Open Access Research Article
RELIGIOUS CONVERSIONS AND INTERFAITH MARRIAGES - A CONSTITUTIONAL ANALYSIS OF ANTI-CONVERSION LAWS
Published Paper
Article Details
RELIGIOUS CONVERSIONS AND
INTERFAITH MARRIAGES -
A
CONSTITUTIONAL ANALYSIS OF ANTI-CONVERSION LAWS
AUTHORED BY
- HARSHIT YADAV
& DR.
ANNIRUDH VASHISHTHA
Course- LLB
(SEC-A)
Enrollement
No- A3256121002
Table of Contents
I.
Article 21 4
II.
Article 14 5
III.
Article 19 6
IV.
Tamil Nadu 11
V.
Gujarat 12
VI.
Uttarakhand 12
VIII.
Uttar Pradesh 13
Abstract
The
prohibition of interfaith weddings as a method of converting one of the
partners from one religion to others is a regressive and plainly
unconstitutional aspect of recent anti-conversion legislation passed by several
States. Laws prohibiting conversions acquired by fraud, force, or allurement
have existed for some time, but recent enactments or modifications have
included "conversion by marriage" to the list of prohibited conversions.
These legislations are often referred to as 'freedom of religion' laws in certain
states. When it comes to interfaith weddings, the Gujarat High Court made it
plain that the "rigours" of the state legislation passed earlier
thisyear won't apply to unions that don't entail fraud, coercion, or allurement
in an interim decision safeguarding parties from unnecessary harassment. Unless
there were any of these unlawful components, criminal procedures have been
halted against individuals who have married across religious beliefs. According
to a Bench, the State government's argument that inter-faith weddingsthat do not
entail fraud or force and lead to conversion are exempt from the criminal provisions
of the Gujarat Freedom of Religion (Amendment) Act, 2021, was denied. According
to this viewpoint, converting "by marriage" or "by getting a person
married" or even helping someone get married is illegal under the
amendment's language. In the court's opinion, "a simple reading of Section
3 would suggest that any conversion for the purpose of marriage is likewise illegal.
" That Hindutva supporters still believe in ancient rules aimed at restricting
interfaith marriage is unfortunate. Many people still think that inter-faith weddings
are aimed at religious conversion, have a negative effect on public order, and usually
entail force or deception, even though the Supreme Court has made it plain that
doing so is no longer constitutional. Constitutional courts would not consider
such weddings to be public order violations and making their solemnization
abasis for anti-conversion legislation prosecution was unlikely to succeed,
according to secularistsand legal experts. Article 21 of the Indian Constitution
is clearly violated by Gujarat's laws, which "interfere with the subtleties
of marriage" and a person's freedom to choose marriage. The rulingof Supreme
Court in Shafin Jahan vs Asokan K.M established the concept that Article 21
guarantees the freedom to marry whoever one chooses. It's a major judicial rebuke
of states that are trying to incite communal strife by passing questionable
anti-conversion laws that the ruling halting criminal proceedings represents.
Keywords: Inter-faith marriages, Anti-conversion laws, Judgement, Special
Marriage Act, freedom of religion, conversion laws, Religious Conversions, Constitutionality.
A.
Introduction
The Prohibition of Unlawful Religious Conversion Ordinance was approved
last year in Uttar Pradesh, India's
ninth state with an anti-conversion legislation. Forcing people to stay in
their current religious beliefs is
one of their declared objectives. The Special Marriage Act of 1954 in India, on the other hand, regulates civil
unions between people of various religions. The SMA seems to encourage secularism on the surface. Even anti-conversion
law, on the other hand, purports to
preserve people's religious identity. Both pieces of legislation are
intertwined in this way.
Anti-conversion legislation exacerbates the problems faced by couples who want
to marry beyond their faith
since the SMA failed to achieve its goals.1
As a consequence, Articles
14, 19, 21, and 25 of the Constitution, which are essential
to a person's progress, are hampered in both cases.
These rights cannot
be revoked unless
there is an emergency involving national security, public
safety, or other issues of public importance. To be more specific, Article 21 asserts that no one may be denied of their
life or liberty unless the process provided
by law is followed. As the right to privacy is inextricably linked to one's
identity, it follows that Article 21
protects it. If the state's intrusion is not just, fair, and reasonable, it
cannot be justified.
I.
Article 21
The
SMA stipulates that a 30-day notice of an interfaith marriage must be provided
to the subdistrict magistrate. As soon as the SDM has completed
his investigation, he notifies the couple's home (i.e., family) and posts a notice at
the offices of the relevant authorities as well. This is intended to allow anybody in the public to voice their
opposition to the proposed union on particular reasons.
However, marriage is also a private matter,
and the Special Marriage Act's
1 “Panadan, Davis.
"Anti-conversion laws a fraud on the constitution and democracy of india." Journal
of Dharma 35, no. 2 (2010).”
procedure
violates the privacy of a couple at every stage. It infringes on their dignity
and liberties since their
decision to have a family is
made public. A 30-day (or 60-day)
notification of intent to change one's faith is also
required by certain anti-conversion legislation. This is not uncommon.
For
example, in Uttar Pradesh, police are tasked with investigating and determining
the motives for conversions. Anyone
who has undergone conversion is required to show up in front of an official
figure to verify
his or her identification. Even his or her kin may file a police
report to stop the
conversion. As a result, a person must declare his or her conversion desire and
other personal information at each
stage. As a result of the shackles of caste identification, some Hindus have turned to Buddhism. Encouraging an inquiry
into a person's religious beliefs is a violation of a person's dignity and
liberty, as well as their article 21
rights.2
II.
