– Abhinav Gupta*
One can trace the power to enact anti-conversion laws to Entry I of List II under the Seventh Schedule of the Indian Constitution, 1950, which deals with ‘public order’. Thereby, States have the exclusive power to introduce such legislation. Pursuant to this power, over 9 States have enacted anti-conversion laws to tackle forced conversion in India, which has resulted in the arrest of numerous people. The relatively older anti-conversion laws have broadly defined forced conversion as conversion through inducement, force, or other fraudulent means. However, the recent anti-conversion laws enacted by the States of Uttar Pradesh, Madhya Pradesh, Himachal Pradesh, and Uttarakhand also include conversion before and after marriage under the ambit of forced conversion.
Consequently, these laws have come under scrutiny for violating consenting adults’ fundamental right to liberty and privacy. Further, scholars have opined the anti-conversion laws to employ vague definitions of phrases such as ‘force’ and ‘allurement’. The scope of this paper is limited to analysing the relationship between these recent anti-conversion laws and the Special Marriage Act, 1954, (‘SMA’). In this regard, the paper also critiques the excessive intervention on the part of State and non-State actors.
Part II of this paper focuses on analysing the development of anti-conversion laws in India. In Part III, I deliberate on the relationship between these laws and the SMA. In light of the same, I argue that both laws complement each other by creating an overarching framework that regulates inter-faith marriages in virtually all circumstances. Part IV of the paper analyses the approach to forced conversion attempted by the Sindh Province of Pakistan. In Part V, I make certain recommendations that may help in preserving the rights of the inter-faith couples while ensuring that the State is able to effectively address the issue of forced conversion. Part VI offers concluding remarks.
Tracing The Development Of Anti-Conversion Laws In India
The anti-conversion laws in India have undergone substantial changes over the years. The Orissa Freedom of Religion Act, 1967, (‘the Act’) was the first law that dealt with forced conversion. The Act prevents conversion by the use of fraud, force, or inducement. Any person converting or attempting to convert another person through forced conversion is punished with a fine or imprisonment of over one year. Pursuant to the powers under the Act, the Orissa Freedom of Religion Rules, 1989, mandate the person to make a declaration before the District Magistrate before conversion. Following such declaration, objections to the said conversion are ascertained, and thereafter the Magistrate may permit such conversion. The anti-conversion legislations of Arunachal Pradesh, Jharkhand, Gujarat, and Chhattisgarh have adopted similar provisions.
Evidently, it is noticeable that the aforementioned laws did not lay down a blanket ban on conversions done for the purpose of marriage. This status quo changed in the recent laws enacted by the States of Uttar Pradesh, Madhya Pradesh, Himachal Pradesh, and Uttarakhand. These laws expressly provide that no person shall convert before or after the marriage, and any such marriage shall be declared void. Any contravention to these provisions shall result in imprisonment for one to five year along with a fine. The Uttar Pradesh government has tried to justify this provision by creating an assumption that individuals who choose to enter a different religious community through marriage are compelled and forced to convert in order to avoid loss of dignity and equality of status.
Further, the recent laws permit any ‘aggrieved person’ and relatives to file a complaint against such conversions. These laws also stipulate a lengthy period before which a declaration for conversion has to be submitted to the District Magistrate. The said period ranges from one to two months. The police then scrutinises the declaration, and determines the intention and purpose of the proposed conversion. Furthermore, the laws explicitly state that the burden of proving that the conversion is not for marriage or through any fraudulent means is on the person who has converted or caused the conversion. Thus, they clearly reverse the burden of proof in criminal law from the prosecutor to the accused and contradict the presumption of ‘innocent until proved guilty’.
The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, (‘the UP Ordinance’) goes a step further and requires a declaration even after the person has converted. The UP Ordinance mandates the person to send a declaration as per Schedule-III within sixty days from the date of conversion. A copy of the declaration, which contains personal details of the person, including the address, has to be exhibited on the notice board of the District Magistrate’s office. Further, the converted person is also required to appear before the District Magistrate within twenty-one days from making the declaration, and confirm its contents.
