The State has created watertight personal laws, where there is no possibility of moving from one system of personal laws to another system of personal laws, not even to be able to marry a loved one. Hindutva has found multiple ways of propagating itself. One of them is to confine communities within their own religious fold and not permitting them to intermarry, writes INDIRA JAISING.
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WHAT is conversion? Anti-conversion laws have existed before and after the constitution came into force. Those which predate the constitution were enacted by Princely states. These were obviously states ruled by Hindu rulers, who sought to prevent the conversion of their subjects from Hinduism to the religion of the conquering power, be it Islam or Christianity.
With the Constitution coming into force, one would expect the debate on anti-conversion laws to change or for that matter, become irrelevant. This is because the Constitution contains a guarantee of the freedom of religion for all persons. Given that the Constitution itself is secular, there is also no state religion and no offence of blasphemy in our penal laws. The Constitution guarantees the right to freedom of religion in Article 25, which states:
"25. Freedom of conscience and free profession, practice and propagation of religion:
(1) 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
(2) Nothing in this article shall affect the operation of any existing law or prevent the state from making any law
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus"
Human ingenuity has yet failed to define the legal meaning of the word "religion." It is perhaps for that reason that the marginal note to the article reads: "Freedom of conscience and the free profession, practice and propagation of religion."
A reading of the title of Article 25 would, therefore, lead to the conclusion that the freedoms of conscience and religion would be considered interchangeable, in as much as both conscience and religion are something that an individual defines for themselves.
“It is especially significant that the Constitution does not contain the word "convert." Hence, "to adopt" another religion would be a more appropriate use of the word when it comes to the meaning of freedom of conscience and the right to freely practice, profess and propagate religion.
The fact that religion is accompanied by rituals and that it is practised collectively does not alter the nature of the right in that it is an individual right and not that of an institution. Individuals and not institutions have the right to freedom of religion.
To practice, profess and propagate a religion is part of that right. Temples, churches, mosques and agiaries exist for this collective practice and propagation of the right to religion vested in an individual.
But what is the precise content of the right to propagate religion? It is here that we need some clarity of thought lest we run into problems, which can lead to a denial of the very right to religion itself. To believe without propagating may be giving effect to only a part of the right; to propagate can include persuading another person to adopt a particular religion, and to administer the rituals which accompany such a process, popularly known as "conversion."
A person is born into the religion of their parents and presumed to belong to that religion – there is no act of choice involved here. The presumption can be displaced by the manner in which a child is brought up; parents may choose not to bring up their children in a particular religion. When the two parents belong to different religions, the child is presumed to belong to the religion of the father, who is considered the natural guardian. On attaining majority, a person is free to choose any religion to which they may want to belong, and their religion need not be the same as that of their parents.
It is especially significant that the Constitution does not contain the word "convert." Hence, "to adopt" another religion would be a more appropriate use of the word when it comes to the meaning of freedom of conscience and the right to freely practice, profess and propagate religion.
The right to freedom of religion would not have any meaning if it did not include the right to adopt any religion of one's choice or the right to renounce all religion. It is with this understanding that we need to approach all the so-called 'anti-conversion' laws, the UP ordinance of 2020 and the MP Ordinance of 2021.
There is no central legislation addressing the issue of conversion. Early attempts to introduce such laws have been rejected. Given the nature of the right, which is basically a right to the freedom of conscience, I would argue that a secular Constitution can contain no legislative competence to enact laws restricting this freedom of conscience. The only restrictions on the right are to be found in Article 25 itself – namely public order, morality and health.
Health
A contemporary example of a restriction based on health is the framing of notifications under the Disaster Management Act during the Covid-19 pandemic which involves shutting down places of worship, restricting the number of persons who can enter such places or the timings during which they can enter, during the pandemic. Other examples can be found.
Morality
The word morality in Article 25 is of ancient vintage and is found in several constitutions. More particularly in India, attempts to resist the banning of sati on the ground that the practice was protected by the right to freedom of religion were rejected on the grounds that the practice of sati was immoral and universally abhorrent to civilised nations and, in fact, a form of collective murder. It was against the conscience of humanity. It was, therefore, necessary to provide for morality to be a restriction on the right to freedom of religion.