Article 14
Article 14 states that the state is responsible for ensuring that everyone is treated equally
under the law. The state, on the other hand, has
the power to provide disadvantaged groups preferential treatment in order to even the playing field. That's why we've
come up with a categorization that makes
sense and can be evaluated to see whether it has "intelligible
differentia," is connected to its
stated purpose, and doesn't seem completely out of nowhere. Interfaith spouses
must present three witnesses to
attest their marriage under the SMA, in addition to previous notification. The notification requirement does not apply to
individuals married under personal laws, and just two witnesses are needed.
Since
a result, Article 14 is violated by these regulations, as there is no basis for
distinguishing between couples
married under personal
laws and those
married under anti-conversion legislation. Before
everything else, withholding information from the public hinders the state's
ability to accomplish any sane objective. As a result,
these rules are clearly arbitrary
and lead to an illogical
categorization.
Additionally,
anti-conversion legislation unfairly targets first-time converts by excluding
them from the same protections that apply to those who revert to their original
faith. It violates
the
2 “Article 21: Protection of life
and personal liberty No person shall be deprived of his life or personal
liberty except according to procedure established by law.”
Article 14 rights of first-time converts
since there is no reason
to distinguish them from others. In addition, there is no logical
connection between governmental objectives and reasonable behavior.
III.
Article 19
Article 19 guarantees the freedom of the press and right to free speech.
Some courts have compared it to Article 19's freedom to choose of
an individual. As soon as it asks for objections to interfaith weddings, the SMA takes away this option
by giving families a voice. It also robs individuals of their freedom to express their preferences for romantic partners.
Articles 4, 5, and 7 of the SMA were recently
struck down by the Allahabad High Court for infringing on the rights of
individuals to autonomy, liberty, and privacy. However,
the Supreme Court has yet
to rule on the SMA.
These
regulations restrict someone's ability to change their faith by telling them
what they may and cannot
do. According to the Uttar Pradesh law, a "mass" conversion is defined
as two or more people changing their faith, therefore
it is a significant occurrence. A family's conversion will be considered a mass conversion event, and
the state will be able to intervene, thus nullifying the Article 19 rights of
the whole family.3
IV.
Article 25 –
“Freedom of conscience and free profession, practice andpropagation of religion”
As long as public
order, health, and morals aren't jeopardized, Article 25 protects
religious freedom for everyone. Economic,
political, and secular activities connected with religion may be regulated by the state via legislation. Certain anti-conversion legislation treats conversion for the purpose of marriage
as a separate offence. Whether or not permission is sought is of little
consequence - government intervention is unavoidable in
such situations.
Restriction of the ability
to marry a non-believer compromise both religious freedom
and the right to marry.
Religious freedom involves the freedom to spread and educate people about a
belief system. Anti-conversion
legislation, on the other hand, equates the claim of divine wrath with the use of
coercion.
3 “Article 14 in The Constitution Of India 1949-Equality before law The State shall
not deny to any person
equality before the law or
the equal protection of the laws within the territory of India Prohibition of
discrimination on grounds of religion,
race, caste, sex or place
of birth”
Even
the Supreme Court, unfortunately, does not have the same views as our
forefathers who drafted the Constitution and incorporated these protections. This case, Rev. Stainislaus vs State of Madhya Pradesh
& Ors on 17 January,
19774, maintained an anti-conversion legislation that had been thrown down by the High Court for
lack of legislative competence and fundamental rights violations.
Even if Article 25 permits the promotion of one's faith,
the Supreme Court has ruled
that a person's freedom of conscience prohibits
them from converting to another. This ruling implies
that converting someone to a
new faith is always accompanied by coercion. After a petition to the Supreme Court, Allahabad High Court
decided to send the case back to the lower court in Uttar Pradesh. It will all come down to whether
the Supreme Court chooses to go back and modify its earlier ruling.5
B.
Social impact of The Special Marriage
Act (SMA), 1954
The Special Marriage Act offers a venue for interfaith unions that would
otherwise be prohibited under personal
rules of conduct. Although
relatives have sufficient opportunity to harass
the couple or carry out "honour" murders because to the disclosure process, this isn't
always the case.
Women
who reject patriarchal conventions and take control of their own lives benefit
most from such measures. Couples
choose to convert after marriage rather to go through the lengthy and laborious
formalities of the Special Marriage
Act because they believe personal
law procedures to be
easier to understand, more accessible, and more familiar. In a strange twist of
fate, they may also provide
greater personal space for couples.
This loophole is used by anti-conversion legislation to allow vigilante groups and police authorities to harass couples
who are contemplating conversion since it would be "forceful." Minority
faiths are often persecuted under these laws
because the majority
Hindu population and Hindu culture
are seen as being threatened by conversion. This is particularly true for men who practice minority religions.6
4
1977 AIR 908, 1977 SCR (2) 611
5 “Freedom of Religion in India (Art. 25)- Article
25 of the Constitution guarantees freedom of religion
to all
persons in India.
It provides that all persons
in India, subject
to public order,
morality, health, and other provisions” 6 “Huff, J. A. (2009). Religious freedom in India
and analysis of the constitutionality of anti-conversion laws. Rutgers JL &
Religion, 10, 1.”
I.
A Way Forward
Today's
right to privacy makes the Special Marriage Act's strict requirements obsolete,
and they are at odds with the concept
of transformative constitutionalism, which recognizes societal
change.
Individuals
are at the center of the contemporary concept of a fair society, with laws
developed through the lens of human
dignity. The Special Marriage Act must be easier to use. Its provisions need
to be updated to reflect current events.
