(This is a guest post by Vasudev Devadasan.)
Last month in Chirag Singhvi v State of Rajasthan the Rajasthan High Court was faced with an increasingly common set of facts. Chirag Singhvi filed a habeas corpus petition arguing that his sister Payal Singhvi had been kidnapped, forcibly converted to Islam, and compelled to marry a Muslim man. The claims regarding the kidnapping were rendered questionable when Payal Singhvi appeared in court on her own volition and it came to light that she had filed a complaint of her own. She claimed to have both converted to Islam and married on her own free will and was being harassed by her brother and father. Nonetheless, the High Court noted that she was born and raised a Jain and thus decided to examine whether an individual must complete a specific procedure before they can convert from one religion to another.
What sets the Chirag Singhvi case apart from the dozen other cases with analogous facts is that the Court took it upon itself to frame certain guidelines regulating how and when a person can convert from one religion to another. While the guidelines re-affirm the right of individuals to change religion, they also impose certain troubling conditions regarding notice and publication. Specifically:
- The person, who is desirous to change his/her religion, shall give information to the District Collector/SDM/SDO of the concerned city and Sub-Divisional Area before conversion of religion.
- The District Collector/SDM/SDO shall put such information upon the Notice Board of its office on the same day.
- The person, who has converted his religion from one religion to another religion, shall solemnize the marriage/Nikah after one week of such conversion of religion.
By requiring individuals to provide public notice of religious conversion the Court’s guidelines raise troubling questions about the right to privacy, the freedom of association, and ultimately the freedom of conscience and propagation of religion. In this post I examine how anonymity is a crucial element in exercising the freedom of association, including religious association, and the potential harms of requiring the disclosure of religious conversions.
Before proceeding further, it would be wise to quickly recap the context in which the Chirag Singhvi decision came out. In 2006 the Rajasthan Assembly passed the Rajasthan Dharma Swatantrya Act which made religious conversions made on the basis of “allurement” or “inducement” an offence. The Act did not get the assent of the Rajasthan Governor, who reserved it for the President’s assent. The Advocate General raised some concerns and finally the matter was passed on to the Home Department. The law has still not received the President’s assent. Rather than let the checks and balances of the constitutional scheme operate, the High Court noted that the State Government was “very serious to frame certain rules to govern conversion” and thus thought it more expedient for the High Court to frame guidelines itself. The High Court did not examine why the Act might not have received the Governor or the President’s assent, nor did it even seem concerned that it had not. It merely noted tha the guidelines would be in force until the Act did come into force. What happens if the Act or other regulations do not receive the President’s assent is one left unanswered by the High Court.
The question of religious conversion also has some context. In Stanislaus v State of Madhya Pradesh, the Supreme Court upheld Madhya Pradesh and Orissa’s legislations which criminalised ‘forcible religious conversion’. The Court said that although Article 25 protects the rights of people to “propagate” their religion, it does not allow an individual to convert somebody else to his or her religion. In the Courts own words, “if a person purposely undertakes the conversion of another person to his religion, […] this would impinge on the “freedom of conscience” guaranteed to all the citizens of the country.” This understanding seems to misconceive the reason why religious ideas are disseminated. They are not disseminated, or ‘propagated’ to increase social awareness of a religion, but to engender in individuals the moral conviction that results in conversion. Article 25 thus protects the right to “propagate” religion by individual A, and also protects the “freedom of conscience” of individual B to choose any of the religions being propagated. Thus, disseminating one’s religious ideas to convert others is not an interference with their religious freedom, but rather gives meaning to their “freedom of conscience”.
Coming to the Rajasthan High Court’s guidelines, they go further than the legislations in Madhya Pradesh and Orissa did. The legislations of those two states required the person conducting the conversion ceremony to notify the relevant authority in the event they thought the conversion was coerced. However, the guidelines in Rajasthan require the individual converting to himself/herself give notice of conversion, and by displaying it in public, allowing anyone to object to the conversion.
The right to anonymous association
By requiring that individuals disclose when and which religion they intend to convert to, the guidelines place a restraint on the individual’s freedom of association (included here is their religious association), and thus on their freedom of religion. For example, if an individual intends to convert to a religion whose members have been the victims of persecution, requiring the individual to publicly acknowledge their intention to convert may dissuade him or her from converting because of the risk of persecution. However, if you allow them to convert privately, they may happily do so. We would all balk at the idea of members of a religion being compelled to publicly identify themselves (for example, during the Nazi occupation of Poland, Jews were required to wear white armbands with the Star of David). Requiring individuals who intend to convert provide public notice similarly infringes on this crucial relationship between the “freedom to associate and the privacy of one’s associations”.
