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No coercive action against voluntary religious conversion: MP High Court

Madhya Pradesh High Court bars state government to mandate inter-faith couples to declare conversion before district administration

Sabrangindia 18 Nov 2022

inter-faith couples
Image Courtesy: indialegallive.com

The Madhya Pradesh High Court has barred the state government from using coercion against anyone who disobeys section 10 of the MP Freedom of Religion Act, which requires anyone who wishes to convert to another religion to notify the district administration in advance. The petitioners had asked the court to invalidate the MP Freedom of Religion Act 2021 as being unconstitutional.

The Madhya Pradesh High Court then issued this significant ruling, prohibiting the State Government from using coercion against anyone who violates Section 10 of the Madhya Pradesh Freedom of Religion Act, 2021, which calls for anyone wishing to change their religion to make a declaration to the District Magistrate.

A bench of Justice Sujoy Paul and Justice Prakash Chandra Gupta further ordered the state not to prosecute the adult citizens if they solemnize the marriage of their own free will after finding section 10 to be prima facie unconstitutional.

Section of the MP Freedom of Religion Act, 2021 reads as follows:

Text

Description automatically generated

On Tuesday, the division bench had reserved decision on a number of petitions seeking to keep interfaith weddings beyond of the Act's reach and challenging the constitutionality of the 2021 Act.

In one of the pleas, a specific prayer was made to strike down Sections 2(a), 2(b), 2(c), 2(d), 2(e), 2(i), 3 (Prohibition of conversion from one religion to another), 4 (Complaint against the conversion of religion), 5 (Punishment for contravention of Section 3), 6 (any marriage performed in contravention of Section 3 shall be deemed null and void.), 10 (Declaration before conversion of religion) and 12 (Burden of Proof) of the Act.

Contentions of the Petitioner:

The 2021 Act, according to the petitioners, is unconstitutional and breaches the fundamental rights guaranteed by Articles 14, 19, and 25 of the constitution. An adult has the right to marry whoever they choose, as contended by the petitioners. However, if a marriage is performed under duress or covertly, the Act stipulates that the offender could face 3 to 10 years in prison.

The petitioners' main argument was that the 2021 act is blatantly illegal and that, as a result, the respondent/State should be prohibited from prosecuting anyone in accordance with the contested M.P. Freedom of Religion Act, 2021, while these proceedings are ongoing. It was further contended that the legislation grants the government unrestricted and arbitrary powers to prosecute persons and that it also aims to interfere with citizens' fundamental rights to practice their faith and marry a partner of their choice, regardless of caste or religion.

Additionally, it was argued that if the contested statute is allowed to stand, it will not only violate crucial fundamental rights but also disrupt social cohesion, highlighting the importance of every citizen's freedom to remain silent. The petitioners argued before the court with vigor that a citizen is not required to reveal either his current faith or his plans to convert to a new one.

The final argument stated was that Section 10 of the Act's requirement that people disclose their faith or their desire to change it may actually cause conflict in the community and jeopardize the convert's life or limb. As a result, it was made clear that the Act of 2021's necessity for prior information before conversion is a violation of a citizen's fundamental rights.

Contentions of the state:

The State contended that if interim relief is given, it will essentially amount to providing the petitioners with ultimate remedy because they are requesting a broad interim relief that cannot be granted. There was also a claim that the Court should uphold the constitutionality of the enactment.

Order and Rationale of the Court:

In order to emphasize that marriage, sexual orientation, and choice in connection to these characteristics fall under the purview of the right to privacy and have a direct bearing on the dignity of the individual, the Court first considered the rulings of the Apex Court, namely Lata Singh Vs. State of Uttar Pradesh and Ors. [(2006) 5 SCC 475] and LaxmibaiChandaragi B &Anr. v. State of Karnataka &Ors [LL 2021 SC 79].

The Himachal Pradesh High Court's judgment in Evangelical Fellowship of India and Anr. Vs. State of H.P. [(2012) SCC Online HP 5554], which ruled that a provision of the 2006 H.P. Freedom of Religion Act requiring citizens to inform the government of their desire to change their religion was unconstitutional, was also taken into consideration by the court.

