In an affidavit filed before the Supreme Court, the Union Government said that it is “cognizant of the gravity and the seriousness” of the issue of forced religious conversions. This affidavit is in response to a PIL filed by BJP leader Ashwini Upadhyay seeking measures to control forced conversions, the Union said that, “the relief sought in the present petition would be taken up in all seriousness by the Union of India and appropriate steps shall be taken as the Central Government is cognizant of the matter.”
Incidentally, on April 9, 2021, a three judge bench of the Supreme Court, (Justices Rohinton Nariman, BR Gavai and Hrishikesh Roy) had dismissed a previously filed PIL by the same petitioner, Ashwini Upadhyaya commenting, “ I don’t see a reason as to why any person above 18 cannot choose his religion. There is a reason why the word ‘propagate’ is there in the Constitution”, had observed Supreme Court judge Justice Rohinton Fali Nariman. These oral observation was made when a bench headed by him was hearing a PIL filed by Ashwini Upadhyaya seeking to control black magic, superstition & mass religious conversion of SC/STs through intimidation, threats & gifts. Also observing that the PIL was nothing but a “publicity interest litigation”, which was of a “harmful kind”, the bench warned the petitioner that heavy costs will be imposed if the matter was pressed. Following that, the petitioner withdrew the petition but had within three days on April 12, 2021 made a representation to the Ministry of Home Affairs. This was followed by the present petition filed in January 2022 (Ashwini Kumar Upadhyay vs Union of India – W. P. (C) 63/2022).
The present and ongoing petition has sought for direction to the Union and State Governments to take stringent steps in order to curb forceful religious conversion by intimidation, threats and deceivingly luring through gifts and monetary benefits. Upadhyay also sought directions to the Law Commission of India to prepare a Report as well as a Bill to control religious conversions.
The Supreme Court on the previous hearing on November 14, had termed the issue “very serious” and directed the Union to make its stand clear. In the affidavit filed in pursuance of the Court direction, the Ministry of Home Affairs stated “the right to freedom of religion does not include a fundamental right to convert other people to a particular religion. The said right certainly does not include the right to convert an individual through fraud, deception, coercion, allurement or such means”
November 14, 2022: Forceful conversion of religion will not only affect the Union of India but also affect the freedom of religion and conscience of individuals, the Supreme Court of India observed on Monday.
Terming this as a “very serious issue”, a Bench of Justices MR Shah and Hima Kohli asked the Union of India to make its stand clear by filing a counter affidavit in the matter within November 22.
November 18: No coercive action against voluntary religious conversion: MP High Court Four days later, the Madhya Pradesh High Court barred state government to mandate inter-faith couples to declare conversion before district administration. 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.
November 28, 2022, Supreme Court:
“The issue with respect to alleged conversion of religion, if it is found to be correct and true, is a very serious issue which may ultimately affect the security of the nation as well as the freedom of religion and conscience of the citizens. Therefore, it is better that Union government may make their stand clear and file counter on what further steps can be taken by Union and/or others to curb such forced conversion maybe by force, allurement or fraudulent means.”
Referring to the judgment of the top court in Rev. Stainislaus vs. State of Madhya Pradesh and Ors., the Union said, “The Hon’ble Court held that the word ‘propagate’ does not envisage the right to convert a person rather is in the nature of the positive right to spread one’s religion by exposition of its tenets.” The Supreme Court in the five-judge bench led by Chief Justice A. N. Ray had examined the scope of the words ‘propagate’ and ‘public order’. The Union further submitted that the Supreme Court in the judgment had upheld the enactments which sought to control and curb the menace of organized, sophisticated large scale illegal conversions.
Union stressed upon the fact that such enactments are necessary for protecting the cherished rights of vulnerable sections of the society including women and economically and socially backward classes. Union also pointed out that the States of Odisha, Madhya Pradesh, Gujarat, Chhattisgarh, Jharkhand, Uttarakhand, Uttar Pradesh, Karnataka and Haryana, have already made the legislations in this regard.
CJP’s Constitutional Challenges to State Laws against Autonomy and Free Choice
Early last week, the Supreme Court has agreed to hear the earlier (2020-2021) batch of petitions challenging the Freedom of Religious Acts introduced by some states legislatures in the name of ‘love jihad‘ against religious conversions done for the sake of marriages. Senior Advocate, CU Singh, appearing on behalf of ‘Citizens for Justice and Peace‘, one of the petitioners, mentioned the pleas before a Bench comprising the Chief Justice of India, DY Chandrachud, Justice Hima Kohli and Justice JB Pardiwala, for urgent listing.Informing the court about urgency of the matter, CU Singh informed the bench that the court had already decided the issue of right of change of faith being a part of fundamental right of choice in Shafin Jahan’s matter.
The petitions mentioned by the senior advocate CU Singh particularly challenge the constitutional validity of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020 and the Uttarakhand Freedom of Religion Act, 2018.
The Apex Court had also issued a notice in these batch of petition in January 2021. The laws promulgated by Madhya Pradesh and Himachal Pradesh also have been challenged before the court. Last year, Madhya Pradesh government made it mandatory for people to inform the officials two months in advance about interfaith marriage or willful conversion to another religion. Section 10 of the Madhya Pradesh Freedom of Religion Act stipulates punitive actions including imprisonment and penalty if an individual fails to adhere to the law.