Guest Post: Why the new anti-conversion laws are unconstitutional

[This is a guest post by Manish.]

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The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 (“the UP Ordinance”) – and the spree of police action following it – has attracted much attention recently. The UP Ordinance follows existing legislative terrain: several states in India have (dubiously-named) “freedom of religion” laws that seek to restrict religious conversion. The first two of these were enacted in the 1960s, in erstwhile Madhya Pradesh and Orissa, and restrict or seek to penalise people who conduct or facilitate religious conversions by force, fraud or inducement. The rest have largely come in the 2000s, and go a step further by requiring an individual to take prior permission for conversion. The UP Ordinance goes the furthest, by altering the conversion’s effects on personal law, and through certain insidious procedural requirements which will be discussed later. But first, a history of the earlier legislation and legal challenges is in order.

Readers will be familiar with Article 25 of the Constitution, which guarantees equally to all persons the freedom of conscience and the right to freely profess, practice and propagate religion, subject to public order, health and the other provisions of Part III. The MP and Orissa laws were challenged, first at the respective High Courts and then the Supreme Court, as violating the propagation aspect of Article 25. A Constitution Bench of the Supreme Court, in its landmark Stainislaus judgment in 1977, upheld them as being valid exercises of legislative power under the public order exception to Article 25, holding that the right to propagate one’s religion did not include the right to convert others, and that forcible conversions could raise communal passions and give rise to a breach of the public order. This much is a fairly clear and settled proposition. (Whether it should be unsettled is beyond the scope of this blog post.)

That brings us to the first set of post-2000 laws, leading up to the UP Ordinance. These laws go beyond the mere prohibition of forced religious conversion (which was permitted in Stainislaus) by requiring individuals desirous of changing their religion– in addition to people facilitating the conversion, such as religious preachers – to provide prior notice to, or take permission from, the District Magistrate, under fear of penal consequences. Alert readers will notice that this requirement opens up a new Constitutional infirmity – because unlike the challenge in Stainislaus, which was restricted to propagation, it strikes at the right to profess religion under Article 25. This, it is submitted, really forms the core of the right guaranteed under Article 25  – the freedom of conscience – for without the right to profess religion, the right to practice or propagate it becomes meaningless.

For analysis of this point, I will focus on the Himachal Pradesh Freedom of Religion Act, 2006 (“2006 Act”), which is the only one that has been subject to judicial scrutiny. It was challenged before the Himachal Pradesh High Court, which in a lucid 2012 judgment found that the notice requirement under section 4 violated both the freedom of conscience and the right to privacy of the individual. The Court effectively laid down a “compelling state interest” test to justify any interference into this right (paragraphs 37-38):

“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. The State must have material before it to show what are the very compelling reasons which will justify its action of invading the right to privacy of an individual. A man’s mind is the impregnable fortress in which he thinks and there can be no invasion of his right of thought unless the person is expressing or propagating his thoughts in a manner that it will cause public disorder or affect the unity or sovereignty of the country.”

The Court rejected the argument of public order advanced by the State, holding that public disclosure of conversion could in fact cause public order issues and be counterproductive (paragraphs 40-41):

A person’s belief or religion is something very personal to him. The State has no right to ask a person to disclose what is his personal belief. The only justification given is that public order requires that notice be given. We are of the considered view that in case of a person changing his religion and notice being issued to the so called prejudicially affected parties, chances of the convertee being subjected to physical and psychological torture cannot be ruled out. The remedy proposed by the State may prove to be more harmful than the problem. (…) In case such a notice is issued, then the unwarranted disclosure of the voluntary change of belief by an adult may lead to communal   clashes   and   may   even   endanger   the   life   or   limb   of   the convertee.

Also important here is the Court’s finding that a bland declaration of “public order” (while itself possibly a compelling state interest) was insufficient to justify invoking the exceptions to Article 25. This, in effect, applies the strict scrutiny standard which the Supreme Court had articulated in Gobind v State of MP as far back as 1975 – requiring the state to both show a compelling interest, and adopt the most restrictive means to achieve it (relevant extracts of Gobind are cited in para 32 of the judgment). In this case, the court held that the means adopted did not achieve the interest at all, let alone in the most restrictive manner.

These findings in 2012, are strengthened by the Supreme Court’s nine judge bench Puttaswamy judgment in 2018, where decisional autonomy was articulated as an integral aspect of privacy in all the opinions delivered. In fact, the 2012 judgment is an excellent illustration of how the right to privacy is inherent in the expression of all other fundamental rights, and is one of the first to look closely at privacy in the context of Article 25 (most of the jurisprudence on this Article so far has been around the practice element, and the profession and propagation aspects in that sense offer new ground – one that is largely free of the ERP clutter).

While the substantive right is clear, it could be argued that procedurally, Puttaswamy eschewed Gobind’s strict scrutiny standard for testing infringement (adopted by the HP HC) in favour of a slightly less stringent proportionality test. Even then, the prior notice requirement in the 2006 Act and similar laws would fail the latter three prongs of the four-fold test articulated by Kaul, J in Puttaswamy: there is no justification as to why prior notice (in addition to the criminal penalty) is necessary to prevent forced conversions; the requirement is disproportionate and in fact could prove counterproductive; and there is no procedural safeguard – to the contrary, many of the newer anti-conversion laws contain reverse onus clauses. 