Recognising that in India several social practices, which would need reform would be linked with religion, the Constitution empowers the state to enact legislation for social reform in Article 25(2)(a), which reads as mentioned below:
"(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;"
Public order
This brings us to the question of whether legislative competence for anti-conversion laws can be drawn from the words "public order" in Article 25. To begin with, the expression "public order" in Article 25 cannot be given the same meaning as Entry 1 of List 1 or Entry 2 of List 2 which deal with law and order and policing of public disorder as we commonly understand the issue. The words "public order" in Article 25 must be read with morality and health. When so read, they must mean the public policy of the Constitution of India as expressed in its Preamble, in the Directive Principles of State Policies and its Fundamental Rights. Even if public order is to be read in its ordinary sense, one can think of examples of religious activity that could be restricted on the ground that the practice of such religion would lead to public disorder. You could, for example, prevent a procession with arms – as was sought to be done in the Anand Margi cases – in the name of public order. The question however is whether you can prevent a person from adopting another religion on the ground of "public order"?
“In normal parlance, we tend to use the word "convert" for the act of adoption of religion and this leads to a confusion of thought in the judgment. It is one thing to say that such ritual cannot be accompanied by force or fraud; it is another thing to say that there is no right vested in a religious person to perform the act of conversion, which is what the court is suggesting here.
The problem arose in the challenge to the anti-conversion law in Madhya Pradesh. In the Rev Stanislaus case, the Supreme Court held:
"18. The expression 'propagate' has been defined in the Shorter Oxford Dictionary to mean: "to spread from person to person, or from place to place, to disseminate, diffuse (a statement, belief, practice, etc.)"
19. According to the Century Dictionary (which is an Encyclopaedic Lexicon of the English Language) Vol. VI, "propagate" means as follows:
"To transmit or spread from person to person or from place to place; carry forward or onward; diffuse; extend; as to propagate a report; to propagate the Christian religion."
20. We have no doubt that it is in this sense that the word 'propagate' has been used in Article 25(1), for what the article grants is not the right to convert another person to one's own religion, but to transmit or spread one's religion by an exposition of its tenets. It has to be remembered that Article 25(1) guarantees "freedom of conscience" to every citizen, and not merely to the followers of one particular religion, and that, in turn postulates that there is no fundamental right to convert another person to one's own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the "freedom of conscience" guaranteed to all the citizens of the country alike.
21. The meaning of guarantee under Article 25 of the Constitution came up for consideration in this Court in Ratilal Panachand Gandhi v. state of Bombay [AIR 1954 SC 388 : 1954 SCR 1055, 1062-63] and it was held as follows:
"Thus, subject to the restrictions which this article imposes, every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others." (emphasis added)
This Court has given the correct meaning of the article, and we find no justification for the view that it grants a fundamental right to convert persons to one's own religion. It has to be appreciated that the freedom of religion enshrined in the article is not guaranteed in respect of one religion only but covers all religions alike, and it can be properly enjoyed by a person if he exercises his right in a manner commensurate with the like freedom of persons following the other religions. What is freedom for one, is freedom for the other, in equal measure, and there can therefore be no such thing as a fundamental right to convert any person to one's own religion."
This passage conflates the act of conscience involved in the change of religion with the rituals conducted on the adoption of another religion. This is where it is important to distinguish between the "adoption" of a religion, which is a voluntary act of agency and "conversion," which is undertaken by another person, normally a priest or such officiant, to evidence the adoption of another religion.
In normal parlance, we tend to use the word "convert" for the act of adoption of religion and this leads to a confusion of thought in the judgment. It is one thing to say that such ritual cannot be accompanied by force or fraud; it is another thing to say that there is no right vested in a religious person to perform the act of conversion, which is what the court is suggesting here.
It is well known that religions like Christianity and Islam have rituals accompanying the adoption of those religions, which allow them to be accepted into the religious fold and enable them to participate in religious activities.
If the law criminalises those rituals, it criminalises the right to adopt another religion altogether. In essence, it is an absolute ban on the right to adopt a religion other than one's forefathers.
