Demographic Anxiety And Anti Conversion Laws
Author: LawSphereX
Category: General Law
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DEMOGRAPHIC ANXIETY AND ANTI CONVERSION LAWS
Chetana Mondal, B.A. L.L.B(H), Amity University, Kolkata Shounak Banerjee Chowdhury, B.A. L.L.B(H), Amity University, Kolkata
ABSTRACT
Anti-conversion laws in India have been at the centre of the legal and political discourse of India. While supporters of these laws claim that they tend to protect, they are there to protect vulnerable communities from predatory proselytization via inducements, allurements, fraud, and coercion, critics say that they infringe upon the fundamental right and are an impediment to religious freedom in India and disproportionately target religious minorities. This paper examines the evolutionary timeline of how these laws came into being going back to the colonial era. This paper also talks about the rationale that is given in creating these laws, linking religious conversions to demographic anxiety and interfaith marriage, which has led to the creation of these draconian laws. This paper also analyses the judicial pronouncements for these laws in different cases.
Keywords: anti-conversion laws, fundamental rights, freedom of religion, forced conversions
Introduction
Freedom to practice one's religion is one of the benchmarks of a civilized society. In India, the right to practice, profess, and propagate one's own religion has been guaranteed by the Constitution of India under Article 25. 1 However, freedom to practice one's religion often comes with the act of freedom to convert to a different religion. Anti-conversion laws in India have been propped up in order to regulate this Act of conversion, especially those that are perceived to be carried out under coercion or an allurement. Supporters of such legislations argue that it is absolutely necessary in order to ensure that vulnerable communities are not entrapped via inducements or suits without truly understanding the significance of the conversion.
On the other hand, critics say that this is a blatant violation of an individual's right to practice their own faith, creating artificial bureaucratic barriers in order to prevent conversions, often with harsh penal sanctions. They also accuse this law of being extremely harsh and biased against religious minorities. The nature of these laws and the controversies surrounding them seems to be how religious Conversions are perceived from the subcontinent only, as opposed to the West, where this conversion is purely seen as the reflection of an individual's idea of the Almighty. In the subcontinent, it is often seen from a communal bias. Apostates are seen as those who are exiting from the groups and converts as human beings.
Often a person's religiosity has no bearing on whether or not they are members of that group, as long as they hold on to the public communal identity of that religion. The legal and political discourse regarding these anti-conversion laws is deeply polarized. Given that India was divided on the basis of religious lines in 1947, demographic concerns continue to shape national identity and policymaking. These anxieties have given rise to narratives and the dominant narrative is that evangelical activities often are driven by economic incentives rather than mere spiritual convictions. This has further given rise to the idea that interfaith marriages are also a covert means of religious conversion.
Evolution of Anti-Conversion laws in India While the British Colonial government maintained an official stance of religious neutrality but often, missionaries granted immunity by colonial government actively engaged in
1 INDIA CONST. art. 25.
proselytization, targeting the marginalized communities. 2 This led to significant concerns among the Indian leaders who perceived conversion as a systematic attempt to weaken India. At the same time, princely states, which were not directly under British control, began implementing laws to restrict religious conversions. Several princely states enacted laws that, for all due purposes, prohibited religious conversions, including Raigad, Udaipur, Bikaner, Jodhpur, Sarguja, Kalahandi, and Kota. After independence, Article 25 of the Indian Constitution allowed individuals the right to freely profess, practice, and propagate their faith. However, with a reasonable restriction that it did not affect public order, morality, and health, this constitutional ambiguity left room for state legislatures to enact laws that regulate conversions based on the objective of ending coerced conversions.
There were three proposed bills at the national level, namely, The Indian Converts (Regulation and Registration) Bill, 1954, The Backward Communities (Religious Protection) Bill, 1960, introduced as a private bill by Sri Prakash Veer Shastri and The Freedom of Religion Bill, 1979, which attempted to criminalize religious conversions. None of the three bills could get enough political support. 3 While none of these bills saw the light of the day, many states, especially those with significant tribal population, did take legislative action to pass anti-conversion laws. Odisha was the first, followed by Madhya Pradesh. These laws were heavily inspired by the laws that were already passed by the princely states preventing conversion carried out through the means of forced fraud or allurement.