The 2006 Act also contained a proviso (to section 4) carving out an exception in case a person “reverts back to his original religion”. The Court held that this exception violated Article 14 as well, being both vague (since “original religion” was not defined) and arbitrary (since there was no reason for treating these two classes of conversion separately). It struck down the entirety of section 4 and the Rules framed thereunder. In sum, neither of the additions after Stainislaus – a prior notice/permission requirement, and an exception for “re-conversions” – could withstand Constitutional scrutiny.

With that background, let us look closely at the various elements of the UP Ordinance. Section 3, which contains a general prohibition on forced conversion, is on the lines of the ones upheld in Stainislaus. The proviso to section 3, however, carves out an exception for conversion to one’s “immediately previous religion” – while slightly less vague than the 2006 Act, it is, for the same reasons, arbitrary and fails the Article 14 test. There is also a requirement for prior notice (section 8) and public declaration (section 9) before and after conversion, both of which, as will be clear from the preceding discussion, are egregious violations of the right to privacy inherent in Article 25.

That leaves us with a couple of new provisions introduced by the Ordinance – the substantive one, section 6, which has been the subject of much public discourse, states that conversion for the purposes of marriage will render the marriage voidable, on the application of either party. While section 6, like many others in the UP Ordinance, is poorly drafted (what is a “marriage done for sole purpose of unlawful conversion”?), it only contemplates a civil proceeding, which can only be initiated by one of the parties to the marriage. Seen this way, it is the least suspect of the Ordinance’s provisions – in fact, the Supreme Court has previously deprecated, in its personal law jurisprudence, the practice of conversion solely for the purpose of marriage.

On the other hand, the most insidiously problematic part of the Ordinance is actually a procedural one, section 4, which permits registration of an FIR not just by the victim of the alleged conversion  but also by the parents, siblings or any other relative, even if the victim is a major. This is a body blow to personal autonomy, and is being used – as seen in several instances of complaints being lodged by everyone except the ‘aggrieved’ convert – to strip young women of their autonomy to decide both their religion and choice of partner. Indeed, the UP Ordinance is less of an attack on inter-faith marriage per se (technically, if one of the parties converts, it is doubtful whether the union remains an inter-faith one) than it is on the autonomy of youth–especially women–who dare to defy the social order.

As discussed earlier, decisional autonomy is a core element of the right to privacy as articulated in Puttaswamy. And even if the object of preventing forced conversion and maintaining public order is legitimate, the means certainly are disproportionate. There is one point of clarification required here: conventional criminal jurisprudence tells us that all crimes are committed against the State, which is what gives any member of the public the right – and sometimes the duty – to report an offence. But a forced conversion is more than just a simple criminal offence – it is also a violation of a Fundamental Right to make an intimate decision. And for an intimate decision, nobody else is quite placed to judge the violation than the victim. Putting it another way, if she has decisional autonomy, then this autonomy also empowers her, and her alone, to decide if and when it has been violated. To substitute her decision for anybody else’s (whether family or otherwise) would in itself amount to a (further) violation of her privacy. The only necessary and proportionate manner of solving this would be to permit the victim to report the violation herself, and take assistance from others if she feels the need to (which is anyway allowed under ordinary criminal procedure). Thus, section 4, in empowering third parties to make this decision on an adult convert’s behalf, without her consent, takes away her decisional autonomy; in an unnecessary, disproportionate action.

To sum up, changing one’s religion is an act of intimate decision making, and there are a limited number of restrictions that can be placed on it, on the specific grounds provided in Article 25. If forced conversions present a problem to public order, that creates a necessity for intervention which must, however, be achieved through a proportionate remedy. Such a remedy can only be provided by making legal recourse available to the victim without overbroad substantive or procedural provisions that further infringe the rights of the victim or other parties. Thus, it is submitted that the laws upheld in Stainislaus mark the furthest limit to which an infringement is permitted into the profession and propagation aspects of Article 25. Anything beyond that, whether couched in “freedom of religion” terms or marketed as “unlawful conversion”, is unconstitutional. The Allahabad HC has struck the right note in respect of the UP Ordinance by invoking privacy in interim orders, and it must take that to its logical conclusion by speedily dealing with the substantive challenge as well.

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Postscript: Similar constitutional infirmities exist in all the other post-Stainislaus anti-conversion laws. A 2009 petition challenging a similar law in Gujarat remained undecided till 2015 when the petitioners inexplicably withdrew it. A law passed by the Jharkhand assembly in 2017 is yet to be challenged in court – although it is apparently being after reviewed after a change in government. In Rajasthan, which has no such law, the High court inexplicably issued ‘guidelines’ in 2018 that have been previously critiqued on this blog. The HP Assembly in 2019 replaced the 2006 Act with a new law which reinstated virtually all the provisions that had been struck down earlier. The UP ordinance itself is based on similar provisions in the Uttarakhand Freedom of Religion Act, 2018, which has been challenged in the Supreme Court. If the HP HC’s decision – and subsequent developments in Puttaswamy I – are taken into account, all of these enactments are clearly ultra vires, and must be challenged and struck down. Their continuing enforcement is a stain on the Constitution.