Rituals follow the act of conscience, that is the decision to adopt another religion, not precede it. It is absurd to suggest that there is a right to transmit or spread a religion but no right to convert another to that religion As mentioned earlier the act of adoption of a belief in the other religion is an individual act and precedes the act of conversion by a ritual, If the first is protected, the other is necessarily protected.
The judgment of the court is flawed for two reasons:
First, a conversion by an individual should pose no threat to "public order," and hence there is no legislative competence to enact such a law on the ground of "public order." In fact, the court itself has held that there is a duty on the state to prevent a breach of "public order". We all know that most riots qualifying to be described as a breach of "public order" are organised by vested interests.
Secondly, conversion entails two steps – one is the acceptance of the belief by a person and second, the acceptance of certain rituals performed by a person or some such authority to accept the person into the religion which is being accepted by them.
Hence the question of interfering with the right to freedom of religion of the persons accepting another religion does not arise. In fact, the act of conversion by ritual is a step in aid of the acceptance of the religion to which they wish to belong.
“All anti-conversion laws in a secular country are of doubtful constitutional validity for they do interfere with the core of the right to freedom of religion.
The act of acceptance is an individual one, occasioned by the belief in that religion. The conversion ceremony is evidence of this acceptance. Even if we assume that the conversion ceremony is the actual adoption, the situation is clearly one of personal acceptance of another religion, with the priest or any such officiant performing the necessary ceremonies. Hence to criminalise the conversion performed by the priest is to criminalise the choice made by the individual.
It is nobody's case that such an acceptance of another faith can be brought about by force or fraud, such an act is clearly unlawful under existing laws. But to criminalise conversion by "allurement" or "inducement" as some statutes have sought to do, would require a rigorous definition of what is meant by these expressions.
We now see some statutes which include "divine displeasure" in the definition of "force" and the grant of benefits such as education as "allurement."
To this, the UP Ordinance adds a confusing expression,"conversion by marriage". What exactly does this mean? Under personal laws, conversion or the adoption of another religion precedes the marriage. If that is what is intended to be criminalised, then it follows that no interfaith marriage can take place under personal laws at all, since they all require that the two people marrying belong to the same faith. Surely, this would be a very serious restriction not only on the right to freedom of religion but also on the right to marry a person of your choice.
There is no other entry in any of the schedules which enables legislation restricting the religion to which one wishes to belong. If we are to agree that ritual practices are part of the adoption of a religion or in any event evidence of such conversion, then to perform a conversion ritual must form part of the right to religion itself.
All anti-conversion laws in a secular country are of doubtful constitutional validity for they do interfere with the core of the right to freedom of religion.
If one understands the expression "to convert" to mean "to adopt", then no earthly legislature can stop such conversion. When the expression "to convert" is applied to a person other than the person adopting a new or different religion, it must mean the person who performs the necessary rituals required for the adoption of a new religion. As mentioned earlier, the words "to convert" are misplaced in any debate in relation to freedom of conscience or freedom of religion.
Anti-conversion laws, ironically called 'Freedom of Religion' laws, have existed in the States in India for a long time, the first one being in Odisha (then, Orissa) and Madhya Pradesh. They sought to make unlawful the adoption of a religion based on force or fraud or inducement.
Force and Fraud
Force and coercion, in any event, vitiate any act, and they did not need an anti-conversion law to make such force illegal.
Fraud has been defined under Section 17 of the Indian Contract Act, 1872 as follows:
" 'Fraud' means and includes any of the following acts committed by a party to a contract, or with his connivance, or by his agent, with intent to deceive another party thereto or his agent, or to induce him to enter into the contract:—"
(1) the suggestion, as a fact, of that which is not true, by one who does not believe it to be true;
(2) the active concealment of a fact by one having knowledge or belief of the fact;
(3) a promise made without any intention of performing it;
(4) any other act fitted to deceive;
(5) any such act or omission as the law specially declares to be fraudulent."
The word " force "is not defined in law, but in common parlance:
Power, violence, compulsion, or constraint exerted upon or against a person or thing. Power dynamically considered that is, in motion or inaction; constraining power, compulsion; strength directed to an end. Commonly the word occurs in such connections as to show that unlawful or wrongful action is meant, e.g., forcible entry.