Anti-conversion
legislation, they say, would deter conversions carried out under the guise of marriage. There is a misconception here:
the need is to correct flaws in the state marriage act, making it simpler for couples to marry while maintaining their
religious beliefs. Many people are now left with no choice than to convert.7
II.
Creation of an Integrated Community
In contrast to anti-conversion legislation, the SMA was passed to create
a safe environment for interfaith weddings.
Both pieces of legislation, on the other hand, have some unsettling consequences for society.
There are holes in the SMA that anti-conversion legislation exploits, but the SMA itself breaches basic human
rights. Reforming the SMA requires looking at it from the perspective of an individual rights instead of from
a religious one. As a
result, the Indian community
will be more integrated.
C.
Anti-Conversion Laws and their Constitutionality- The Idea of Religion
and Indian Viewpoint
While the western world views religion as a monolith, this is not the
case in India. As a matter of fact,
religion in India encompasses all of these and more. As a result, religion is a
major political issue that has a significant impact on election
outcomes. The cultural
and constitutional perspectives of India must be understood before delving into the intricacies and dynamics of
7 “Jackson, Vicki C. "Constitutional law in an age of proportionality." Yale Lj 124 (2014): 3094”
religion
in the country. In reality, India's culture thrives on variety, which adds a
certain luster to it. In India, religion has a solid foothold, with customs
that vary by area.
Examples include Muslim-majority Jammu and Kashmir,
Sikh-majority Punjab, Buddhist-
majority Sikkim and Buddhist-majority Ladakh and Nagaland.
Christian-majority Nagaland and Meghalaya and Buddhist-majority Mizoram
are found in Indian Himalayan
States such as Sikkim
and Darjeeling. Muslims, Sikhs, Christians, Buddhists, Jains, and
Zoroastrians all have sizable numbers
in India. In India, Islam is the most prevalent minority religion. Indian
Muslims are the world's third-largest Muslim community, comprising about 14% of the country's total population.
As
stated in Article 25-28 of the Indian Constitution, India is a secular state.
The provision of Religious Freedom
as a basic right to India's people further strengthens the concept of secularism. The idea of 'Secularism' had not been
included in the Constitution from its creation, but the 42nd Amendment, passed in 1976, added it to the document's fundamental framework. As a consequence, in the
Constitution's Preamble, the term "secular" was inserted.8
D.
History of Anti-conversion Laws
It's no secret that India is a nation of numerous religions and customs.
Four main global religions have their
origins in India, including Hinduism, Buddhism, Sikhism, and Jainism. There are 79.80
percent Hindus in India, 14.23 percent Muslims, 2.30 percent Christians,
1.72 percent Sikhs, 0.70 percent Buddhists and 0.37 percent Jains, according to census statistics from 2011.
The Indian subcontinent has long enforced
anti-conversion legislation. The Hindu princely
kingdoms, particularly in the late 1930s and 1940s, introduced the
legislation restricting religious conversions
during the British Colonial era. Several anti-conversion
laws were proposed in Parliament shortly after India gained independence, but none passed.
First, in 1954, Registration Bill and the Indian Conversion
Regulation was presented, calling for the
enforcement of missionary license and conversion registration with government
authorities. The lower house of parliament's members
rejected the measure
because it lacked
majority support. After the Backward Communities
(Religious Protection) Measure was defeated in the Senate in 1960, another bill was presented by the Democratic Party. Bill pursued
to avert Hindus
from
changing
to 'non-Indian religions,' including Islam, Christianity, Judaism, and
Zoroastrianism, as defined in the
Bill, and the Freedom of Religion Bill of 1979 sought to 'officially curb
inter- religious conversion,
Parliament also failed to approve these measures as a result of a lack of support
among its members.9
I. The Initiatives
There
are laws passed at the state level called 'anti-conversion laws,' which govern
religious conversions which are not entirely voluntary.
Orissa & Madhya Pradesh were the first states to pass
such legislation after many unsuccessful efforts
at the Union and Central levels. To begin, anti-conversion legislation targeted
Islam who sought in the 1980s, but as
time went on and their links to Western colonization and the role that active proselytizing plays in becoming a
good Christian became more widely known, so did Christianity. Despite minor differences, the substance and
structure of state laws are very similar throughout
all 50 states. To limit the capacity of groups and individuals to convert
"from the faith of their
ancestors, " these laws seek to safeguard the "weaker" or more
readily "influenced" sections
of society—namely women, infants, backward castes and untouchables—often in the name of protection. Essentially, the goal
of all of these regulations is to keep people from converting to Christianity "by force" or "fraudulent" methods,
or via "allurement" or "inducement. As a result of legislation, there are consequences for breaking
the rules that may vary from monetary
fines to jail time. Women, minors, and members of schedule tribes or schedule
caste (SC/ST) face harsher
penalties under certain of the rules.
E.
State-Level Legislations
I.
Orissa and Madhya Pradesh
There is an Orissa Freedom of Religions Act from 1967 that says that no one intend to convert
anybody from one religious’ faith to another by deception,
force, allurement or enticement, nor
9 “Osuri, G. (2012). Religious
freedom in India: Sovereignty and (anti) conversion. Routledge.”
shall
anyone abet any such conversion. If this legislation is broken, you may face up
to a year in jail or a Rs 5,000 fine.
The maximum punishment is two-year jail and an increased fine of Rs 10,000
for minors, women,
and anyone from a scheduled caste or tribe. It was upheld by the Orissa
High Court as illegal, since the state assembly lacked authority to
legislate on religious issues. Additionally, Madhya Pradesh passed the Madhya Pradesh Swatantraya Adhiniyam 1968 legislation that year.
This
contradicts Orissa High Court's ruling that the Act infringed certain
Christians' basic rights under
Article 25. The Madhya Pradesh High Court rejected this appeal and agreed with
Orissa High Court's ruling.10
II.
