February 27, 2022

India's Secular Fabric Under Siege

A A Rahim

INDIA has seen an increase in anti-minority far-right narratives in recent years. The country's top lawmaking body itself has become an apparatus that fundamentally operates against Muslim/Christian and dalit citizens, reinforcing their state of otherness and fostering communalism. Many parts of the country have witnessed incidents of lynching in the name of religion. Worryingly, in most of these cases the culprits are getting acquitted and even laws are being reframed in favour of such vigilantes. Similar legislative changes that violate the fundamental rights enshrined in the constitution are progressing without much deliberations in most of the states.

The very government which is responsible for safeguarding the constitution is indiscriminately hijacking the law to erode fundamental rights. This disastrous turn where laws are being used as a tool to infuse divisive policies in the name of religion has become the contemporary Indian reality. The words of Dr B R Ambedkar in one of the sessions of Constituent Assembly are painfully prophetic: “..however good a constitution may be, it is sure to turn out bad because those who called to work it, happen to be a bad lot.”

The recent demands of the sangh parivar organisations for urgent amendments in laws concerning religious conversions should be read along the same line. In the meeting of sangh parivar allies held at Hyderabad, they called for making the rules concerning conversions more stringent. They also demanded the revision of the existing 'black law' around religious conversion, considering it inadequate and lenient. Laws against religious conversion through force, betrayal and allurement already exist in many of the Indian states. This urgent demand for a modification in laws is purely rooted in divisive policies. By incorporating the concept of marriage within the purview of forceful religious conversion, they negate the possibility of non-religious marriages. Furthermore, these laws which are intended to promote violence and vigilantism can become instrumental in corroding the social fabric of our country. Laws of this nature are already in effect in the states like Himachal Pradesh, Uttar Pradesh, Madhya Pradesh, Arunachal Pradesh, Uttarakhand and Jharkhand.

The contentious Anti-Conversion Bill passed by the government of Karnataka clearly delineates the regressive agenda of the ruling BJP government. Contrary to the name, the   Karnataka Protection of Right to Freedom of Religion 2021, upholds policies against the Right to Freedom of Religion enshrined in Article 25, which ensures two rights in relation to freedom of religion to all the people of India. First, it guarantees freedom to profess, practice and propagate religion and second, it entitles the citizens of India to freedom of conscience.

The bill prohibits the conversion from one religion to another  “by misrepresentation, force, fraud, undue influence, coercion, allurement or by other fraudulent means. Allurement means and includes an offer of any temptation in the form of a gift, gratification, easy money or material benefit, employment, free education in school or college run by religious bodies”. A critical analysis of the parameters of the term 'allurement' reveals that it is highly vague, and this is pivotal. According to the current definition, gifting the Holy Bible or Quran can be regarded as a punishable offence. As it includes “a promise of marriage” as a means of “unlawful conversion”, it can also easily frame non-religious marriages as criminal offences attracting imprisonment.

However, the bill provides an exemption in the case of a person who "reconverts to his immediate previous religion" as "the same shall not be deemed to be conversion under this Act." It would essentially legalise the “ghar wapsi” campaign of the sangh parivar, ruling out the possibility of forcible reconversions. This is also a negation of the Right to Equality enshrined in Article 14 of the Indian Constitution.

As per the bill, complaints regarding conversions can be lodged by “any converted person, his parents, brother, sister or any other person who is related to him by blood, marriage or adoption or in any form associated or colleague.” By extending the right to lodge complaints against conversions to more people, it places the burden of proof, as to whether the conversion was by force, on the person converted or on people who “caused” or “facilitated” the conversion. All offences under the proposed law are cognisable and non-bailable. People or organisations involved in unlawful conversions will attract punishment of three to five years in jail and a fine of twenty-five thousand rupees. For unlawful conversions of more than one individual, the bill proposes a fine of up to one lakh. In the case of minors, women, persons belonging to Scheduled Caste and Scheduled Tribe or of “unsound mind,” the punishment will be three to ten years in prison with a fine of fifty thousand rupees. These clauses, narrated in the terms of legislation, are in line with the fascist logic of considering the women and the marginalised as mediocre and incapable of taking decisions.