There were also strict penalties on individuals and organizations who were behind such unlawful actions. And there was a provision that ensured that a legal conversion took place via the district administration's prior approval. The constitutionality of these laws was challenged in the case of Rev Stanislaus vs the state of Madhya Pradesh4 in the Supreme Court, where the petitioner, himself a Christian missionary, argued that such laws violated the fundamental right to practice and propagate religion under Article 25 of the Constitution of India. The court held that the right to propagate did not include the right to convert and upheld the validity of these laws. This judicial decision was the bedrock on which several other anticonversion laws were also passed, putting the issue of religious conversion under the category of public order exception in Article 25.
Similar laws were passed in the states of Arunachal Pradesh, Chhattisgarh, and Gujarat. These laws often worked on a three-step of preventing unlawful conversions those carried out through
2 Niyogi Committee Report on Christian Missionary Activities 46 (1956).
3 Uttar Pradesh State Law Comm’n, 8th Report on Freedom of Religion (2019).
4 Rev. Stanislaus v. State of M.P., (1977) 1 S.C.C. 677 (India).
force, fraud, or allurement and included procedural steps such as notifying the local government and the registration of these conversions. During this time, especially since the 90s, a new narrative surrounded the idea of religious conversions, especially regarding a conspiracy theory popularly referred to as Love Jihad. The idea that systematic religious conversions were happening through interfaith marriage. Uttar Pradesh's Prohibition of Unlawful Conversion of Religion Ordinance 2020, later enacted as a law in 20215, marked the beginning of a shift in anti-conversion laws. The requirements mentioned were far more stringent and placed the burden of the proof on the person converting. Found lacking, there were harsh penal action for violations. Similar laws were passed in Madhya Pradesh, Karnataka, Haryana as well.
While the state government defended these laws, maintaining that they were necessary to prevent coercion and to ensure India's social fabric is protected. Critics have argued that these violate fundamental rights. The United States Commission on International Religious Freedom, the USCIRF has criticized India's conversion laws, citing them as facilitators for violent reprisals against interreligious couples. 6 Demographic Anxiety It is essential to understand why the anti-conversion laws were enacted in the first place. These laws often derive its origin from demographic anxiety that through conversions enough people may be converted, that it may change the entire population dynamics of a particular area.
In the Indian context, this becomes paramount as it is a country that has been divided solely on the basis of religious population, where even the slightest difference in the population of a certain community decides which country it would be a part of. Often one of the biggest allegations regarding the idea of coerced religious conversions is that external ideological influences and extreme political outfits use the fault lines of the Indian society to significantly alter the cultural landscape of the country. Narratives such as the critical race theory have been borrowed from the Western academia, which have heightened concerns and significantly contributed to the social fragmentation of India, especially those among the Hindus, leading to the conversions of a large swath of marginalized communities.
Rajiv Malhotra in his book, Breaking India, talks about how mass conversions often have the perception of the deliberate attempt of altering India's demographic balance in order to enact political changes and to challenge its traditional hierarchy of society. These activist groups
5 The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, No. 3, Acts of 2021 (India).
6 U.S. Comm’n on Int’l Religious Freedom, 2022 Annual Report, at 1-2 (2022).
often promote narratives under the pretext of social justice, a significant shift from the idea when conversion was solely dependent on theological underpinnings rather than the economic, rather than the socio-economic background of an individual. This has roots in the colonial era. It was the colonial administration which often supported evangelical activities as part of its imperial project. This is very different from the historical roots of Christianity in India which is traditionally said to have originated with the arrival of one of the original apostles of Jesus Christ himself, St. Thomas, and the and the original body of converts, today known as the St. Thomas Christians or the Nasranis, followed their own traditions till the arrival of the Portuguese colonialists who tried to force Latin rites on this community, which eventually led to a split in the community.
These conversions were the result of the direct push by imperial forces as a means of civilizing the so-called backward peoples. This led to a fierce backlash. The mutiny of 1857 indeed was sparked by one of the reasons that the religious faith of the sepoys was being deliberately offended. Later on, many reform movements among Hindus propped up, such as the Arya Samaj, who counteracted these evangelical activities by starting the practice of Shuddhi in order to reclaim those who had been brought out of the Hindu fold. Following independence, concerns over religious conversions did not dissipate. It was one of the strongest points of debate even in the constituent assembly itself. 7 The dichotomy between an individual's freedom of religion and the state's right to intervene in forcible conversions created tensions.
