On July 1, the single judge bench of Rohit Ranjan Agarwal at the Allahabad High Court rejected the bail plea of one Kailash, who is booked under Uttar Pradesh’s stringent anti-conversion law (The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021) and accused of ‘illegally’ converting villagers in Uttar Pradesh’s Hamirpur to Christianity. While rejecting the bail application, the court said “It has come into notice of this Court in several cases that unlawful activity of conversion of people of SC/ST castes and other castes including economically poor persons into Christianity is being done at rampant pace throughout the State of Uttar Pradesh. This Court, prima facie, finds that the applicant is not entitled for bail.” Pertinently, as per the FIR, the accused has been booked under Section 365 of the IPC (Kidnapping or abducting with intent secretly and wrongfully to confine person) and Section 3/5(1) of the U.P. Prohibition of Unlawful Conversion of Religion Act, 2021 (punishment for illegal conversion).

Significantly, in 1977, in a significant ruling –Rev. Stainislaus v. State of Madhya Pradesh [(1977) 1 S.C.C. 677)] – a five-judge bench of the Supreme Court made a distinction between propagation and conversion, and ruled that the former is a fundamental right while the latter is not an absolute right.

As per the complainant (“informant”) Rampali Prajapati, Kailash had taken away her mentally ill brother from Hamirpur to Delhi for attending the social gathering and ceremony for the “well-being”, and promised to treat her brother’s illness while assuring his return to the village in a week. As per the FIR registered at Maudaha Police Station in Hamirpur district (No.201 of 2023), when the informant asked about the whereabouts of her brother as he did not return after a week, no satisfactory response was provided by the accused. The FIR also mentions that many persons from the same village were taken to such gatherings and were converted to Christianity.

Kailash’s lawyer Saket Jaiswal rejected the charges and argued that Ramphal, brother of the complainant, was not converted to Christianity and he is not Christian to date. He further said that Ramphal had merely attended the gathering of Christian faith along with several other persons and the statements of various persons recorded by police cannot be taken into consideration at this stage. Jaiswal also brought to the notice of the court that Sonu Paster, who was holding such gathering, has already been enlarged on bail.

In response, the prosecution relied on the “statements of the witnesses” to contend that Kailash had been taking away people from his village for the purpose of converting them to Christianity, and for this act he was being paid huge money.

The problematic interpretation of Article 25 by the Allahabad High Court

After hearing both the parties, Justice Agarwal in his concluding remarks noted that “Article 25 of the Constitution of India provides for Freedom of conscience and free profession, practice, and propagation of religion, but it does not provide for conversion from one faith to another faith.”

The relevant part of the Article 25 of the Indian Constitution reads, “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, practice 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…”.

On the interpretation of “Propagation” as mentioned in Article 25, the verdict notes that the said word “…means to promote, but it does not mean to convert any person from his religion to another religion.” Notably, it does not cite any judicial precedent or case law at any place in its order for supporting its interpretation or judicial reasoning.

Conclusion

The judgement notes that “serious allegations” have been raised against the accused and the statements recorded by investigating officer reveal that “Kailash had been taking away people to attend the religious congregation held at New Delhi, where they are being converted into Christianity.” Furthermore, the court said the brother of the informant never returned back to the village. Justice Agarwal wrote in its concluding remarks that “If this process is allowed to be carried out, the majority population of this country would be in minority one day, and such religious congregation should be immediately stopped where the conversion is taking place and changing religion of citizen of India.”

The judgement curiously maintains that Article 25 of the Indian Constitution does not allow religious conversion, but “only provides freedom of conscience and free profession, practice and propagation of religion.” Such judicial interpretation devoid of any reliance on judicial precedent is dangerous and deleterious for the fundamental rights of the citizens as it ends up upending the very purpose of Part III of the Indian Constitution which guarantees inviolable basic rights to its citizenry, including right to practice and propagate religion as contained in Article 25. Even the draconian anti-conversion laws enacted by several states across India, which severely restricts religious and personal freedom, including freedom to convert one’s religion, does not unqualifiedly ban the conversion as this judgement seems to do. Most importantly, while these anti-conversion laws have been challenged as unconstitutional and violative of Article 25, among others, the present judgement says that Article 25 itself proscribe religious conversion!

In the landmark case of Rev. Stainislaus v. State of Madhya Pradesh [(1977) 1 S.C.C. 677)], the five-judge bench of the Supreme Court made a distinction between propagation and conversion, and ruled that the former is a fundamental right while the latter is not an absolute right. The judgement said that the freedom to propagate religion does not include the right to convert another person to one’s own religion but qualified that such a conversion would be illegal only if it is done by force, fraud, or allurement.