A person who wishes to convert to another religion of their preference will have to undergo a series of complex procedures under this bill. Any such person and the person carrying out the conversion will have to inform the district magistrate at least 30 days in advance by submitting a declaration, which will be followed by an examination that seeks the public opinion or objection on the same. Post religious conversion, the person is directed to submit yet another declaration to the district magistrate within 30 days; breaching this deadline might result in the conversion being declared null and void. In this sense, the bill curtails the fundamental right of a person to practice a particular religion of his/her choice by confining the will of the person to public opinion and the concerned government official's assent.

The provisions of the bill invariably allow an individual, a group or even the public to thwart a citizen's religious autonomy and faith. It is ironic that the bill validates public interrogation, inquisition, and judgment with regards to an Indian's freedom of choice. During colonial rule, the British administration had made it mandatory for the people belonging to the Hindu community at Rewa in Madhya Pradesh to acquire the government's prior permission for being converted to Muslim. Gandhi vehemently criticised the colonial intervention in an adult's religious preferences by stating that it was extremely regressive to burden an individual with the task of convincing the colonial administration of his/her intention pertaining to converting to a religion of that person's choice. Such arbitrary provisions invalidate Ambedkarite principles of religious faith as well.

In the debates on the right to freely preach and propagate religion during the making of the constitution, two predominant thoughts came to prominence at the Drafting Committee. The first one argued that the right to religious autonomy should exclusively be confined to religious minorities alone and the parameters of such propagation ought to be strictly within the boundaries established by majoritarian religious communities. The second perspective observed the right to religious freedom as an essential aspect of an individual's spiritual faith and conscience. The significant distinction between the two is that while the former linked religious autonomy to a group or community, the latter upheld it as an individual's articulation of personal autonomy. The architects of the Indian Constitution strongly believed that religious faith was invariably an individual and personal choice, enshrining it as one of the fundamental rights. Various Anti Religious Conversion Bills and Acts that have emerged in states like Karnataka are in violation of the fundamental structure of the constitution.

If the apex court is approached to examine the constitutional validity of the Karnataka Protection of Right to Freedom of Religion Bill 2021 once promulgated, the concerned government will be relying on the verdict of the Stanislaus case. It is remarkable that the drawbacks of the ruling on the Stanislaus case have been emerging from various high courts in the light of the legislation of such capricious laws. For instance, the Himachal Pradesh High Court struck down the penal provision in the Himachal Pradesh Religion Act 2006 under which a person failing to provide due to intimation prior to religious conversion could be penalised. Furthermore, the high court observed that “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.” In this scenario, legalising to exhibit a person's desire to convert to another religion on a noticeboard is unconstitutional. Such arbitrary pieces of legislation, the court underscored, will lead the country back to the regressive middle-ages.

Imposing an interim stay on the provision that penalised religious conversion pertaining to interfaith marriage, the Gujarat High Court observed that all inter-religious marriages cannot be viewed with suspicion and fear. Uttar Pradesh Chief Minister, Yogi Adityanath quotes Allahabad High Court's assent to the single-judge bench ruling in Priyanshi versus State of UP in support of the anti-conversion rules implemented in his state. However, in 2020, in Salamat Ansari versus State of UP, the division bench denounced the previous ruling on Priyanshi case. The country's various high courts' similar observations on anti-conversion laws indicate that the five-member bench ruling on the Stanislaus case may be re-examined by the supreme court in near future. The pivotal ruling on the 2017 Justice K S Puttaswamy (Retired) versus Union of India case by the nine-judge bench of the supreme court also suggests the same. The historical significance of this supreme court judgment rests upon the emphasis of privacy which is a constitutionally guaranteed right, thereby referring to varying contexts that come from other facets of personal life choices like marriage, food preferences and so on.

A critical examination of the anti-conversion legislation initiated by various state governments is necessary in the light of Puttaswamy verdict.  Discussion on anti-conversion laws should not be classified as a Muslim or Christian issue. It is a complex subject that has the potential to hamper the future prospects of the secular and pluralistic fabric of India. It is essential to address this issue as it can destroy the secular values that the country upholds.