In light of the aforementioned rulings, it's significant to note that the MP High Court also acknowledged that the freedom to choose a religion and the freedom to publicly express or refrain from publicly expressing those choices are both implicit in the Constitutional right to freedom of religion under Article 25. In regards to this, the Court determined that the petitioners had established a strong prima facie case for the granting of temporary protection in relation to the marriage of two adult citizens who are doing so of their own free will and against any coercive action for violating Section 10 of the Act.

Therefore, the Court ordered the State government to file its para-wise response within three weeks and directed the state to not punish the adult citizens if they solemnize the marriage of their own free will and not take coercive action for breach of Section 10.

The court directed to parties to finish filing their pleadings as soon as possible. After the pleading process is complete, the parties are free to submit the proper application in order to request an out-of-turn final hearing in this matter.

Gujarat High Court’s stay on the Gujarat Freedom of Religion (Amendment) Act, 2021

In August 2021, the Gujarat High Court Bench of Chief Justice VikramNath and Justice BirenVaishnavpassed an interim order rulingagainst the provisions of the Gujarat Freedom of Religion (Amendment) Act, 2021. It ordered that they said provisions will not apply to inter-faith marriages that take place without force, allurement or fraudulent means. The court had declared that the rigours of Section 3, 4, 4A to 4C, 5, 6, and 6A of the Gujarat Freedom of Religion (Amendment) Act shall not operate merely because the marriage is solemnised by a person of one religion with another, without force or by allurement or by fraudulent means and such marriages cannot be termed as marriages for the purposes of unlawful conversion.

Later in the same month, the Gujarat High Court refused to allow the state government’s plea seeking removal of stay on operation of section 5 of the Gujarat Freedom Of Religion (Amendment) Act, 2021. According to Section 5 of the law, it was mandated that religious priests must take prior permission from the district magistrate for converting any person from one religion to another.

The order can be read here.

Background: Anti-conversion laws in India

The Constitution guarantees the freedom to profess, propagate, and practise religion, and allows all religious sections to manage their own affairs in matters of religion; subject to public order, morality, and health. To date, there have been no central legislations restricting or regulating religious conversions. In 2015, the Union Law Ministry stated that Parliament does not have the legislative competence to pass an anti-conversion legislation. However, it is to be noted that, since 1954, on multiple occasions, Private Member Bills have been introduced in (but never approved by) the Parliament, to regulate religious conversions.

Over the years, several states have enacted ‘Freedom of Religion’ legislation to restrict religious conversions carried out by force, fraud, or inducements.  These are: (i) Odisha (1967), (ii) Madhya Pradesh (1968), (iii) Arunachal Pradesh (1978), (iv) Chhattisgarh (2000 and 2006), (v) Gujarat (2003), (vi) Himachal Pradesh (2006 and 2019), (vii) Jharkhand (2017), and (viii) Uttarakhand (2018).

Additionally, the Himachal Pradesh (2019) and Uttarakhand legislations also declare a marriage to be void if it was done for the sole purpose of unlawful conversion, or vice-versa. Further, the states of Tamil Nadu (2002) and Rajasthan (2006 and 2008) had also passed similar legislation.  However, the Tamil Nadu legislation was repealed in 2006 (after protests by Christian minorities), while in case of Rajasthan, the bills did not receive the Governor’s and President’s assent respectively.

About the Madhya Pradesh Freedom of Religion Act, 2021

The Madhya Pradesh (MP) Govt promulgated the MP Freedom of Religion Ordinance that was passed through a Special Session of the State Assembly on December 27, 2020 and officially notified in the State Gazette on January 9, 2021. While the state has provided the objective behind bringing this act to restrain any kind of forceful and illegal religious conversions done by religious organizations or extremist groups, in reality, this Act is just a tool for the harassment of young vulnerable couples who are deprived of their right to marry any individual on their free will.

The MP Act has a unique definition of “conversion” which states that “Conversion” means renouncing one religion and adopting another; but the return of any person already converted to the fold of his parental religion shall not be deemed conversion. The MP Act has an additional sub-section that such conversions, carried out in contravention of this provision “will be deemed null and void”.

The MP Act also states that that any marriage performed in contravention of section 3, which prohibits unlawful conversion from one religion to another, will be deemed to be null and void.

Section 10 of the Act requires an individual to give a declaration 60 days in advance to the DM that conversion is being done without any force, coercion, undue influence or allurement. The religious priest/convertor is required to give a similar notice 60 days in advance.