Evidently, the provisions of the recent anti-conversion laws increase the interference and monitoring by the State, society, and family members in matters of conversion and inter-faith marriage. They increase the period for objections, the scrutiny by the police, reverse the burden of proof to the accused, and permit virtually any person to file complaints. Further, they provide a blanket ban on conversion before and after marriage, thereby forming a presumption that every such case is an instance of forced conversion. Consequently, these laws inhibit inter-faith marriages that are performed after conversion under the various personal laws. Arguably, this generates an interaction between these anti-conversion laws and the SMA which is discussed in the next part.
Relationship Between The Anti-Conversion Laws And The SMA
In 1954, the government introduced the SMA with the aim to allow inter-faith relationships and secular marriages. Based on this broad objective, it has been argued that the anti-conversion laws are contrary to the SMA. Though this might be true in theory, the practical application of both the anti-conversion laws and the SMA highlights their complementary functions.
§5 of the SMA provides that people marrying under this law have to provide a notice thirty days before marriage to the Marriage Officer. This notice requires the revelation of the name, occupation, age, and permanent residence of both partners. Thereafter, the Marriage Officer has to publish this notice in a ‘conspicuous’ place in their office. In case any party to the marriage is not residing permanently within the local limits of the said Marriage Officer, a copy of the notice has to be sent to the Marriage Officer having jurisdiction over the party’s permanent residence, and published. This publication of notice under the SMA has resulted in numerous instances of societal and familial harassment of inter-faith couples. For instance, in July 2020, pictures of the notice of a Hindu-Muslim couple was forwarded across social media platforms, following which they were constantly persecuted and faced death threats. . Thus, the SMA has, over the years, in an unprecedented manner, functioned as a means of preventing inter-faith marriages, and harassing inter-faith couples.
Such instances of harassment have motivated inter-faith couples to convert and subsequently marry in accordance with the personal laws since they do not require publication of notices. Therefore, without any information being divulged to their family or society, the couples could preserve their freedom, privacy rights, and peacefully marry under the personal laws. However, as discussed in Part II, the recent anti-conversion laws explicitly prevent such instances by prohibiting any religious conversion done for the purposes of marriage.
Hence, while the SMA permits monitoring of inter-faith marriages performed without conversion, the anti-conversion laws monitor and prevent inter-faith marriages that are performed after conversion. Both the SMA and the anti-conversion laws monitor inter-faith marriages through familial, societal, and State interventions. Therefore, the author argues that the anti-conversion laws complement the SMA in forming an overarching framework for the regulation of inter-faith marriages in all circumstances. These laws and provisions have been argued to be targeted towards religious minorities and restrict inter-faith marriages.
Pakistan’s Attempts In Tackling Forced Conversion
The issue of forced conversion, along with cultural, religious, and historical similarities with India, is also present in Pakistan where hundreds of religious minorities are converted forcefully every year. In 2016 the Provincial Assembly of the Singh Province passed the Criminal Law (Protection of Minorities) Bill, 2015, (‘the Bill’) to address this issue. The Bill defined forced conversion as adopting another religion under coercion, force, duress, or threat. More importantly, the Bill only mentioned that forced conversion ‘can’ take place through the means of marriage. Thereby, it did not impose a blanket ban on conversions that take place for the purposes of marriage and instead restricted the ambit of forces conversion. In other words, marriage was only treated as a means through with such influences upon free will could be made and not as the sole determining factor for ascertaining forced conversion.
Further, the Bill only allowed the victim and any other person authorised by the victim to report instances of forced conversion through a petition before the court. This is substantially different from the anti-conversion laws of India which virtually enable any person to report such instances. Therefore, the Bill maintained the autonomy and respected the privacy of the individual victim of forced conversion. Furthermore, the Bill also provided for shelter homes for victims of forced conversion through the means of marriage. The court could, for security reasons, withhold the locations of these shelter homes and only divulge them to the necessary security personnel. Any person disclosing the location of these shelter homes would be held liable for contempt of the court. Furthermore, the victims could choose to meet their relatives such as parents and partner, only after a voluntary written consent. In the interest of the victim, these meetings were to be supervised by a police officer or a senior employer of a child protection institution.
To facilitate the change of opinion, the Bill also provided a period of twenty-one days for the victim to make an independent decision regarding the conversion. Further, it provided special measures during trial and investigation, such as holding trials in a secure location, police protection during transportation of victim, and in-camera proceedings. Persons such as parents, guardians could also be withdrawn during hearing and examination by the court in the interest of the victim.