Several members of the constituent assembly expressed concerns regarding forced conversions using allurement or fraudulent means, especially to the depressed classes, the tribals, and even minors. K. M. Munshi proposed an amendment which explicitly sought to prohibit such conversions and that any such conversion which is carried out via fraud, coercion or undue influence will not be recognized. This was supported by other members like Shri Algurai Shastri who supported it by saying how conversions are often carried out by economic inducement and these conversions can have demographic implications as shifting religious population could disrupt the societal stability. However, the most controversial aspect of this debate was the issue of the conversion of minors, that is, should minors be given the right to convert to a different faith?
Frank Anthony, the redoubtable leader of the Anglo-Indians, opposed any restrictions on minors converting, arguing that preventing such conversions would be tantamount to an intrusion into the religious activity and an infringement of religious freedom. He particularly stressed on the fact that if
7 Constituent Assembly Debates, Vol. III, 1947 (India).
two parents converted, then if the conversion of their children is not recognized, it would create an unnatural division within the setup of the family itself. On the other side of the debate, Purushottam Das Tandon and Alagu Shastri opposed it, saying that minors are unable to consent to such a paramount decision, such as rejection of religious conversion, and therefore are legally incapable of doing so. Ultimately, however, there was a compromise where forcible conversions were considered invalid, but there was no outright ban on religious conversion included in the constitution. Judicial Pronouncements The case of Ratilal Panachand Gandhi v.
State of Bombay8 was a significant case that highlighted the fact that Article 25 of the Constitution of India not only gave a clear protection of the right of a person to practice his religion, but also protects his right to propagate his religion by communicating his beliefs to another. Here, the court gave a clear distinction between religious beliefs and practices, ruling that religious practices can be subjected to reasonable restrictions on the grounds of public order, morality, and health, provided that such practices do not form an integral part of the religion itself. The ruling of the Ratilal Gandhi v. State of Bombay case was again reinforced in the case of Digyadarshan Rajendra Ramdassji v. State of Andhra Pradesh9.
However, here the Supreme Court clarified that one's right to propagate their religion does not equate to the right to convert another person into their own religion. The court clearly distinguished between propagation and conversion stating that Article 25 of the Constitution protects only propagation of one's religion and not the conversion aspects. This distinction of conversion from propagation was also highlighted in the case of Rev. Stanislaus v. State of Madhya Pradesh & Ors. 10, where the constitutional validity of the Orissa Freedom of Religion Act, 1967 and the Madhya Pradesh Dharma Swatantraya Adhiniyam,
1968 was challenged on the grounds that these legislations curtailed the right to propagate one's
religion guaranteed under Article 25(1) of the Indian Constitution. In this case, a significant clarification was made regarding the meaning of the word "propagate" as used under Article 25(1) of the Indian Constitution. Here, the definition of this word was taken from Shorter Oxford Dictionary, where propagation meant the spreading from one person to another and
8 Ratilal Panachand Gandhi v. State of Bombay 1954 AIR 388
9 Digyadarshan Rajendra Ramdassji v. State of Andhra Pradesh 1970 SCR (1) 103
10 Rev. Stanislaus v. State of Madhya Pradesh & Ors. 1977 SCR (2) 611
from one place to another by exposition of the tenants, which clearly did not mean conversion of one person into another person's religion. Further, the court also clarified that the impugned acts, i. e. , the Orissa Freedom of Religion Act, 1967 and the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968 were not violative of Article 25(1) of the Constitution, as right to propagate does not include right to convert, and that conversion is only penalized when such conversion is done by force, fraud, deceit, coercion, or any other form of inducement or material incentivisation. It was again reiterated in this case that the rights under Article 25 of the Constitution can be subjected to reasonable restrictions conditional upon public order, morality, and health.
Thus, this case legitimized the restrictions imposed by the state legislations on religious conversions, justifying anticonversion laws as a tool to maintaining public order, which ultimately laid the foundation for the modern anti-conversion laws present in India. However, the court established a very liberal stance in the case of Shafin Jahan v. Ashokan K. M. 11, also known as the Hadiya case where a Hindu girl converted to Islam after marriage. In this case, the court held that the right to choose one's life partner is a matter of individual autonomy and privacy as guaranteed under Article 21, held in the Justice K. S. Puttaswamy v. Union of India12 case. Matters like choosing a life partner or choosing a faith form a very intrinsic part of one's autonomy, and thus such rights cannot be subjugated to notions like “class honour” or “group thinking”.