Arunachal Pradesh
After the Madhya Pradesh and Orissa High Court cases, many
anti-conversion legislations were enacted.
In 1978, this legislation was passed in many states, including Tamil Nadu,
Arunachal Pradesh and Andhra Pradesh.
The
Arunachal Pradesh Freedom of Religion Act, 1978, contains the state's anti-conversion laws. Orissa & Madhya Pradesh
also have similar
legislation. President Jimmy Carter signed off on the
legislation on October 25 after warnings that indigenous faiths were under attack.
However, since the government has not yet drafted the regulations necessary to put it into effect, it has yet to be
implemented.
III.
Chhattisgarh
In November 2000, the Madhya Pradesh state of Chhattisgarh was created by
dividing it into two parts. As a
result, Chhattisgarh kept the anti-conversion legislation from Madhya Pradesh
and enacted them as the Chhattisgarh
Freedom of Religion Act, 1968. It also kept the procedures for putting the Act into effect that were
included in the original legislation. The state government modified
this Act to make it stricter
later in 2006, though.
IV.
Tamil Nadu
10 “Teater, K. M., & Jenkins, L. D. (2019).
Religious regulation in India. In Oxford Research
Encyclopedia of Politics.”
As per the Tamil Nadu Prohibition of Forcible Faith Act 2002, no one may convert or attempt to convert
anyone from one religion to another by force or allurement and any fraudulent
means. However, the Tamil Nadu
government headed by Jayalalitha revoked the legislation shortly after the Bhartiya Janata
Party alliance lost the 2004
elections.
V.
Gujarat
Freedom
of Religion Act 2003 was enacted by Gujarat's Legislative Assembly in
March 2003. The Dharam Swatantrata
Vidheya-Freedom of Religion Act was the official name of it. The Act was hailed by then-State Chief Minister
and current Prime Minister Narendra Modi as one of his government's most important
'achievements' during its first year in power.
Conversion by threat or enticement was against the law.
VI.
Uttarakhand
According to the Uttarakhand's High Court ruling
on from 2017, the state government should pass an anti-conversion law similar to that
of Madhya Pradesh. Although this was the first time the Court has examined an inter-religious marriage case, it observed
that in some of those instance’s conversion
was a simulation performed to enable marriage. There would be no harm done to people' religious beliefs by passing
legislation similar to the state's
1968 Madhya PradeshHimachal Pradesh Freedom of Religion Act or Freedom of Religion Act in
order to curtail this trend. The state administration presented the measure
to the State Assembly on March 21, 2018, four months after the High Court issued its ruling.
This Act of 2018 was signed into law by the Governor after the measure was approved
by the Assembly on April 18th, 2018.11
VII.
Himachal Pradesh,
Rajasthan and Jharkhand
On
February 18, 2007, Himachal Pradesh's Freedom of Religion Act, a example of other
Indian states' anti-conversion
legislation, went into effect. Rajasthan Dharma Swatantraya Bill, 2008 was previously passed by the Rajasthani legislature in 2006, but it failed to obtain the assent of the state's
governor at the time, but it was again approved
by the legislature in 2008. Jharkhand
11
Abeyratne, Rehan Aindri. "Privileging the Powerful: Religion
and Constitutional Law in India." Asian Journal of Comparative Law 13,
no. 2 (2018): 307-331.
Freedom of Religion Bill, 2017, was approved by the Jharkhand Legislative Assembly on August 12, 2017.
VIII.
Uttar Pradesh
According to the UP Government, on November 28, 2020, the
Uttar Pradesh Prohibition of Unlawful
Conversion of Religion Ordinance, 2020 was enacted, which is currently
a much- discussed legislation and is
regarded as a law against Love Jihad. In addition to other sanctions, this Ordinance imposes jail time of up to
ten years for those who violate it. It aimed to convert people to Christianity in two situations. In the first
place, circumstances involving
fraud, deception, or coercion are not particularly
troubling since comparable rules may be found in other current State statutes from other States as well.
As opposed to the second situation, which deals with conversions 'done only for the sake of marriage. If a marriage
is only for the purpose of illegal conversion
or vice versa, then Section 6 deems the marriages invalid and unenforceable.
This is a topic that is rife with disagreement.
F.
Case Laws
1.
Shafin Jahan v. Asokan
K.M and ors 2018, Case Analysis
A.
Case Summary
Respondent
No. 9 Hadiya alias Akhila had earned a degree in homoeopathic medication and
was enrolled in an internship program
at a university in Salem when she was arrested. Asokan (Respondent No. 1) learned that Akhila had went to institution wearing
a 'pardah' and had changed
her religion. He became sick as a consequence of this. The moment Hadiya
heard the news, she ran to her
friend's home in Salem, but she never arrived. When her father inquired about
Hadiya, he was informed that she had
fled. Concerned about his daughter's disappearance, the father went to the police.
Eventually, the father took legal action
after learning that the police
investigation into the incident had not progressed and categorized a writ
petition for habeas corpus with the Division Bench of the Kerala High Court. Following
her appearance in court, Hadiya was charged
as a Respondent
after
submitting an implement application. On top of that her father and the police
had been informed, she also submitted
an affidavit detailing the events leading up to her leaving his home. In addition, Hadiya petitioned the Kerala High Court for protection against
police abuses via a writ case. After concluding that Hadiya had enrolled in a dormitory to continue her studies and was not being
held against her will, the High Court dismissed the case. Hadiya then withdrew
her writ petition from consideration.