The Sindh Assembly had passed the Bill unanimously in 2016 and received appreciation from various human rights activists and minority groups. However, the Bill did not receive the Governor’s assent due to political pressure from Islamist groups who alleged that no forced conversion occurred in the Sindh Province. Similar attempts to pass the Bill were made in 2019 but failed. Regardless, fundamental differences can be observed between the approach of the Sindh Province of Pakistan and the Indian States in addressing the sensitive issue of forced conversion. These differences are discussed in the next part.
The recommendations made are two-fold. First, the author recommends that the anti-conversion laws in India incorporate a model similar to the Bill of Pakistan’s Sindh Province. In this Province, forced conversion, much like India, is a serious issue among religious minorities. In this regard, it is argued that the Bill provided an ideal balance between the interest of the State and the inter-faith couples. The interests of the State are to tackle forced conversion, while the interests of the inter-faith couples are to preserve their right to privacy and liberty with minimal interference from the State and non-State actors.
The Bill was largely victim-centric, focused on the victim’s rights and autonomy, and viewed the issue of forced conversion from the victim’s perspective. On the other hand, the Indian laws primarily concentrate on detecting and punishing the perpetrators and do not focus on the victims. Further, the Bill did not stipulate a specific procedure or vet every single case of conversion. Instead, it permitted only the victim or any other person authorised by the victim to approach the court of law in case of forced conversion. The Bill neither provided any requirement of publication of a notice of conversion nor any inquiry by the police to ascertain the reasons behind conversion. Thereby, the Bill treated the issue of forced conversion as a private matter wherein the victims were allowed to make the decisions themselves with minimal interference from the State and non-State actors.
More importantly, it did not presume each case of conversion through marriage as an instance of forced conversion but instead recognised that marriage might sometimes be used as a means to convert a person through force. Therefore, the author argues that that the Bill managed to achieve an ideal balance between the interests of the State to prevent forced conversion and interests of the citizens to undergo inter-faith marriages without any infringement upon their liberty and privacy.
Second, the provisions for mandatorily providing a notice to the Marriage Officer and its subsequent publication under the SMA should be abolished. Such procedures only act as tools to harass and threaten inter-faith couples. Inspiration can be drawn from the recent decision of the Allahabad High Court in Safiya Sultana v. State of Uttar Pradesh. In this case, the court observed that the publication of notice and the invitation of public objections reek of colonialism and are derived from the Special Marriage Act, 1872. Subsequently, relying on the 242nd Law Commission Report and tracing the development of the right to privacy, the court read down the mandatory nature of these provisions under the SMA for violating an individual’s right to liberty and privacy. The court concluded that the requirement of notice under the SMA is merely directory in nature and could only be implemented at the request of the couple. The judgement is progressive and prevents harassment of inter-faith couples. However, being a single-bench decision of a High Court, there is a need for a more authoritative decision or a legislative amendment.
The SMA by requiring publication of notices enables members of the society and families to harass inter-faith couples resulting in prevention of inter-faith marriages. Due to such public nature of marriage under the SMA, inter-faith couples frequently opt to convert and marry under personal laws. However, the recent laws enacted by some States place a complete bar on conversion before and after marriage. Evidently, the only option that remains for inter-faith couples is marriage under the SMA, which comes with the aforementioned perils. Therefore, these recent laws complement the SMA by regulating inter-faith marriages from all ends and infringing the rights of inter-faith couples.
Forced conversion is a legitimate issue in India; however, the State governments have failed to properly formulate anti-conversion laws that do not encroach upon the rights of individuals. Through the aforementioned recommendations, the paper attempts to reach this delicate balance. The adoption of the Sindh’s model will not lead to a presumption of coercion in cases of conversion for the purposes of marriage. Instead, it will allow the victims to exercise their autonomy and restrict the involvement of society, family and the State. Moreover, the abolition of mandatory publication of notices shall further restrict the involvement of these third parties. This is because without such notices, the dissemination of information will be prevented, resulting in the reduction of the intervention of society and family members. Therefore, the aforementioned recommendations shall enable inter-faith couples to freely exercise their right to privacy and liberty and simultaneously allow the State to effectively tackle the menace of forced conversion.
*Abhinav Gupta is a II Year B.A. LL.B. student studying in WBNUJS.