The anti-conversion laws are sweeping Indian states despite their incompatibility with international human rights law. In this article, Acharaj Kaur Tuteja outlines this incompatibility, and how these laws impact interfaith marriages.
In the past five decades, multiple states in India have introduced and enacted anti-conversion laws to target, and in some cases criminalise interfaith marriages.
In 2019, the Uttar Pradesh State Law Commission submitted a 268-page report on forced conversions that were taking place in the state along with the draft Uttar Pradesh Freedom of Religion Bill. The report is divided into various chapters and focuses on pre-independence, post-independence and foreign anti-conversion laws (in Nepal, Bhutan, Myanmar). Prior to 1947, princely states had enacted laws to ban the preaching of Christianity and to prevent emissaries from entering their kingdoms. Any change of religion from Hinduism was required to be registered. However, any anti-conversion bills that arose post-independence were rejected by the Parliament on their apparent affront to specific religious faiths like Islam, Judaism and Christianity. Nevertheless, after persistence on part of multiple action groups within their territories, states in India started passing anti-conversion legislations. Madhya Pradesh, Uttarakhand, Gujarat, Jharkhand and Himachal Pradesh drafted statutes to make religious conversion by force and marriage illegal, referring to the latter as ‘love jihad’.
Mirroring those, the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, (‘the Act’) came into force in 2021, and seeks to prevent conversion or attempts to convert a person to another religion by ‘misrepresentation, force, undue influence, coercion, allurement, fraudulent means or by marriage’. The Act, under the garb of preventing illegal conversion, has strategically acted as an impediment to multiple interfaith marriages.
Viewing the Act from the perspective of international human rights law
International human rights law protects the right of an individual to convert to a different belief under various conventions. India is a signatory to the Universal Declaration of Human Rights (UDHR) and ratified the Internation Convention on Civil and Political Rights (ICCPR). Additionally, Article 51 of the Indian Constitution establishes that the government must endeavour to ‘foster respect for international law and treaty obligations in the dealings of organised peoples with one another’. In the landmark case of Kesavananda Bharati vs the State of Kerala, the Indian Supreme Court noted that the rights outlined in the UDHR are already incorporated into the Indian Constitution as fundamental rights. Consequently, the interpretation of these fundamental rights should be guided by international law.
Article 18 of the UDHR provides that everyone has the right to freedom of religion or belief including the freedom to change the same. Alternatively, Article 18(1) of the ICCPR provides that everyone has the freedom to have or to adopt a religion or belief of their choice. Additionally, Article 18 of the UDHR protects the right of individuals to manifest their religious beliefs in teaching, practice, worship and observance. Similarly, Article 18(1) of the ICCPR protects an individual’s right to manifest his or her religion or belief in worship, observance, practice and teaching. Lastly, the ICCPR prohibits coercion that would obstruct the individual’s choice to freely choose their religious belief. The following section will outline how provisions of the Uttar Pradesh Anti-Conversion law, therefore, are in contradiction to these instruments of international human rights law.
Disfavoured religions
Firstly, Section 3 of the Act, which defines what would constitute as unlawful conversion, provides an exemption for the same. It states that any reconversion to a person’s immediately preceding religion will not constitute conversion under the Act. The purpose of the Act is to censure any conversion taking place due to allurement, coercion or fraud and excluding reconversion seems contradictory in nature. It bears no rational nexus to the law’s objective which one can assume is treating religious conversions on a priority basis. Such an exclusion hints at an alternative argument that the law is not neutral, and only concerns itself with conversions from Hinduism to any ‘disfavoured religions.’ The United States Commission on International Religious Freedom (USCIRF), in its 2021 report, stated that such anti-conversion laws have created a nation-wide impunity for campaigns of threat and violence, targeting Muslims and Christians. It cited various incidents, including the Uttar Pradesh Chief Minister Yogi Adityanath issuing a warning to invoke the National Security Act to detain converters in the state, and appointing over 500 officials to counter people carrying out any conversion activities.
Scrutinising interfaith relationships
Secondly, Section 4 lists down the people who can file a complaint, which is not limited to the aggrieved person but also includes their parents, brother, sister or anyone related to them by blood, marriage or adoption. This section essentially gives the liberty to all such people to hold an interfaith couple to ransom.
A mother in the city of Kanpur, falsely filed an FIR (first information report) claiming that her daughter had been trafficked by a Muslim man. On further investigation, the daughter revealed that she had converted and married her husband of her own free will and her parents merely disagreed with the said conversion. Fourteen similar FIRs were filed in the city that month, all of which were eventually dismissed given the girls had entered into the marriage without any coercion.
This present provision provides leeway for families to regulate and scrutinise consensual relationships between interfaith couples. This is in violation of Article 17 of the ICCPR which states that no one shall be subjected to unlawful or arbitrary interference in matters of their privacy, family and home. Legislations must provide for protection in consonance with this article rather than allowing meddling in one’s private affairs. Avoiding unwarranted scrutiny or exposure of one’s personal life is inherent to maintaining an individual’s dignity in a democratic society. Article 17(2) also stipulates that legal avenues must be made available to such persons for redressal if their rights are violated under this provision.
Policing religious belief
Next, under Section 8, the Act states that a person wishing to convert their religion should submit a declaration at least 60 days in advance to the District Magistrate stating that such conversion is taking place with their free consent. Following this, under clause 3, a police enquiry shall take place to determine the cause and purpose behind the said conversion. Section 9 then states that after the conversion, the Magistrate will put up the notice of the same containing the converted person’s personal details (permanent address, husband’s/father’s name, previous and present religion) in the office, and call for objections if any. Contravening any of these sections leads to a penalty. General Comment 22 (adopted by UN Human Rights Committee in 1993) to the ICCPR Article 18 notes that no one can be compelled to reveal his thoughts or adherence to a religion or belief. Additionally, penal sanctions to compel believers or non-believers to adhere to their religious beliefs and congregations, to recant their religion or belief or to convert are also prohibited. So, while the ICCPR provides a wide ambit for religious freedom, the Act discourages the same by imposing a lengthy ordeal that violates the individual’s right to privacy.
Lastly, Section 12 of the Act talks about the burden of proof. It states that the burden of proof as to whether a religious conversion is unlawful or not, lies on the person who was accused of facilitating the same. Any person who abetted such a switch in religion is supposed to provide relevant information in Court to show that it took place without any fraudulent means. The UDHR Article 11 asserts that anyone accused of a penal offence is entitled to be considered innocent until proven guilty. In a similar vein, the ICCPR Article 14 affirms that every person charged with a criminal offence has the right to be presumed innocent until proven guilty under the law. This principle pushes the burden of proof on the prosecution and ensures fairness in the judicial process. Law should stand to limit wrongful convictions not encourage them.
A violation of international human rights standards
Rather than supporting or safeguarding religious freedom, such anti-conversion laws have actually weakened the guarantees of religious freedom provided by the Indian constitution and international law, including covenants to which India is a signatory. Driven primarily by a religious ideology, the anti-conversion laws do not fulfil their intended purpose of protecting persons from coerced conversions. Instead, they enable divisive elements to infringe upon the constitutionally protected rights of minority groups, posing a significant threat to the free practice and dissemination of religious beliefs. They break the secular fabric of our democracy and put it at a grave risk. Hence, it is crucial that such laws be dismantled and deemed as unconstitutional in nature.
Photo by Adam Cohn