According to the writ suit, Hadiya's
father claims his daughter was forced to convert and is now in danger of being taken out of the
country. It was ordered by the High Court that Hadiya be placed under constant monitoring to make sure she
did not flee the country. According to Hadiya, who appeared before the Court, she did not have a passport and would
not be transported to Syria. Hadiya informed
the High Court that she
had wedded Shafin Jahan, i.e., the Appellant, during the course of the proceedings. With regards
to the marriage's behavior, Kerala High Court used its parens patriae jurisdiction and dissolved it, stating that
"a girl of 24 years is weak and vulnerable, susceptible of being exploited in various ways" and it was up
to them to protect her. The marriage
was thus nullified. In addition, the High Court ordered that she be placed under ongoing monitoring to protect her. In order to learn more about the Appellant and other people
engaged in the marriage's behaviour, an investigation was ordered.
The Appellant took issue with the High Court'sdecision and appealed it all the way to the Supreme Court.12
B.
Issue
Do you think it is fair to ask the High Court to grant habeas corpus
and to dissolve the marriage
of Appellant and Respondent No. 9?
C.
Arguments
·
There are no arguments
offered by the Appellant in this decision.
·
When it came to preventing radicalization in an adult, the Respondent argued
that the High Court was warranted in using its parents
patriae authority.
D.
Judgement
12 “Kaur, N. (2019). Asokan
KM v. The Superintendent of Police &
Ors.(2017) 2 KLJ 974. Shafin
Jahan v. Asokan
KM (2018) 16 SCC 368. Jindal Global Law Review, 10(2),
331-336.”
Respondent No. 1
will be required to show up in court with his child,
Hadiya, as a consequence of the Supreme
Court's decision (Respondent 9). Hadiya's desires were taken into consideration
by the Court, which directed that she
be admitted into the Medical University in Salem, where she intended to finish her internship, and
also that the Kerala State Government make all necessary arrangements for her transfer to Salem.
"Expression
of choice is a basic right under Article 19 and 21," the Court said
further. Because Hadiya had "come before the High Court and declared that she was not under unlawful detention," the Court concluded that the High Court lacked
jurisdiction under Article
226 and had instead been influenced by Respondent No. 1's allegations. "A 'just' way of life" or "a proper'
path of living" for Hadiya cannot be decided by the Court
because of parental concerns, according to the ruling. She is completely in charge of her own
life." To make matters even worse, the High Court erred by drawing
attention to the dangers of welfare concerns
and social radicalization in an order granting writ of habeas corpus, and any suspicions
about future criminal activity or welfare concerns were outside the scope of the
order, which belonged to the State.
According
to the court, each individual will have a constitutional right choose whether
or not to express personal emotions
with someone within or outside of marriage. It was held by the Union of India that independence is the ability
for a person to make decisions about important life matters, and that the intersection between
one's psychological integrity
and confidentiality entitles
a person to freedom of opinion and
self-determination marriage laws, parenthood, and sexual orientation, and that
these freedoms are integral to a person's dignity, and that
2.
K.S. Puttuswamy v. UOI Case Analysis
A.
Case Summary
After receiving a favorable ruling
from other Supreme
Court benches, Puttaswamy sued the Union of
India (the govt of India) before a Supreme Court bench of nine judges. The
bench was formed on the suggestion of
the Constitutional Court in order to determine whether the right to privacy was expected as a distinct and separate
fundamental right following the verdict from the other Supreme Court benches.
Most
recently, a court challenged the government's Aadhaar plan (a universal
biometrics-based identification card)
that would have made it obligatory for citizens to use government services and benefit
from the government programs. Supreme
Court justices heard the
case, which alleged that the plan infringed people's right to
privacy. For India's Union government, however, the Attorney General said, there is no explicit
guarantee for privacy in the Indian Constitution. Observations given in M.P. Sharma v. Satish Chandra
(an eight-judge bench) and Kharak
Singh v. Uttar Pradesh were the foundation for this argument,
according to him (a five-judge bench). The dissenting opinion in Kharak Singh was upheld by a later eleven-judge
panel, which ruled that basic rights should not be seen as separate,
unconnected rights. In subsequent judgments, the Supreme Court's
smaller benches explicitly acknowledged the right to privacy,
which drew on this
precedent.
As
a result of this, the Constitution Bench decided that a nine-judge bench was required
to assess whether the Constitution included a basic right to privacy.
The
petitioner told the nine-judge panel that this right was a stand-alone right
protected by the Constitution's
Article 21 protection of the right to life with dignity. According to the
Respondent, the Constitution only
recognizes personal freedoms that may include a limited right to privacy. It heard
arguments just on nature of fundamental rights,
the interpretation of the Constitution, as well as the philosophical and theoretical foundations of the right to
privacy in the United States.
Judgment
As well as being ancillary to other liberties granted by the Indian
Constitution, India's Supreme Court's
nine-judge panel found the right to privacy legally protected. For more than
two decades, retired High Court Judge
P Puttaswamy has opposed the government's plan for an obligatory identification card that would use biometrics to identify its bearer. It was claimed
by the Government that the Constitution didn't provide for any special
protection for the right to private information.
"No individual shall be deprived of his life or personal liberty except
pursuant to process provided by
law," states Article 21 of the U.S. Constitution, according to the Supreme Court. For instance, legislation
criminalizing same-sex partnerships, including prohibitions on meat and alcohol
use in several States of India, is expected to face constitutional challenges in the wake of this historic
decision. Observers also anticipate that the Indian government would put in
place a data protection framework to safeguard
citizens' privacy. In addition, privacy
advocates will likely use the case to further the constitutional discussion in other nations
on privacy.13
3.
Shakti Vahini
v. Union of India Case Analysis
A.