“It is clear that under existing law, a ceremony of conversion knowing that a person has been forced or coursed to enter into a conversion ceremony will face criminal consequences and in civil law, the conversions will be of no legal consequence.
Coercion has been defined under Section 15 of the Indian Contract Act, 1872 as follows:
"Coercion" is the committing, or threatening to commit, any act forbidden by the Indian Penal Code (45 of 1860) or the unlawful detaining, or threatening to detain, any property, to the prejudice of any person whatever, with the intention of causing any person to enter into an agreement."
A person forced to convert could argue that such conversion was illegal and was liable to be ignored. Even so, a person forced to undergo a conversion ritual need not practice that religion – at the end of the day, it is one's conscience that dictates the religion to which one belongs.
It is clear that under existing law, a ceremony of conversion knowing that a person has been forced or coursed to enter into a conversion ceremony will face criminal consequences and in civil law, the conversions will be of no legal consequence.
Inducement and allurement
All states define conversion as 'renouncing one's religion and adopting another;' the purpose of these Acts is to prevent such conversion through force, through inducement (as mentioned in the Odisha Freedom of Religion Act of 1967) or allurement (as mentioned in the Madhya Pradesh Freedom of Religion Ordinance, 2021), or by fraudulent means.
The Odisha Freedom of Religion Act, 1967 reads as follows:
" 'inducement' shall include the offer of any gift or gratification, either in cash or in-kind and shall also include the grant of any benefit, either pecuniary or otherwise."
Inducement is considered a motive or that which leads an individual to engage in criminal conduct. It could be a bribe or a thing that is used to persuade someone to do something illegal. Again, it is misplaced in the definition of what is illegal, since it is a motive and it must result in an illegal act which can be an act achieved by force or fraud.
Under contract law, inducement could be a pledge or promise to do something or not do something. Hence unless the thing promised to be done it itself unlawful, inducement can have no civil or criminal consequences.
“This definition targets in an unlawful manner, the Christian community who run "reputed schools and provide free education to their beneficiaries." There can be nothing wrong with a conversion that results in the person adopting the religion from getting the benefits that the other co-religionists avail of.
Later legislation in some states replaced the word "inducement" with "allurement." Both words don't have any legal definition, and some states (Himachal Pradesh, Uttarakhand, Uttar Pradesh) attempt to define them as:
"offer of any temptation in the form of any gift or gratification or material benefit, either in cash or kind or employment, free education in a reputed school run by any religious body, easy money, better lifestyle, divine pleasure or otherwise;"
This definition targets in an unlawful manner, the Christian community who run "reputed schools and provide free education to their beneficiaries." There can be nothing wrong with a conversion that results in the person adopting the religion from getting the benefits that the other co-religionists avail of.
While the definitions of inducement, allurement and fraud are similar across the board in all the Acts, the definition of "force" in Odisha, among other states, is extended to include the "threat of divine displeasure or social ex-communication." Given that the ostensible purpose of these Acts is the protection of an individual's right to religious freedom, it's strange that it criminalises what some people consider to be an essential part of their religion, namely "divine displeasure" and "social ex-communication."
The targeting of "divine displeasure" as unlawful is a direct criminalisation of the beliefs of a religious community and amounts to a denial of the right to practice that religion. These laws are liable to be challenged on the ground that they violate the guarantee of Article 25.
“The expressions "misrepresentation" and "undue influence" are well known and need no elaboration. They are defined in law. The expression " allurement " has no legal meaning and is not only vague but misplaced in the context of marriage! This one issue alone would make the law unconstitutional for its vagueness. Protecting indigenous faiths?
The rest of the states (Chhattisgarh, Jharkhand, Gujarat) use the following definition:
"any offer of temptation in the form of
(i) any gift or gratification either in cash or kind;
(ii) grant of any material benefit, either monetary or otherwise;"
The MP Freedom of Religion Ordinance of 2021 defines itself as:
"An Ordinance to provide freedom of religion by prohibiting conversion from one religion to another by misrepresentation, allurement, use of threat or force, undue influence, coercion, marriage or any fraudulent means and for matters connected therewith or incidental thereto."
