No one should be forced to hold on to a particular religious belief that he or she does not value any more. No one should be forced to stop the spiritual benefits of other religion, just because someone is born in a particular religious community.
Michael Anand OFM
Karnataka is yet another state that has vehemently pushed through the much debated, opposed and ill-intended law on anti-conversion. Prior to the state of Karnataka, that joined the undesirable list on 17th May, 2022, there have been state-level ‘freedom of religion’ statutes, known as ‘Anti-conversion laws’, in nine states -Uttar Pradesh, Himachal Pradesh, Gujarat, Chattisgarh, Odisha, Madhya Pradesh, Arunachal Pradesh, Uttarakhand and Jharkand. Odisha was the first state to enact such a law in 1967, followed by Madhya Pradesh in 1968. The law in Arunachal Pradesh has not been implemented due to lack of subsidiary rules; while Rajasthan has passed an anti-conversion bill that has not yet received the President’s assent. Some other states, such as Manipur, are considering similar laws. The state of Tamil Nadu previously brought about such a law in 2002 and subsequently repealed the same in 2006 due to continuous protests by the religious minorities.
The state of Karnataka has implemented the law through an ordinance, called “The Karnataka Protection of Right to Freedom of Religion Ordinance”, (No2 of 2022). The official notification states that it is “An Ordinance to provide for the protection of the right to freedom of religion and prohibition of unlawful conversion from one religion to another by misrepresentation, force, undue influence, coercion, allurement, or by any fraudulent means. Whereas the Karnataka Legislative Assembly and the Karnataka Legislative Council are not in session and the Hon’ble Governor of Karnataka is satisfied that the circumstances exist which render it necessary for him to take immediate action to promulgate the Ordinance....” It was promulgated by Sri Thawar Chand Gehlot in his capacity as the Governor of the state and by the authority vested on him under Article 213 of the Indian Constitution. According to the Indian Constitution, an ordinance can be brought for six months when the legislature is not in session. It has to be converted into law within six weeks of the start of a session, or else it will lapse. However, in a significant judgment passed by a seven-judge bench of the supreme court in Krishna Kumar Singh & Anr. v. State of Bihar and Ors. in 2017, the court held that enactment by ordinances isn’t a conventional source of law-making. Ordinances must be promulgated in emergent or exceptional circumstances, and just while the legislature isn’t in session. Further, the Constitution requires that ordinances must be necessarily presented before the legislature. In the case of this Ordinance of Karnataka, the civil society is left with bewilderment as to what is the emergent and exceptional circumstance that forced the legislators of the state to fast-forward the process of implementing the law through an Ordinance in a hurry. Is it a law through the back door entry, just because the ruling party does not have the required majority in the upper house or a pre-poll strategy of the political party to appease the majority vote bank? Whatever the reasons may be, this controversial law, just like its counterparts in other states, poses a kind of anxiety and fear in the lives of citizens, particularly the religious minorities.
Section 3 of the Karnataka Protection of Right to Freedom of Religion Ordinance penalizes anyone who "converts or attempts to convert, either directly or otherwise, any other person from one religion to another by use or practice of misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by any of these means or by the promise of marriage”, and also “those abetting or conspiring for such conversions will also be penalized”. The Ordinance defines the term “allurement” as means and includes offer of any temptation in form of, - (i) any gift, gratification, easy money or material benefit either in cash or kind;(ii) employment, free education in school or college run by any religious body; or (iii) promise to marry; or (iv) better lifestyle, divine displeasure or otherwise; or (v) portraying practice, rituals and ceremonies or any integral part of a religion in a detrimental way vis-à-vis another religion ; or (vi) glorifying one religion against another religion. This ambiguous definition appears to be a trap aimed at the minority run institutions, through which the complainant can conveniently interpret the law to falsely charge someone with the act of forced conversion.
This law emulates its counterparts of like-minded states by making mandatory the grant of notice to a district magistrate from a person who is desirous of converting his/her religion. The magistrate will then publish this proposal and call for objections. This demand for publication, by itself, is anathema to the right to privacy that is now regarded as fundamental. In Evangelical Fellowship of India v. Himachal Pradesh (CWP No. 438 of 2011), justice J. Deepak Gupta struck down a similar provision mandating public intimidation of conversion in Himachal Pradesh Freedom of Religion Act, 2006, holding that a person possessed not only a right of conscience but also a right to keep his beliefs secret.
