The recent spate of attacks targeting the Christian community in India sank to new levels of depravity on Monday, 6 December, when St Joseph's school in Vidisha, Madhya Pradesh was stormed by a mob of Hindutva goons, who pelted stones at the buildings in which children were taking their examinations.
The consistent trend in these cases has been claims by the Bajrang Dal and other Hindutva groups that religious conversions are taking place and have to be stopped. These claims about conversion have even lead to police cases against the pastors or priests from the Christian community at times.
Vigilante attacks are obviously illegal as nobody can take the law into their own hands, but the root of the problem here also needs to be addressed: the hysteria created by Hindutva outfits around conversion of Hindus by Christians and Muslims.
Not only has this hysteria been used to whip up sentiments and encourage attacks on Christian communities, it is also part of the rationale behind the 'anti-conversion' laws in many states.
Indeed, the police in Vidisha, Madhya Pradesh, where the attack on the school happened, is investigating the claim that eight Hindu children were converted to Christianity in a recent ceremony at the school.
The National Commission for Protecting Child Rights (NCPCR) had written to the local authorities even before the mob vandalised the school claiming that there had been an incident of conversion during a First Holy Communion ceremony on 31 October.
The First Holy Communion ceremony is a sacrament for children who are already part of the Christian community, so it is unclear how photos of that ceremony have anything to do with conversion. The Quint has learnt that the eight children were already part of the Christian community and there was no conversion; despite this the church in the region will have to be part of a criminal investigation.
Furthermore, the burden of proof to show no illegal religious conversion took place will rest on the church, thanks to the terms of Madhya Pradesh's anti-conversion law.
But are all religious conversions really illegal? When does a religious conversion become illegal under laws like Madhya Pradesh's? And are these anti-conversion laws constitutional?
No Blanket Prohibition on Religious Conversion
The key thing to remember at all points of time is that there can be no blanket prohibition on religious conversion in a constitutional democracy.
This is not just an abstract principle, but is clearly expressed in the Constitution of India in Article 25.
"Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion."Article 25(1) of the Constitution of India
The right to profess and practise a religion would clearly include the right to choose a religion of one's own choice, and convert from the religion of one's birth if necessary.
The fact that the right also includes 'propagation' of religion also means that there can be no blanket criminalisation of the person who facilitates a religious conversion.
At the same time, as with all fundamental rights, the Constitution does allow for reasonable restrictions on the right to practise and propagate one's religion. As can be seen from the wording of Article 25, there can be restrictions imposed by law in the interests of 'public order, morality and health.'
State Anti-Conversion Laws: When Conversion Becomes Illegal
There is no central government law specifically restricting religious conversion, although arguably any attempt to force someone to convert their religion, or to defraud them would be punishable as offences under the Indian Penal Code, under the general offences of criminal intimidation or cheating.
However, as law and order is something state governments can legislate on according to the Constitution, a number of state governments passed anti-conversion laws over the decades, starting with Odisha in 1967 and Madhya Pradesh in 1968.
These two initial anti-conversion laws were largely driven by fears of conversion to Christianity, rather than more recent legislation which have been driven by the baseless bogey of 'Love Jihad.'
Even these laws do not prohibit all religious conversions. Instead, they say that any conversion by misrepresentation, coercion, force, fraud or allurement, is illegal.
Other states which enacted such anti-conversion laws prior to the 'Love Jihad' frenzy were Arunachal Pradesh (1978, but remains unenforced without any rules), Gujarat (2003), Chhattisgarh (adopted the MP version in 2006) and Himachal Pradesh (2006 and then a stricter one in 2018).
The first anti-conversion laws which expressly criminalise marriage-related conversions were in Jharkhand (2018) and Uttarakhand (2018). These have been followed in 2020-21 by Uttar Pradesh's heavily misused anti-conversion law, as well as a new law for Madhya Pradesh, along with amendments to Gujarat's law.
Haryana, Karnataka and Assam are also in varying stages of bringing in these new anti-conversion laws which criminalise any marriage-related conversion unless prior permission is taken from a district magistrate, in addition to the traditional clauses against conversion by misrepresentation, coercion, force, fraud, or allurement.
Are These Anti-Conversion Laws Constitutionally Valid?
In 1977, the Supreme Court delivered a judgment in the Reverend Stanislaus case upholding the Odisha and Madhya Pradesh conversion laws, noting that Article 25 itself says that the right is 'subject to public order.'
According to the apex court, "If an attempt is made to raise communal passions, e.g. on the ground that some one has been 'forcibly' converted to another religion, it would, in all probability, give rise to an apprehension of a breach of the public order, affecting the community at large."
This meant that state governments had the authority to pass legislation restricting conversions "in a manner reprehensible to the conscience of the community."
The judges also disagreed with the proposition that the right to profess, practise, and propagate one's religion could include a right to convert others to one's religion.