The MP Act has modelled on the UP Act, Uttarakhand Act and the Himachal Pradesh Act that penalises conversion from one religion to another for marriage. The MP Act is seriously problematic per se, as it is more stringent than its precursor from another state. For instance, the HP and Uttarakhand laws do not specify the fine to be imposed in case of contravention but the subsequent UP and MP ordinances specify the minimum amount of fine to be collected. Even in that the MP ordinance imposes higher amount of fine for the same offence, compared to the UP ordinance. Even the period of imprisonment is longer for similar offence in the MP ordinance, which is the latest law to be passed in this bandwagon of anti-conversion laws.

CJP’s plea in Supreme Court against the Anti-Conversion Laws

In December 2020, a PIL was been filed by Citizens for Justice and Peace against the then Uttar Pradesh Prohibition of Unwlaful Conversion of Religion Law 2020 and the Uttarakhand Freedom of Religion Act, 2018, ostensibly prohibiting forceful prohibition of conversion for the purposes of marriage.

The Petitioner-organization had contended in its petition that the provisions of the impugned Acts violate Article 21 of the Constitution as it empowers the State to suppress an individual’s personal liberty and impinge upon an individual’s right to freedom of choice and right to freedom of religion.

It further submitted that the “right to convert” oneself to another religion is manifested in Article 25 of the Constitution. However, the said Acts impinge upon this right by imposing unreasonable and discriminatory restrictions on it by mandating that the administration be informed of such intention and a probe be launched in such a personal and intimate exercise of one’s right.

Later, in February 2021, CJP then approached the Supreme Court seeking permission to challenge Love-jihad laws passed by Himachal Pradesh and Madhya Pradesh in its same plea which seeks to challenge the laws made by Uttar Pradesh and Uttarakhand against religious conversions for the sake of marriages. The Supreme Court had then allowed CJP to make Madhya Pradesh and Himachal Pradesh as respondent parties to the petition.

Related:

Guj gov't seeks removal of stay on operation of sec 5 of anti-conversion law
Anti-conversion law will not apply to inter-faith marriages unless there is force, fraud, allurement: Gujarat HC
CJP moves SC against “Love Jihad” laws
CJP’s Love Jihad Petition: SC issues notice to UP and Uttarakhand
“Love Jihad” laws curb individual and collective freedoms

 

No coercive action against voluntary religious conversion: MP High Court

Madhya Pradesh High Court bars state government to mandate inter-faith couples to declare conversion before district administration

inter-faith couples
Image Courtesy: indialegallive.com

The Madhya Pradesh High Court has barred the state government from using coercion against anyone who disobeys section 10 of the MP Freedom of Religion Act, which requires anyone who wishes to convert to another religion to notify the district administration in advance. The petitioners had asked the court to invalidate the MP Freedom of Religion Act 2021 as being unconstitutional.

The Madhya Pradesh High Court then issued this significant ruling, prohibiting the State Government from using coercion against anyone who violates Section 10 of the Madhya Pradesh Freedom of Religion Act, 2021, which calls for anyone wishing to change their religion to make a declaration to the District Magistrate.

A bench of Justice Sujoy Paul and Justice Prakash Chandra Gupta further ordered the state not to prosecute the adult citizens if they solemnize the marriage of their own free will after finding section 10 to be prima facie unconstitutional.

Section of the MP Freedom of Religion Act, 2021 reads as follows:

Text

Description automatically generated

On Tuesday, the division bench had reserved decision on a number of petitions seeking to keep interfaith weddings beyond of the Act's reach and challenging the constitutionality of the 2021 Act.

In one of the pleas, a specific prayer was made to strike down Sections 2(a), 2(b), 2(c), 2(d), 2(e), 2(i), 3 (Prohibition of conversion from one religion to another), 4 (Complaint against the conversion of religion), 5 (Punishment for contravention of Section 3), 6 (any marriage performed in contravention of Section 3 shall be deemed null and void.), 10 (Declaration before conversion of religion) and 12 (Burden of Proof) of the Act.

Contentions of the Petitioner:

The 2021 Act, according to the petitioners, is unconstitutional and breaches the fundamental rights guaranteed by Articles 14, 19, and 25 of the constitution. An adult has the right to marry whoever they choose, as contended by the petitioners. However, if a marriage is performed under duress or covertly, the Act stipulates that the offender could face 3 to 10 years in prison.