Case Summary
To put an end to honour killings
in India, the court in Shakti Vahini
v Union of India handed
down rules that the
government must follow if it wants to succeed. Homicide committed by family members because the perpetrators believe
the victim violated communal or religious values, resulting in shame or disgrace
for the whole family, is known as an honour killing. Choice-making is a crucial aspect
of freedom and dignity that cannot be separated. To put it another way, as French
philosopher and scholar Simone Weil stated, "Liberty is the
power to choose."
When
a person's freedom of choice is trampled upon in the sake of class pride, and
their physical form is regarded with
utter contempt, a chilling effect spreads across society. Marriage of inter- caste is not prohibited under the Hindu
Marriage Act or any other legislation, according to the Supreme Court in Lata Singh v. State of Utter Pradesh. This is a
democratic and free nation, the court said, therefore a person may marry whoever
they choose after
they become a major.
B.
Issue
Should family elders be permitted
to murder young people who marry against
their better judgement and against the grain?
C.
Arguments
Petitioner's arguments Petitioners were happy since the IPC does not deal
with honour killing in an acceptable
manner. Khap panchayats have no remorse or remorse when it comes to doing criminal acts. In addition, crimes like
honour murders, according to the argument, are in violation of Art 21. They argued that honour is
more important than the will of two consenting adults, and as a result, they were treated inhumanely
as a result. The statement
of the respondent To address
13
Bhandari, V., Kak, A., Parsheera, S., & Rahman,
F. (2017). An Analysis of Puttaswamy: The Supreme Court's
Privacy Verdict. IndraStra Global, (11), 5.
honour
crimes, the Union government has said that it is collaborating with state
governments to either modify the IPC
or create new laws. In addition, the 'The exclusion of interfering with the Freedom
of matrimonial Alliance
Bill' is being considered, according to the submission.
D.
Judgment
Two adults do not need the permission of their families and elders to be
married, according to the court in
this instance. The Khap panchayat, or any other organisation, may not try to
stop them from marrying one other. A
person's right to freedom of choice is guaranteed by our humane constitution. "Class honour, however
perceived, cannot suffocate
an individual's decision." According to the SC's reference to the Law Commission's 242nd
report, Khap panchayat-ordered crimes
aren't the only kind that have catastrophic consequences. It falls under the
category of crimes motivated
by honour. Attempts
to stifle a person's decision
to marry for love are prohibited by law.14
4.
Lata Singh v Union
of India Case Analysis
A.
Case Summary
In terms
of Indian law, the Lata Singh v. State of Uttar Pradesh
judgement marks a watershed event
in recent history. An individual by the name of Lata Singh petitioned the Hon'ble Justices Markandey Katju and Ashok Bhan, JJ. under
Article 32 of the Constitution to have her right to marry a person of her choice against
her will enforced,
and they approved
her request. TheSupreme Court decided in her advantage, and as a consequence of that
decision, the police were obliged to protect her.
The
"Hadiya case" is a landmark decision by Hon'ble Justice D Y
Chandrachud in the issue of Shafin
Jahan vs. Asokan K.M. and Ors., in which he upheld the Constitution of India.
In India, it was a landmark decision
in the fight for women's right to marry whoever they choose. In the instance of Hadiya, the lady is Hindu, but
she is married to a Muslim, which is unusual. As a consequence, she converted
to Islam and changed her name to Sharifa. The Kerala High Court
14 “Tomar, Sakshi,
and Legal Edge Tutorials. "Case comment: Navtej Singh Johar & Ors. Vs. Union of India & Ors."
(2019).”
granted
him habeas corpus as a consequence of his plea, which he filed under Article
226 of the Indian Constitution, resulting in his release.
Hadiya's parents
filed a lawsuit
against her husband,
claiming he was an adulterer. Despite her age of 25, the High Court maintained her father's right
to custody and granted it to him. Because most
people in India are unaware of women's right to choose and consent in
marriage, the rights of Indian women are still largely unaddressed. According to Article
12, both men and women should have the
right to marry when they reach marriageable age.
Considering the reasons presented by both parties,
the Supreme Court on March 8th found that the High Court erred in its judgement
while granting the writ of Habeas Corpus.
Facts show that before coming
in court, the appellant had acknowledged her marriage on November 27th,
2017. The High Court's decision and order were overturned, and the
appeal was granted.
The
Supreme Court confirmed Hadiya's marriage to Shafin Jahan and handed down its
verdict in Hadiya's favour, thus the
High Court's judgement was deemed illegal by the Supreme Court. On April 9th, 2018, it handed down a
judgement outlining the factors that led to that outcome. Fundamentally, it concerned with people's
freedom of religion, choice of spouse, and choice of life partner. To have one's Fundamental Rights safeguarded, a
person may use Article 226 of the constitution's
Article 32, which stipulates constitutional remedies.
It
was a case in which the petitioner had resided with her brother, and after
attaining the age of adulthood, she
made the decision to leave the home on her own in order to marry a man of her choosing
who belonged to another caste.
She and her husband were married at Arya Samaj Mandir and also had a daughter together;
nevertheless, her brothers were against to her marriage and tormented both their family and the
husband's family. The husband's family were wrongfully implicated in a case and spent many days in jail as a result.
The court accepted Lata's plea and ordered
her to be protected by the police, saying that she had the right to choose her
life partner freely. This storey
illustrates how people are killed in the name of caste honour despite the pain they face if they marry outside their caste.
B.
Issue
To what extent is the Writ Petition filed under Article
32 by the Petitioner to grant certiorari/mandamus and to quash Sessions
Trial No. 1201 of 2001 in sections 366 and 368 of the Indian Penal Code,
1860 stemming from FIR No. 336
of 2000 maintainable?