The U.S. Supreme Court highlighted this exact problem when the State of Alabama demanded that the National Association for the Advancement of Coloured People (NAACP) disclose its list of members. In NAACP v Patterson, the Court held that by compelling the disclosure of the NAACP’s membership lists, Alabama was violating the privacy of group association which was essential to the freedom of association. The Court stated that, “we think it apparent that compelled disclosure of the petitioner’s membership is likely to affect adversely the ability of petitioner and its members to pursue their collective effort to foster beliefs which they admittedly have the right to advocate.”
The Court stated the obvious, that disclosure would dissuade individuals from joining the NAACP as they may face reprisal due to their membership. Crucially, the Court went on to hold that it did not matter that this reprisal was not from the government and may have been from fellow citizens. The Court noted:
“It is not sufficient to answer, as the State does here, that whatever repressive effect compulsory disclosure of names of NAACP’s members may have upon participation by Alabama citizens in NAACP’s activities follows not from state action, but from private community pressures. The crucial factor is the interplay of governmental and private action, for it is only after the initial exertion of state power represented by the production order that private action takes hold.”
Therefore, it should not matter that an individual facing discrimination or violence due to their conversion to a religion does not face this hardship at the hands of the State. By requiring public notice of conversion, the government is opening up these individuals to the risk of reprisal for actions that they have a constitutionally protected right to pursue.
Treatment in India
The requirement for public notice as espoused by the Rajasthan High Court has in fact been explicitly struck down by both the Himachal Pradesh High Court, and the Delhi High. In striking down the requirement of public notice prior to religious conversion in the Himachal Pradesh Freedom of Religion Act, Justice D. Gupta stated, “A person not only has a right of conscience, the right of belief, the right to change his belief, but also has the right to keep his beliefs secret” (See Evangelical Fellowship of India v State of HP). The Court also noted that the government failed to show how requiring people to publicly disclose their conversion to another religion would in any manner stop, or even reduce forcible religious conversions.
The Delhi High Court also had similar observations regarding the notice requirements in the Special Marriages Act (SMA). While each religion in India has its own set of marriage laws, the SMA allows for inter-religious marriage. Prior to marriage however, there was a requirement to publicly disclose the inter-religious marriage by a notice at the residence of both the husband and the wife to-be. The Delhi High Court struck down this requirement stating that requiring individuals to disclose their marriage to the public was a violation of their right to privacy. As in the two cases above, the Court is affirming the right to privacy that individuals have regarding their associations. This anonymity in association is essential to the meaningful enjoyment of the “freedom of conscience” that Article 25 guarantees. The Court also noted, “The unwarranted disclosure of matrimonial plans by two adults entitled to solemnize it may, in certain situations, jeopardize the marriage itself. In Certain instances, it may even endanger the life or limb of one at the other party due to parental interference.”
The case of Chirag Singhvi and countless others is a testament to the fact that the fears of the Delhi High Court were well founded. By requiring individuals to disclose their association on marriage or religion, the State violates their right to privacy and puts them at risk of social persecution.
It is pertinent to note that these decisions were all prior to last year’s landmark Right to Privacy judgement. In Puttaswamy the Supreme Court emphatically asserted that the right to privacy protects an individual’s “choice of preference” on matters of religion, and stated, “The constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom, to express or not express those choices to the world.” (⁋169) Requiring that individuals provide public notice of their intention to convert from one religion to another seems to fall foul of this right to anonymously practice one’s religion articulated by the Supreme Court, and places the guidelines in a rather dubious position.
The Rajasthan High Court cited the Law Commission’s 235th Report as evidence of the rising problem of religious conversions, and the need to regulate them. It is true that the Law Commission did lay down certain guidelines, but it prefaced these guidelines by stating, “statutory prescription of procedure to establish conversion or nature of proof required is neither desirable nor practicable”. The High Court may have enacted the guidelines in the hope of reducing litigation of the kind in Chirag Singhvi, but such cases centre around the appreciation of evidence, something no statute or guideline can ever achieve. After examining the FIR, the various statements, and the testimony of the Molvi, the Court dismissed the case by stating that Payal Singhvi and Faiez Modi are free to go and “at liberty to live their life as per their choice.” If only the Court had extended this courtesy to the rest of the residents of Rajasthan.