The petitioners' main argument was that the 2021 act is blatantly illegal and that, as a result, the respondent/State should be prohibited from prosecuting anyone in accordance with the contested M.P. Freedom of Religion Act, 2021, while these proceedings are ongoing. It was further contended that the legislation grants the government unrestricted and arbitrary powers to prosecute persons and that it also aims to interfere with citizens' fundamental rights to practice their faith and marry a partner of their choice, regardless of caste or religion.

Additionally, it was argued that if the contested statute is allowed to stand, it will not only violate crucial fundamental rights but also disrupt social cohesion, highlighting the importance of every citizen's freedom to remain silent. The petitioners argued before the court with vigor that a citizen is not required to reveal either his current faith or his plans to convert to a new one.

The final argument stated was that Section 10 of the Act's requirement that people disclose their faith or their desire to change it may actually cause conflict in the community and jeopardize the convert's life or limb. As a result, it was made clear that the Act of 2021's necessity for prior information before conversion is a violation of a citizen's fundamental rights.

Contentions of the state:

The State contended that if interim relief is given, it will essentially amount to providing the petitioners with ultimate remedy because they are requesting a broad interim relief that cannot be granted. There was also a claim that the Court should uphold the constitutionality of the enactment.

Order and Rationale of the Court:

In order to emphasize that marriage, sexual orientation, and choice in connection to these characteristics fall under the purview of the right to privacy and have a direct bearing on the dignity of the individual, the Court first considered the rulings of the Apex Court, namely Lata Singh Vs. State of Uttar Pradesh and Ors. [(2006) 5 SCC 475] and LaxmibaiChandaragi B &Anr. v. State of Karnataka &Ors [LL 2021 SC 79].

The Himachal Pradesh High Court's judgment in Evangelical Fellowship of India and Anr. Vs. State of H.P. [(2012) SCC Online HP 5554], which ruled that a provision of the 2006 H.P. Freedom of Religion Act requiring citizens to inform the government of their desire to change their religion was unconstitutional, was also taken into consideration by the court.

In light of the aforementioned rulings, it's significant to note that the MP High Court also acknowledged that the freedom to choose a religion and the freedom to publicly express or refrain from publicly expressing those choices are both implicit in the Constitutional right to freedom of religion under Article 25. In regards to this, the Court determined that the petitioners had established a strong prima facie case for the granting of temporary protection in relation to the marriage of two adult citizens who are doing so of their own free will and against any coercive action for violating Section 10 of the Act.

Therefore, the Court ordered the State government to file its para-wise response within three weeks and directed the state to not punish the adult citizens if they solemnize the marriage of their own free will and not take coercive action for breach of Section 10.

The court directed to parties to finish filing their pleadings as soon as possible. After the pleading process is complete, the parties are free to submit the proper application in order to request an out-of-turn final hearing in this matter.

Gujarat High Court’s stay on the Gujarat Freedom of Religion (Amendment) Act, 2021

In August 2021, the Gujarat High Court Bench of Chief Justice VikramNath and Justice BirenVaishnavpassed an interim order rulingagainst the provisions of the Gujarat Freedom of Religion (Amendment) Act, 2021. It ordered that they said provisions will not apply to inter-faith marriages that take place without force, allurement or fraudulent means. The court had declared that the rigours of Section 3, 4, 4A to 4C, 5, 6, and 6A of the Gujarat Freedom of Religion (Amendment) Act shall not operate merely because the marriage is solemnised by a person of one religion with another, without force or by allurement or by fraudulent means and such marriages cannot be termed as marriages for the purposes of unlawful conversion.

Later in the same month, the Gujarat High Court refused to allow the state government’s plea seeking removal of stay on operation of section 5 of the Gujarat Freedom Of Religion (Amendment) Act, 2021. According to Section 5 of the law, it was mandated that religious priests must take prior permission from the district magistrate for converting any person from one religion to another.

The order can be read here.

Background: Anti-conversion laws in India

The Constitution guarantees the freedom to profess, propagate, and practise religion, and allows all religious sections to manage their own affairs in matters of religion; subject to public order, morality, and health. To date, there have been no central legislations restricting or regulating religious conversions. In 2015, the Union Law Ministry stated that Parliament does not have the legislative competence to pass an anti-conversion legislation. However, it is to be noted that, since 1954, on multiple occasions, Private Member Bills have been introduced in (but never approved by) the Parliament, to regulate religious conversions.