C.
Facts of the present case
The petitioner is a recently graduated young lady. Her master's degree in
Hindi was still pending when she met
him at Lucknow University. She's now twenty-six years old, nearly twenty-seven. She moved in with her brother Ajay Pratap Singh
after their parents
died suddenly at LDA colony.
In 1997, while still
living with her brother, she completed
her intermediate education.
The
petitioner claims that on November 2, 2000, she voluntarily left her brother's
home and married Bramha Nand Gupta at
Arya Samaj Mandir in Delhi, where they had an unmarried child. The petitioner's brother
reported his sister missing to the Sarojini
Nagar Police Station
in Lucknow on November 4th, 2000. After filing a
complaint, the police detained two of Lata's husband's sisters, as well as her spouse, her husband's husband, and
Lata's husband's cousin.
It
is further claimed that the petitioner's brothers, Shashi Pratap Singh, Anand
Pratap Singh, and Ajay Pratap
Singh were dissatisfied with the decision
to have their sister marry
outside their caste.
Because of this, they reportedly went to the husband's family home and
assaulted his mom and uncle before
throwing furniture and other things out of the house and locking it with a lock
that they had made themselves. The
petitioner's partner's brother was allegedly kept in a room for 5 days without
food or water by the petitioner's husband's siblings, according to the petitioner.
The
petitioner's siblings allegedly threatened to murder her husband and other
members of her family, according to
the complaint. Because of Lata's brothers' threats and violence, her in-laws were reluctant to go to Lucknow. Her
brothers were enraged by Lata's inter-caste marriage with her husband, Bramha Nand Gupta, and they conspired to frame the petitioner's spouse
and family, according to the allegations.
To protect
her husband and family from her brothers'
abuse, the petitioner fled from pillar to post. To
protect herself and her husband, she went to the Rajasthan Women's Commission
in Jaipur. The Commission took down
her statement and sent it to the Chief of Police. The SHO of Police Station Sarojini Nagar in Lucknow
presented a final report. According to the report, none of the accused
had committed any crime, and on May 17th, 2001, they were all freed on bond. Later, the
investigative
officer recorded Lata's statement and armed guards were given for her safety
and protection. As per Section 164 of
the Cr. P.C., on May 29th, 2001, the Hon'ble Chief Judicial Magistrate took her statement and kept it
on file. The petitioner, Lata, claimed that she married Brahma Nand Gupta voluntarily and without
being forced. Despite this, on October 5th, 2001, the Chief Judicial Magistrate issued the committal order.
The
Police Department received a protest petition claiming that the solicitor was
psychologically unfit. When she was
checked by a doctor, it was determined that she had no mental condition of any kind.
D.
Judgement
The Supreme Court granted the writ petition because of the specific facts
of this case. There is a Supreme
Court decision saying that those who commit acts of violence and harassment
shall face harsh penalties. The
relevant authorities were ordered to initiate criminal procedures against the petitioner's siblings and other parties
involved. According to the court, the petitioner is a major and has always been a major. As a result,
she may marry whomever she wants, and the Hindu Marriage Act or other legislation places no restrictions on
inter-caste unions. As a result, neither the petitioner nor her husband (or any
of his ancestors) committed any wrongdoing.
Session
Trial No. 1201/2001 captioned "State of Uttar Pradesh vs. Sangita Gupta
& Ors." which resulted from
FIR No. 336/2000 filed at Police Station Sarojini Nagar, Lucknow and ongoing before the Fast-Track Court, Lucknow was
thus cancelled, as were the warrants against the accused.
5.
Smt. Noor Jahan Begum
v state of up and ors 2014 Case Analysis
A.
Case Summary
Muslim males married Hindu girls in a Muslim wedding rite called Nikah in
the instance of Noor Jahan Begum, who had converted from Hinduism to Islam. Both couples petitioned the Allahabad High Court for police protection in a
series of writ petitions. The question was whether a Hindu girl's conversion to Islam only for the
sake of marriage to a Muslim guy, even if she had no prior knowledge
of Islam, was legal. As a result, the petitions were thrown down by the Supreme Court
as being unfounded.
Additionally,
the Court cited its judgement in Lily Thomas v. Union of India, in which the
Court observed:
"If someone
wants to convert
from Christianity to Islam, it must be done with their free permission and the trust they have in Allah
or Prophet Muhammad. Only then can their conversion be deemed genuine. If the only reason for the conversion is to assert one's rights,
avoid marriage, oraccomplish some other egotistical goal unrelated to religious
convictions, it cannot be consideredgenuine. An individual's decision
to change their faith is only legitimate if they do so honestly
andwith a willing
heart, leaving their former religion behind." On these grounds, the
Allahabad HighCourt rejected the married couple's appeal.
B.
Judgement
Significantly, the court noted, “We do not see Priyanka Kharwar and
Salamat as Hindu and Muslim, rather
as two grown up individuals who out of their own free will and choice are
living together peacefully and happily over a year.”
“The
Courts and the Constitutional Courts in particular are enjoined to uphold the
life and liberty of an individual
guaranteed under Article 21 of the Constitution of India. Right to live with a person of his/her choice irrespective of
religion professed by them, is intrinsic to right to life and personal
liberty”, the Division
Bench added. The Bench reiterated, “Decision of an individual who is
of the age of majority, to live with an individual of his/her choice is
strictly a right of an individual and
when this right is infringed it would constitute breach of his/her fundamental
right to life and personal liberty
as it includes right to freedom of choice, to choose a partner and right to live with dignity as enshrined in Article
21 of the Constitution of India.”
