 4 in the Judgment of Justice Stone in US V. Carolene Products Company (304 US 144). Under this test the state must demonstrate that it has a compelling interest in the distinction, in the present case -religious conversions based on free will relating to marriage, and that this classification is narrowly tailored to achieve that purpose (Plyler V. Dough 457 US 202). In India, a Constitution bench of the Supreme Court in Ashoka Kumar Thakur, 2008, while dealing with reservations has rejected the application of this test on account of the existence of provisions for affirmative action in our Constitution. A bench of co-equal strength in Saurabh Chaudhary, 2003, however, has held that this test may be resorted to if the impugned legislation is ex-facie found to be unreasonable or if "by reason of a statute the life or liberty of a citizen is put in jeopardy." The background discussed above makes a fit case where our Supreme Court should now employ the strict scrutiny test and require the state to demonstrate that curtailment of the fundamental rights of the individual is justified.
The effect of the impugned enactments is a statutory onslaught on the individuals natural and fundamental rights which ex-facie imperil the life and liberty of an individual. They have a chilling effect on an individual's fundamental right to practice and profess religion and the freedom of marriage. By imposing hurdles of declaration, police inquiry, publication of declaration, interference of non-state actors by granting opportunity to objectors etc., severe restrictions are imposed on the free enjoyment of these fundamental rights. Article 13 of the Constitution prohibits the State from making any laws that take away or abridge the rights conferred by Part III. It also mandates that any law made in contravention of that clause shall be void. Various Constitutional Courts are dealing with a challenge to these laws. The States have acted, albeit in breach of the law. It is time for the Courts to act and undo that breach.
The author is an Advocate in the Supreme Court. Views are personal.