The expressions "misrepresentation" and "undue influence" are well known and need no elaboration. They are defined in law. The expression " allurement " has no legal meaning and is not only vague but misplaced in the context of marriage! This one issue alone would make the law unconstitutional for its vagueness. Protecting indigenous faiths?
Additionally, in the Acts of Arunachal Pradesh and Jharkhand, the law seems to be targeted at tribal communities preventing them from adopting a religion of their choice.
Excerpts from the Acts read as follows:
Arunachal Pradesh:
" "Indigenous faith" means such religions, beliefs and practices including rites, rituals, festivals. Observances, performances, abstinence, customs as have been found sanctioned, approved, performed by the indigenous communities of Arunachal Pradesh from the time these communities have been known and includes Buddhism as prevalent among the Monpas, Membas, Sherdukpens, Khambas, Khamptis and Singphos, Vaishnavism as practiced by Noctes, Akas and Nature worships, including worships of Donyi-Polo, as prevalent among other indigenous communities of Arunachal Pradesh."
Jharkhand:
" 'Indigenous faith' means such religions, belief and practices including rites, rituals, festivals. Observance, performances, abstinence, customs as have been found sanctioned, approved, performed by the Scheduled Tribe communities of Jharkhand from the time these communities have been known."
These laws are targeted at preventing tribals from adopting another religion and hence contain a definition of what is "indigenous faith." It is worth recalling that Hindu Marriage and Succession laws all define Hindus to include Scheduled Tribes and Castes.
According to The Hindu Marriage Act, 1955 and The Hindu Succession Act, 1965:
(1) This Act applies—
(a) to any person who is a Hindu by religion in any of its forms or developments, including a Virashaiva, a Lingayat or a follower of the Brahmo, Prarthana or Arya Samaj,
(b) to any person who is a Buddhist, Jaina or Sikh by religion,
and
(c) to any other person domiciled in the territories to which this Act extends who is not a Muslim, Christian, Parsi or Jew by religion, unless it is proved that any such person would not have been governed by the Hindu law or by any custom or usage as part of that law in respect of any of the matters dealt with herein if this Act had not been passed.
Explanation: "The following persons are Hindus, Buddhists, Jainas or Sikhs by religion, as the case may be:-
(a) any child, legitimate or illegitimate, both of whose parents are Hindus, Buddhists, Jainas or Sikhs by religion;
(b) any child, legitimate or illegitimate, one of whose parents is a Hindu, Buddhist, Jaina or Sikh by religion and who is brought up as a member of the tribe, community, group or family to which such parent belongs or belonged;
and
(c) any person who is a convert or re-convert to the Hindu, Buddhist, Jaina or Sikh religion.
(2) Notwithstanding anything contained in sub-section (1), nothing contained in this Act shall apply to the members of any Scheduled Tribe within the meaning of clause (25) of Article 366 of the Constitution unless the Central Government, by notification in the Official Gazette, otherwise directs.
(3) The expression "Hindu" in any portion of this Act shall be construed as if it included a person who, though not a Hindu by religion, is, nevertheless, a person to whom this Act applies by virtue of the provisions contained in this section."
Finally, some of these laws, in particular, the 2019 Act of Himachal Pradesh have made bold attempts to define the word religion, something which the Constitution itself does not attempt to do.
“Gujarat, on the other hand, requires that the person looking to convert must seek permission from judicial authorities, thus empowering the District Magistrate to deny permission as they see fit. These are extremely severe inroads into the right to marry itself, apart from being an attack on the right to freedom of religion.
Section 2 Clause (i) of the Himachal Pradesh Freedom of Religion Act, 2019 defines religion as:
"religion means an organised system of faith, belief, worship or lifestyle, as prevailing in India or any part of it, and defined under any law or custom for the time being in force"
This definition, apart from being contrary to the Constitution, is non-inclusive in that a person's religion may not be organised, and this is not a universally accepted definition of religion. The definition for the first time, introduces the concept of "lifestyle" as religion. This is the giveaway that alludes to the debates on "hindutva" being a way of life and a sign of things to come.
With regards to the actual ceremony or process of conversion, all states except Gujarat require the person undergoing conversion or the person conducting such a ceremony to notify judicial authorities of such conversion; the period of time differs across states, ranging from a week to a month in advance. Gujarat, on the other hand, requires that the person looking to convert must seek permission from judicial authorities, thus empowering the District Magistrate to deny permission as they see fit. These are extremely severe inroads into the right to marry itself, apart from being an attack on the right to freedom of religion.