Thus, the society's approval of such intimate personal decisions is not a precursor for their recognition. The court reinstated the same by clarifying that interference by the state in such personal matters cannot be backed by constitutional protection. The court further clarified that the doctrine of Parent's Patria cannot be invoked in such cases as the choice over here is being made by competent adults, and the state cannot assume guardianship over competent and freely consenting adults. The state can only prescribe conditions for a valid marriage and provide remedies in case of any marital dispute, but the state cannot dictate the personal choices regarding marriage as they are constitutional liberties that are absolutely guaranteed to all.
The Court emphasized that individuals must be protected from any sort of coercion or undue influence in case of matters of marriage and faith, so as to ensure that individuals are free to
11 Shafin Jahan v. Ashokan K.M. AIRONLINE 2018 SC 1136
12 Justice K.S. Puttaswamy v. Union of India AIR 2018 SC (SUPP) 1841
make their own personal choices without the fear of reprisal or persecution and can exercise their autonomy without any sort of interference of coercion. A similar stance was also established in the case of Lata Singh v. State of Uttar Pradesh13, where again the principle of personal liberty to choose one's spouse was reinforced, and the Supreme Court held that anti-conversion laws that imposed restrictions on interfaith marriages contradict the principles of individual autonomy and they are to be deemed as unconstitutional, since they are violative of the fundamental right to marry a person of their choice; and that familial or societal interference in such marriages is also to be deemed as unconstitutional. In the case of Shakti Vahini v. Union of India14, the court declared that preventing any consenting adult from marrying is an infringement of their fundamental rights.
This case holdings criticized the existing laws for perpetuating a very flawed narrative where interfaith marriages are frequently equated with forcible conversions, imposing excessive punishments in certain cases. The burden of proof itself lies on the accused, making them vulnerable to harassment and persecution; the laws are frequently misused by disgruntled family members as well. These laws were condemned for overtly interfering with individual autonomy by assuming that all conversions linked to marriage lack wilful and free consent. This bolstered the arguments against anti-conversion laws that assumed that all interfaith marriages would involve conversions that were forced or done deceitfully. Conclusion The evolution of the anti-conversion laws in India portrays a deep-seated democratic anxiety rooted in social fragmentation caused by various forces throughout the history.
The matter of anti-conversion laws in India has been debated since its inception because it is incongruent to the secular fabric of the Indian constitution. On one hand, the supporters of these laws argue that such laws are quintessential to maintain social harmony by protecting vulnerable communities and by preventing coerced conversions through deceit or material incentivization, while the critics contend that these laws are a blatant infringement of fundamental rights like that of freedom of religion and individual autonomy. While Article 25 of the Indian Constitution guarantees the right to freely practice, profess and propagate one's religion, they can be subjected to reasonable restrictions in light of public order, morality, and health.
13 Lata Singh v. State of Uttar Pradesh AIR 2006 SCW 3499
14 Shakti Vahini v. Union of India AIR 2018 SC 1601
While the laws are made in a good faith to protect people against coerced conversions, it gets an ugly perspective in the implementation stage, especially where there is a requirement of a prior approval from the state authorities before converting to another religion, stealing the piousness of any conversion and putting in the aspect of suspect and manipulation, which might be the case for a few but not for all conversions. The Judiciary gave its own interpretation and dissenting opinions on this issue. While cases like that of Res. Stanislaus v. State of Madhya Pradesh upheld the constitutionality of the anticonversion laws, cases like Shakti Vahini v. Union of India and Shafin Jahan v. Ashokan K. M. opposed the same by emphasizing individual autonomy as the primary facet of fundamental rights.
In conclusion, we can say that while the anti-conversion laws in India had been enacted with the view to protect people against deceit, coercion, fraud, or any other kinds of manipulation into being converted, these laws have more often been used as a political instrument rather than a legal safeguard for forced conversions. The need for the hour is a more nuanced re-evaluation of these laws, guided by constitutional principles, that fosters individual autonomy, religious harmony, and at the same time protect individuals against any forms of coercion.