[Guest Post] Religious Conversions in India – A threat to Article 25 of the Indian Constitution?

This post has been contributed  by Mr. Shantanu Mohan Puri, Managing Partner of  SMA Legal | Legal Advisory Services and Harmanpreet Kaur, Junior Associate, SMA Legal.


Background

India is known for its cultural, linguistic and religious diversity. It is the birthplace of four major religions of the world: Hinduism, Buddhism, Jainism, and Sikhism. In 1950, when the Indian Constitution came into being, the founding fathers declared India as a secular state, that is to say, a State where everyone has a right to practice his or her religion freely and peacefully. The emphasis on this freedom to choose a religion of one’s belief and faith was so strong that a Constitutional safeguard was provided for religious conversions as a right to freedom of religion.

After more than 70 years of the Indian constitution being in force, the question which arises, especially in light of the present political climate in India is, to what extent is this ‘freedom of religion’ valid? Are religious conversions protected under the freedom of religion, as given in Article 25 of the Indian Constitution?

The present piece of writing aims to look into religious conversion and its various aspects.

Religious conversion and its various aspects

The term ‘Conversion’ is said to be as old as ‘religion’ itself. Any study of religion is incomplete without studying about religious conversions. Religious conversion plainly put means ‘the adoption of new religious beliefs that differ from the convert’s previous beliefs’. It involves a new religious identity or a change from one religious identity to another. Conversion requires absorption of the new belief system. It implies a new reference point for one’s identity while being a matter of belief and social structure – of
both faith and affiliation.

Why do people convert?

People convert to a different religion for various reasons, including:

  • Active conversion i.e. by free choice due to a change in beliefs.
  • Secondary conversion i.e. conversion due to a pre-existing relationship with another convert.
  • Marital Conversion i.e. conversion for marrying a person of another religion.
  • Forced conversion i.e. forcing one person to convert under duress. Conversion for convenience
  • Deathbed conversion i.e. conversion shortly before dying which may or may not be the completion of a conversion process already underway.

Various academic studies have discovered that convenience is the most important cause of religious conversion in India. This convenience may arise due to various reasons (love, immigration, marriage, inheritance, political compulsions, reservation for education or employment etc.). Conversion for relatively trivial reasons makes the whole process of converting an insincere act. Nevertheless, it carries on unabated be it a parent converting to enable a child to be admitted to a good school run by a particular religion or a person converting to be part of a social class or a man or a woman keen to marry a person from another religion.

Out of all the mentioned reasons, one predominant reason for a large number of religious converts is lower castes such as Hindu Dalits etc., who convert to caste-less religions such as Christianity or Islam, to escape the caste divide and all the other problems that accompany it. This has been particularly so in the case of the present ruling party which is in power in India, where millions of persons of lower castes have converted to Hinduism only to show allegiance to the BJP and avoid persecution. It’ll be incorrect to highlight conversions only to Hinduism. There are scores of complaints about missionaries acting like salesmen to sell religion and convert people in large numbers. The trap is often laid with the lure of money and under the garb of doing charity.

View of the Indian Judiciary

While conversions have carried on for various reasons, the Courts in India have not been a silent spectator either. Be it the State High Courts or the Supreme Court of India, the courts have observed and passed judgment whenever they have noticed an abuse of the rights given to Indian citizens or trivializing conversions.

In the landmark case of Sarla Mudgal vs. Union of India[1], the Supreme Court held that religious conversion to Islam by a person from a non-Islamic faith is not valid if the conversion is done for the purpose of polygamy.

Similarly, In the Chandra Shekharan vs. Kulundurivalu[2] the court had observed that a person will not cease to be Hindu even if he does not practice his religion. He will remain a Hindu, till he does not renounce his religion. It was stated by the Hon’ble court that a person does not cease to be a member of his religion even if he starts expressing his faith in any other religion.

Anti-conversion Laws

Even though there is Freedom of Religion as enshrined in the Indian Constitution, the fact that India is a developing country with a large number of people who are still not literate, conversion has been misused as well. The poor and the downtrodden or the backward castes and the scheduled tribes have been alluded in the name of religion by doling sops, which have influenced these classes to choose the religion which offers monetary or other incentives. The situation was so appalling in some states that anti-conversion laws were passed.

An anti-conversion law tries to ensure that no person be forced or induced to be converted to another religion. The first state to bring a law barring conversion was Odisha, which passed “Orissa Freedom of Religion Act, 1967”. This law was followed by similar acts by Madhya Pradesh in 1968 and Arunachal Pradesh in 1978. Then, Chhattisgarh inherited the law from Madhya Pradesh. While Gujarat enacted it’s law in 2003, prohibiting forced or money induced conversions.

This did not end with the passing of laws. In July 2006, the Madhya Pradesh government passed a legislation requiring people who desire to convert to a different religion to provide the government with one month’s notice or face fines and penalties. This was followed suit by Rajasthan and Himachal Pradesh, which have their own laws to prevent conversion.

Even though these laws were protested by Catholics, who said that propagation of their faith was an important part of their religion but the Supreme Court settled the matter in a well-known case. The Odisha and Madhya Pradesh laws were challenged in Supreme Court on the ground of violation of Article 25 in Rev Stanislaus vs. Madhya Pradesh[3]. The Supreme Court of India considered the issue whether the fundamental right to practice and propagate religion includes the right to convert.

The court held that the right to propagate does not include the right to convert and therefore upheld the constitutional validity of the laws enacted by Madhya Pradesh and Orissa legislatures prohibiting conversion by force, fraud or allurement.

Concluding Proposition

Conversion still remains a serious issue which rears its head in numerous forms. Thankfully, the Government and the Courts are aware of this. Consequently, this issue is being taken seriously. The Law Commission of India has made specific recommendations to the Government of India in this regard. These recommendations have been made with a need to relook at our fundamental right under Article 25 of the Indian Constitution. With an aim to protect and maintain the spirit of religious freedom, the Law Commission has come out with practical and reasonable recommendations, some of which include having a process for conversion, keeping a record of a change in religion by a person and creating a paper/digital trail of a person’s religious footprint. The reason or the drive for religious conversion will remain a debated issue. However as long as religious conversions are not done for selfish reasons, on the basis of inducements or fraud, they should be permitted. Nevertheless, one underlying fact still needs to be considered – in a country the size and scale of India, as long as there is lack of education amongst large masses of the population this issue will remain. Unless a person is aware of the reasons why a particular religion needs to be embraced, what are its true tenants, what does it stand for, why and how is it different to another religion or from other religions many will fail to enjoy their fundamental right under Article 25 of the Indian Constitution.

Views expressed herein are that of the Authors’.


[1] AIR 1995 SC 1531

[2] AIR 1963 SC 185

[3] 1977 SCR (2) 611

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L&P Editorial Team

The Law & Practice Blog's editorial team.

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