An important aspect of these Acts is the process of re-conversion or reverting to one's own religion. While the latter has only been defined by Rajasthan (own religion: [the] religion of one's forefathers), Arunachal Pradesh is the only other state that excludes reconversion as being lawful and not amounting to "conversion" this means that someone reverting to their 'original' religion would not need to notify the state of such conversion. Here we see a clear privileging of the Hindu relation as the assumption that a Hindu converted to another relation and then through a process of "ghar wapsi" returns back to the Hindu fold through a process of sudhi karan. All other states require notification even under such circumstances.
“How is The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 and The Madhya Pradesh Freedom of Religion Ordinance, 2020 Unconstitutional?
While about ten states have anti-conversion laws in place, only three-Uttarakhand in 2018, Himachal Pradesh in 2019 and Uttar Pradesh in 2020-attach the prohibition of "conversion on marriage "or "marriage on conversion."
Section 6 of the Uttarakhand Freedom of Religion Act, 2018 states:
"Any marriage which was done for the sole purpose of conversion by the man of one religion with the woman of another religion either by converting himself before or after marriage or by converting the woman before or after marriage may be declared null and void by the Family Court or where Family Court is not established, the Court having jurisdiction to try such case on a petition presented by either party thereto against the other party of the marriage."
This formulation can be said to be based on the ruling of the Supreme Court in the Sarla Mudgal case. The case brought out the practice of Hindu men who convert to Islam for the sole purpose of getting rid of an inconvenient marriage or simply marrying again during the substance of the first marriage.
Similarly, Section 5 of the Himachal Pradesh Freedom of Religion Act, 2019 states:
"Any marriage which was done for the sole purpose of conversion by a person of one religion with a person of another religion either by converting himself before or after marriage or by converting the other person before or after marriage may be declared null and void by the Family Court on a petition presented by either party hereto."
Lastly, the UP Ordinance section 6 states:
"Any marriage which was done for the sole purpose of unlawful conversion or vice versa by the man of one religion with the woman of another religion, either by converting himself/herself before or after marriage, or by converting the woman before or after marriage, shall be declared void by the Family Court or where Family Court is not established, the Court having jurisdiction to try such case on a petition by either party thereto against the other party of the marriage."
There is a vast difference between the wording of the Himachal and Uttarakhand Acts on the one hand, and the UP Ordinance and also the MP Ordinance on the other.
How are The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 and The Madhya Pradesh Freedom of Religion Ordinance, 2020 Unconstitutional?
These recently promulgated Ordinances not only violate the right to religion but also put an end to all interfaith marriages under personal laws. While all of the laws make conversions based on undue influence and fraud illegal, the UP ordinance, in addition to undue influence and fraud adds to the list of unlawful conversions "by marriage." The only other states to have done so are Uttarakhand in 2018 and Himachal Pradesh in 2019, albeit in a different language, which makes all the difference in this case (see above).
“These laws make all marriages where one person converts to marry under a personal law unlawful, effectively putting an end to interfaith marriages under personal laws.
Section 3 of the UP Ordinance states:
"Prohibition of conversion from one religion to another religion by misrepresentation, force, fraud, undue influence, coercion, allurement or marriage. No person shall convert or attempt to convert, either directly or otherwise, any other person from one religion to another by use or practice of misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage nor shall any person abet, convince or conspire such conversion."
The clause dealing specifically with marriage states:
"Any marriage which was done for the sole purpose of unlawful conversion or vice versa by the man of one religion with the woman of another religion, either by converting himself/herself before or after marriage, or by converting the woman before or after marriage, shall be declared void by the Family Court or where the Family Court is not established, the Court having jurisdiction to try such case on a petition presented by either party thereto against the other party of the marriage;
Provided that all the provisions of section 8 and 9 shall apply for such marriages to be solemnised."
Similarly, the MP Ordinance states:
"3. (1) No person shall,-
(2) Any conversion in contravention of provision of this section shall be deemed null and void.