Even though the 1977 judgment was delivered by a five-judge constitution bench, it has come to be viewed with a degree of scepticism, and more recent judgments suggest the courts might do things a bit differently when considering these kind of anti-conversion laws today.
The only grounds for considering a conversion to be illegal, which would stand a test of scrutiny without any real doubt, are conversion by fraud, misrepresentation or coercion.
If one sets these aside for a moment, the legality of anti-conversion laws in force across the country become suspect for three reasons:
Vague definitions of allurement.
The new prohibitions on conversion related to marriage.
Requirements for any person intending to convert their religion to provide intimation to the district magistrate or some other local authority.
Why the Vague Definition of Allurement Is a Problem
All these laws consider conversion by 'allurement' to be illegal. But the concept itself is extremely ambiguous. It covers any conversion where one converts because of some material inducement such as money, as well as "any offer of any temptation in the form of ... better lifestyle, divine displeasure or otherwise."
It is unclear why a conversion on this basis should be illegal. If a person wants to convert because they think they will have a better life, that should be their choice to make, even if it is for purely materialistic reasons.
It is however clear why this has been made a ground for terming a religious conversion legal: the promise of a better life is a key reason why many people from Dalit and tribal communities convert, especially to Christianity, or, following Dr BR Ambedkar's example, to Buddhism.
As the Pew Research Center's recent report demonstrated, an extremely high percentage of Indian Christians come from so-called 'lower' castes (74 percent) with a significant number from Scheduled Castes and Scheduled Tribes (57 percent).
It is not for anyone else – family member, community, police or government – to question their reasoning, if they feel they can lead a better life after converting, a life with more dignity. It should also be noted that the numbers are still minuscule: only 2 percent of Indians have changed their religion, with 0.4 percent being converts to Christianity, the Pew report found.
In terms of demographic data too, it is clear that there are no widespread mass conversions to Christianity using some form of allurement. As of the last available census data, the number of Christians in India has remained stable between 2-3 percent of the total population, currently at 2.3 percent.
The problematic concept of allurement was one of the grounds used to challenge the anti-conversion laws in the Rev Stanislaus case, but unfortunately the Supreme Court never bothered to deal with the issue back then.
However, in the years since, particularly in the recent judgments by Justice Rohinton Nariman, the Supreme Court has developed a strong jurisprudence on manifest arbitrariness in laws and how this renders them unconstitutional.
"The test of manifest arbitrariness would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary – done with reason or rationality and out of personal will."Justice Rohinton Nariman in the triple talaq judgment (2017)
The concept of 'allurement' certainly appears to fall foul of this doctrine, as there is no rationale for making it a ground for terming a religious conversion illegal. Foisting criminal responsibility and reversing the burden of proof as most of the newer laws especially do, is also clearly excessive and disproportionate.
The vagueness of the definition would also render at least 'conversion by allurement' liable to be struck down, similar to the way in which the Supreme Court struck down Section 66A of the Information Technology Act in 2015.
Conversion and the Right to Privacy
The other major development in the intervening years since the Rev Stanislaus judgment has been the affirmation of the right to privacy as a fundamental right by a nine-judge bench of the Supreme Court in 2017. The freedom to choose one's religion, for whatever reason short of coercion or misrepresentation, would certainly fall within the right to privacy.
This would arguably include changing one's religion for money or some other benefits as well. It would certainly include changing one's religion in connection with marriage, or because one thinks one's life would be better.
Once that is the case, it is difficult to see how the marriage and allurement provisions of these anti-conversion laws – which are of course those most open to misuse to target individuals – can be allowed to stand.
The Gujarat High Court recently stayed the operation of the marriage-related provisions of the Gujarat conversion law, holding that these prima facie created a new class of offences which had nothing to do with a lack of choice, as the original law was meant to address.
Nearly all the anti-conversion laws also require anyone intending to convert from one religion to another to give notice to the local authorities before doing so, which is also clearly a violation of the right to privacy as this is none of the state's business.
Even before the Supreme Court's right to privacy judgment in 2017, the Himachal Pradesh High Court had actually struck down these notice provisions in the 2006 anti-conversion law there in 2012, holding that this would violate the right to privacy.
At the end of the day, the only clearly illegal forms of conversion are those by fraud or coercion. It is rare, however, to see proper allegations of illegal conversion on these grounds, whether against Christian or other minority communities, given there is little to no basis to back up such claims.
The goons who target the Christian community instead regard any and all conversions to be illegal, or rely on a vague idea of conversion by allurement, to try and justify their own vandalism and criminal intimidation. The police, unfortunately, use the process of law in a similar manner.
The vagueness of the concept of allurement is thus a serious threat to civil liberties, as are the various procedural requirements in these laws that violate the right to privacy.
As more of these attacks begin to take place, it therefore becomes increasingly urgent for the Supreme Court and high courts across the country to urgently take up the challenges to the constitutionality of these anti-conversion laws that have already been filed before them, and protect the fundamental rights of Indian citizens.
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