Over the years, several states have enacted ‘Freedom of Religion’ legislation to restrict religious conversions carried out by force, fraud, or inducements.  These are: (i) Odisha (1967), (ii) Madhya Pradesh (1968), (iii) Arunachal Pradesh (1978), (iv) Chhattisgarh (2000 and 2006), (v) Gujarat (2003), (vi) Himachal Pradesh (2006 and 2019), (vii) Jharkhand (2017), and (viii) Uttarakhand (2018).

Additionally, the Himachal Pradesh (2019) and Uttarakhand legislations also declare a marriage to be void if it was done for the sole purpose of unlawful conversion, or vice-versa. Further, the states of Tamil Nadu (2002) and Rajasthan (2006 and 2008) had also passed similar legislation.  However, the Tamil Nadu legislation was repealed in 2006 (after protests by Christian minorities), while in case of Rajasthan, the bills did not receive the Governor’s and President’s assent respectively.

About the Madhya Pradesh Freedom of Religion Act, 2021

The Madhya Pradesh (MP) Govt promulgated the MP Freedom of Religion Ordinance that was passed through a Special Session of the State Assembly on December 27, 2020 and officially notified in the State Gazette on January 9, 2021. While the state has provided the objective behind bringing this act to restrain any kind of forceful and illegal religious conversions done by religious organizations or extremist groups, in reality, this Act is just a tool for the harassment of young vulnerable couples who are deprived of their right to marry any individual on their free will.

The MP Act has a unique definition of “conversion” which states that “Conversion” means renouncing one religion and adopting another; but the return of any person already converted to the fold of his parental religion shall not be deemed conversion. The MP Act has an additional sub-section that such conversions, carried out in contravention of this provision “will be deemed null and void”.

The MP Act also states that that any marriage performed in contravention of section 3, which prohibits unlawful conversion from one religion to another, will be deemed to be null and void.

Section 10 of the Act requires an individual to give a declaration 60 days in advance to the DM that conversion is being done without any force, coercion, undue influence or allurement. The religious priest/convertor is required to give a similar notice 60 days in advance.

The MP Act has modelled on the UP Act, Uttarakhand Act and the Himachal Pradesh Act that penalises conversion from one religion to another for marriage. The MP Act is seriously problematic per se, as it is more stringent than its precursor from another state. For instance, the HP and Uttarakhand laws do not specify the fine to be imposed in case of contravention but the subsequent UP and MP ordinances specify the minimum amount of fine to be collected. Even in that the MP ordinance imposes higher amount of fine for the same offence, compared to the UP ordinance. Even the period of imprisonment is longer for similar offence in the MP ordinance, which is the latest law to be passed in this bandwagon of anti-conversion laws.

CJP’s plea in Supreme Court against the Anti-Conversion Laws

In December 2020, a PIL was been filed by Citizens for Justice and Peace against the then Uttar Pradesh Prohibition of Unwlaful Conversion of Religion Law 2020 and the Uttarakhand Freedom of Religion Act, 2018, ostensibly prohibiting forceful prohibition of conversion for the purposes of marriage.

The Petitioner-organization had contended in its petition that the provisions of the impugned Acts violate Article 21 of the Constitution as it empowers the State to suppress an individual’s personal liberty and impinge upon an individual’s right to freedom of choice and right to freedom of religion.

It further submitted that the “right to convert” oneself to another religion is manifested in Article 25 of the Constitution. However, the said Acts impinge upon this right by imposing unreasonable and discriminatory restrictions on it by mandating that the administration be informed of such intention and a probe be launched in such a personal and intimate exercise of one’s right.

Later, in February 2021, CJP then approached the Supreme Court seeking permission to challenge Love-jihad laws passed by Himachal Pradesh and Madhya Pradesh in its same plea which seeks to challenge the laws made by Uttar Pradesh and Uttarakhand against religious conversions for the sake of marriages. The Supreme Court had then allowed CJP to make Madhya Pradesh and Himachal Pradesh as respondent parties to the petition.

Related:

Guj gov't seeks removal of stay on operation of sec 5 of anti-conversion law
Anti-conversion law will not apply to inter-faith marriages unless there is force, fraud, allurement: Gujarat HC
CJP moves SC against “Love Jihad” laws
CJP’s Love Jihad Petition: SC issues notice to UP and Uttarakhand
“Love Jihad” laws curb individual and collective freedoms

 

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