6. Any marriage performed in contravention of section 3 shall be deemed null and void."
These laws make all marriages where one person converts to marry under a personal law unlawful, effectively putting an end to interfaith marriages under personal laws.
Muslim law for example recognises as valid a marriage between two Muslims but not a marriage between a Hindu and a Muslim. Hence if a Hindu wishes to marry a Muslim under Muslim law, she will have to convert to Islam prior to the marriage; personal laws recognise marriages following a conversion since they recognise marriages between two people belonging to the same faith.
The Himachal law, on the other hand, confines itself to "marriage for the sole purpose of conversion;" in other words, the bona fides of the marriage itself are being questioned and the use of conversion to achieve an unlawful end, namely to get rid of an unwanted marriage or to acquire another wife. It could possibly include Hindu men marrying only to get the benefit of a personal law that permits more than one marriage.
In Sarla Mudgal for example, many cases were cited where a Hindu man converts to Islam for the sole purpose of shaking off an unwanted marriage, or of acquiring another wife. This could possibly be said to be a case of conversion for the sake of marriage.
India is a country governed in relation to matters of marriage, custody, adoption and succession by multiple legal systems known as personal laws, such as the Hindu Marriage Act and multiple different uncodified procedures for Muslims, Christians and Parsis. In addition, the Special Marriages Act 1955 enables interfaith marriages without a change of faith.
However, surely it is up to the persons getting married whether they wish to marry under their personal laws or the Special Marriages Act. This choice made by them cannot be restricted by law. If they choose to marry under personal law, one of the two would necessarily have to convert to a religion to which they will then both belong. The UP and MP Ordinances criminalises such marriages. In adding the words "by marriage" to the definition of conversion and making it illegal, the law effectively disables any interfaith marriage under personal law.
The affidavit filed by the state of UP in the Allahabad High Court sets out reasons to justify the law, one of them being that conversion to satisfy the requirements of personal laws is forced conversion. This would imply that no interfaith marriage can take place at all under personal laws because all such marriages require that the two people marrying belong to the same faith. This means there is a compulsion to marry under the Special Marriages Act,1955. Compelling the choice of law in a country that has a plural legal system would again violate the right to freedom of religion and of personal autonomy.
“Conversion to get married is a personal decision and cannot be criminalised, to do so is to violate the right to religion and the right to marry in accordance with one's choice.
The final irony is that our case law is full of cases where Hindu men convert to Islam to adopt a second wife! This is surely illegal and unconstitutional as the conversion is intended to perpetuate a wrong-that is divorcing a wife who you otherwise have no ground to divorce or simply converting for the purpose of having multiple wives! There can be no comparisons between such a person and one who chooses to marry a person of a different religion and chooses to convert to that religion to marry under personal law.
The roots of the problem lie in the inability to distinguish between a person's adoption of their religion of choice and the act of conversion which follows such a decision. It is this confusion that leads the Supreme Court to come to the conclusion that, "It has to be appreciated that the freedom of religion enshrined in the article is not guaranteed in respect of one religion only but covers all religions alike, and it can be properly enjoyed by a person if he exercises his right in a manner commensurate with the like freedom of persons following the other religions. What is freedom for one, is freedom for the other, in equal measure, and there can therefore be no such thing as a fundamental right to convert any person to one's own religion."
This ignores the fact that the decision to adopt a particular religion is one's own and if it is motivated by the fact that the person wants to marry under personal laws, so be it.
Conversion to get married is a personal decision and cannot be criminalised, to do so is to violate the right to religion and the right to marry in accordance with one's choice.
While the women's movement in India has always held that the threat of a Uniform Civil Code would victimise minority communities and force them to abandon their personal laws, we did not anticipate that this agenda would be achieved in another way, that is by disabling a woman from adopting another personal law, thus compelling all religious communities to remain within their own fold.
Far from imposing a Common Civil Code, the State has created watertight personal laws, where there is no possibility of moving from one system of personal laws to another system of personal laws, not even to be able to marry a loved one. Hindutwa has found multiple ways of propagating itself. One of them being to confine communities within their own religious fold and not permitting them to intermarry.
(Indira Jaising is a senior Supreme Court lawyer and the founder of The Leaflet. The views are personal.)