With
admiration to the FIR listed for the petitioner, the court said, “Before
parting we wish to reiterate that we
are quashing the FIR primarily on the ground that no offences are made out, as discussed above, as also the fact that two
grown-up individuals are before us, living together for over a year of their own free will and choice.” The court also
recommended that “We, however, expect the daughter to extend
all due courtesy and respect to her
family.”
G.
Prohibition of Unlawful conversion of Religion Ordinance
2020, UP and
other
state anti-conversion laws
Analysis
It
was issued on November 27th, 2020, the Uttar Pradesh Prohibition of Unlawful
Conversion of Religion Ordinance
(2020). According to the legislation, undertaking a religious conversion must follow
a certain process, and converting against the law is
prohibited.
To
become a different religion, follow these steps: To comply with the law, people
and religious convertors must notify
the District Magistrate in advance of their intent to convert religiously (DM).
A jail sentence of six months to three years as well as a fine of at least 10,000 rupees is applicable (for those undergoing conversion),
whereas a prison sentence of one to five years or a fine of at least 25,000 rupees is applicable to
non-converts (for convertors). If there's a violation, the conversions will be thrown out. A police inquiry
of the planned conversion's motivation, purpose,
and justification must be undertaken after the DM gets both
statements.
The converted individual has 60 days from the date of conversion to make a declaration to the DM. A
person's previous and new religious affiliations will be included in the
declaration. A copy of the
declaration will be displayed by the DM until the date of certification of the
conversion and any objections to the
conversion will be recorded by the DM. DM. To prove his/her identity, the convert
must appear before the DM no later than 21 days after
submitting the statement and affirm the declaration's contents. The
conversion will be deemed invalid if any of these steps are not followed.
Force,
deception, undue influence, and allurement are all prohibited by the Ordinance,
as is fraud or marriage as a means
of causing religious conversion. Additionally, it makes it illegal for anybody to assist, persuade, or conspire
in such conversions. Reconversion to one's former faith is, however,
permitted.
Relationships
that have undergone a religious conversion: A marriage may be deemed null and invalid
under the Ordinance if
(i)
It was carried
out solely for the aim of converting someone
illegally or vice versa
(ii)
The process for converting to a different
religion was not followed.
Penalties
for inducing or assisting an illegal religious conversion are set out in the
Ordinance and include the
following: Repeat offenders face a penalty that is two times as harsh as the
first time they broke the law. The
guilty would also have to pay the victim of conversion compensation of up to 5 lakh rupees.
The Ordinance has no
bail requirements, and all offences are non-bailable.
H.
Fundamental right of freedom
of religion
Articles
25-28 of the Constitution of India protect religious freedom as a basic right.
When independence in 1947, modern
India became a secular state
after the Indian constitution's wording
was revised in 1976. The Indian Supreme Court held that India already a
secular state when it established its
constitution, and all this amendment did was make explicit what had previously been implied in articles 25 to 28. In
India, every single person holds the freedom to peacefully practice and promote his or her faith. A
number of instances of religious intolerance have led to riots and bloodshed, such as the 1984 Delhi Anti-Sikh Massacre
in Delhi, the Kashmir and Punjab Anti-Hindu Riots in 1990, the Gujarat
Riots in 2002, and the Odisha Anti-Christian Riots in 2008. Despite
worldwide criticism, several of those responsible for the Anti-Sikh Massacre in
Delhi in 1984 remain at large.15
15 “Donald, Alice,
and Erica Howard.
"The right to freedom of religion or belief and its intersection with other rights." (2015).”
I.
Conclusion
Human behavior is shaped in large part by religious
ideas and beliefs.
The globe is now experiencing many crises, one of which is
a religiously motivated conflict. A state must recognize the sensitive nature
of religious freedom
problems while simultaneously doing its part to maintain
societal harmony, making government regulation of some activities a
necessity. Any democratic administration
has the problem of maintaining a healthy balance between individual freedom and the needs of the society. Article 25 of
India's Constitution and Articles 18 and 19 of international human rights treaties, such as the
Universal Declaration of Human Rights and the International Covenant on Civil and Political Rights,
guarantee the right to freedom of conscience, which includes the right to change faith (ICCPR). One's ability to
change religion includes the freedom to
choose and select whatever faith one adheres to in the first place. No one
could be subjected to undue influence
that may infringe their right to maintain
one's selected religious ideology or belief
system, according to ICCPR article 18. Although propagation as a method
of converting others is only seen
in a few faiths, this does not entail that this right is unassailable in all
cases. Article 25(1), the constitution's weakest protection of religious freedom,
allows for restrictions on the right
of conversion. Instead
of ensuring that a person's
emerging religious identity
causes societal havoc,
the state is responsible for protecting both the individual and the
social fabric as a whole. As a result,
the state has a duty to respect and protect individual rights. While religious
freedom is essential for the complete
evolution of the individual intellect and individuality, it cannot be the only criterion
for declaring the Acts unlawful and invalidate them as a result.
Article Information
RELIGIOUS CONVERSIONS AND INTERFAITH MARRIAGES - A CONSTITUTIONAL ANALYSIS OF ANTI-CONVERSION LAWS
Authors: HARSHIT YADAV, DR. ANNIRUDH VASHISHTHA
- Journal IJLRA
- ISSN 2582-6433
- Published 2024/04/26
- Issue 7
About Journal
International Journal for Legal Research and Analysis
- Abbreviation IJLRA
- ISSN 2582-6433
- Access Open Access
- License CC 4.0
All research articles published in International Journal for Legal Research and Analysis are open access and available to read, download and share, subject to proper citation of the original work.
Disclaimer: The opinions expressed in this publication are those of the authors and do not necessarily reflect the views of International Journal for Legal Research and Analysis.