Through this Ordinance, the government of Karnataka intends to proscribe altogether conversions made for the purpose of marriage. Section 6 stipulates, “Marriage done for sole purpose of unlawful conversion or vice-versa to be declared null and void”. This is a similar provision already enacted in the anti-conversion laws of Utter Pradesh and Madhya Pradesh. But in hearing on a challenge to the validity of an analogous provision of Section 3 of the Gujarat Freedom of Religion Act, 2003, (as amended in 2021), the high court of Gujarat stayed this provision holing that, “Prima-facie inter-faith marriages between two consenting adults by operation of the provisions of Section 3 of the 2003 Act interferes with the intricacies of marriage including the right to the choice of an individual, thereby infringing Article 21 of the Constitution of India.” A division bench comprising Chief Justice Vikram Nath and Justice Biren Vaishnav passed this interim order to protect the parties of inter-faith marriage from being unnecessarily harassed by government and various organisations. But the Ordinance of Karnataka heeded deaf ear to this judgment.
Under the similar laws of Gujarat and Utter Pradesh, only family members and relatives (parents, brother, sister or any other person related by blood, marriage or adoption) can file a police complaint alleging the forced conversion. Whereas, Section 4 of the Ordinance of Karnataka illustrates, “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 may lodge a complaint of such conversion which contravenes the provisions of section 3”. This provision obviously paves way for anyone to drag a particular institution or individual persons to legal disputes in the name of alleged forced conversion.
The Karnataka’s Ordinance also makes the matter more complicated through the legislation in its Section 12, by imposing on the person seeking to convert, a burden to establish the negative that conversion has not taken place through one or the other of the prohibited categories. This notion is totally arbitrary in its nature and also disproportionate as a burden such as this type can almost never be discharged. This provision is modeled after the law of Uttar Pradesh and it is worth recalling that such similar provision was also stayed by the high court of Gujarat earlier last year, stating that such provision puts “parties validly entering into an interfaith marriage in great jeopardy”.
Severe punishment is also prescribed under the Ordinance of Karnataka, leading a person found guilty of conversion to face a jail term of three to five years and also a fine of Rs. 25,000. It is ridiculous to note that this legislation makes a discriminatory point even on the faith aspect between an ordinary man, woman and a SC/ST person by stipulating higher form of punishment for converting a woman or a person from the community of SC/ST. This is discriminatory and unconstitutional. Compared to the anti-conversion law of Uttar Pradesh, the punishments enshrined in the Karnataka law is more and severe.
These anti-conversion laws, as claimed by the legislators, ostensibly seek to end conversion through unlawful means, to put an end to type of conversion solely for the sake of marriage and to ensure protection of religious faith from the religious fundamentalists. The question is whose fear it is that pushes the legislators to frame such laws. India is a multi religious country, which is so rich in spirituality, a country that gave birth to new religions, and a country where people of different religious beliefs have lived in harmony for centuries. By guaranteeing to its citizens, freedom of conscience and free profession, practice and propagation of religion, in Article 25, the constitution of India envisions a country that is secular in its nature not imposing upon anyone a particular religious faith. In Rev. Stanislaus v. State of Madhya Pradesh (1977), the Supreme Court reiterated that the provision of Article 25, “propagate”, does not mean anyone can be forced to be converted. But it should also be of the view that no one should be forced to hold on to a particular religious belief that he or she does not value any more. No one should be forced to stop the spiritual benefits of other religion, just because someone is born in a particular religious community.
The Law Commission of India, that was chaired by Justice P.V. Reddy, in report No. 235, dated December 27, 2010, pertinently advised the Government of India stating that, “Religious conversions may appear to many in Indian mindset to be unnecessary, puerile and negation of the very concept of respect for both religions as also the followers of such religion. But certainly, the freedom of faith guaranteed the Constitution may not justify the negation of the right to pursue the chosen faith, by conversion where necessary”. Interestingly, the Law Commission of the state of Karnataka too, that was chaired by Justice V. S. Malimath, in its proposal to the Government of Karnataka on 21st September, 2013, to enact a suitable law for the protection of freedom of religion, positively proposes that the focus of such law should be “equally protecting the right to freely practice ones religion as well as on the right to freely understand the other religions to make an informed decision to convert to the other religion or not..”. Considering all these, if the existing anti-conversion laws of India are not appropriately interpreted, adopted and implemented, or made use to target the minority religious communities, the secularism that is envisioned by the constitution of India, will surely be at stake.
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