The Allahabad High Court judgement can be read here:

Related:

Allahabad HC: Repeated rejection of police protection pleas of interfaith couples, here’s why this is problematic | CJP

Allahabad High Court quashes FIR against couple accused of ‘conversion’ accusations, upholds freedom of choice | CJP

Allahabad and Madhya Pradesh High Courts issue conflicting rulings on interfaith marriage under Special Marriage Act | CJP

Allahabad High Court stands firm on personal liberty interfaith marriage ruling | CJP

The post Allahabad High Court rejects bail plea in alleged conversion case; says Article 25 does not provide right to convert religion appeared first on SabrangIndia.

Over 12,000 persons have signed an urgent petition to the Governor of Jharkand urging against constitutional endorsement of a anti-democratic law sought to be passed by the Jharkand Government. At present, a law passed by the Jharkand assembly is pending before her. The Governor of the State of Jharkhand in India has a big decision to make regarding the thousands of Christians and other religious minorities residing in her state. On August 1, 2017, the Jharkand Assembly has passed this controversial law.

Jharkhand Governor Draupadi Murmu has to decide on an anti-conversion Bill passed by the State Assembly earlier this month. If Murmu allows the Bill to become law, she risks putting in harm’s way Christians and other religious minorities living in Jharkhand, the petition says. Only five states in India now have such laws. But of those five states, two are among the top three states in India where violence against Christians is highest, the petition outlines.

Anti-conversion laws are supposed to stop people converting from Hinduism to Christianity. But, what they really do is infringe on the right of an Indian citizen to practise their religion as they see fit…and, to a right to privacy – both of which are guaranteed by India’s federal Constitution. The petition also says that there is no need of a new law: India’s federal Penal Code, Section 295(A), already deals with the issue of sectarian harmony, and the use of coercion and, or, “allurements” to entice people to convert from Hinduism to Christianity. These laws command stiff penalties, ranging from fines to imprisonment.

The  BJP, India’s ruling suprmecist party, is seeking to impose its Hindutva (Hindu nationalist) ideology in state law, so as to consolidate its political backing by those who vote for the party strictly for ideological-religious considerations. In line with that type of thinking, the new Bill is designed to make conversions more difficult because they will be made public – and, therefore, the convert may be subject to intimidation from his or her neighbours, family, colleagues, et al. Indeed, Section 5 of the Bill demands that any convert first seek the permission of the Deputy Commissioner of Jharkhand, and provide the details of the person who is performing the conversion.

Of course, a party, like the BJP, which is reliant on Hindu nationalists for its survival, might try to enact such legislation. But, local Christian leaders have queried the party’s evidence of “mass conversions” to Christianity, and insist that the party has not even demonstrated that such conversions are happening at all. It is further argued that there have not been any cases of violations of these laws in others states; on the contrary the mere existence of these anti-free choice provisions gives a coercive handle to the state macginery to act in close complicity with right wing organisations to intimidate and even incite violence against Christians. Conversions, if at all they are occurring for any other reason than for the lexercise of free choice by the individual indian guaranteed under article 25 of the Indian Constitution ‘the freedom to freely practice and propagate one’s faith.” This petition does not stress on all the aspects of “Fundamental Rights ” of Indian citizens.” It argues that the Indian State cannot mortgage the personal liberty of (choosing a faith) of a citizen in the hands of a petty bureaucrat like Dy Commisioner / Collector/ District Magistrate/ any one else. 

Now, several local, Christian organisations have joined, together, under the name “Rastriya Isai Mahasangh” (meaning, National Christian Federation), to oppose this measure as they are afraid that it will lead to the harassment of the Church and missionaries. Under these circumstances, the petition appeals to Jharkhand State Governor, Hon Draupadi Murmu, to return this Bill to the State Assembly, unapproved.
The petition may be read here and is also being copied to the US Secretary of state. Signatories have been asked to address their support petitions to:
 

• Jharkhand State Governor – Hon Draupadi Murmu
• The Prime Minister of India – Hon Narendra Modi
• US Secretary of State – Mr Rex Tillerson

The petition cleraly says that ” By allowing this Bill to become law, you will, therefore, likely be making Jharkhand a more dangerous place for Christians and other religious minorities, precisely because Hindu nationalists are emboldened by such measures and sometimes use violence in place of dialogue. In fact, two of the top three states, where violence against Christians is highest, have enacted anti-conversion laws.”

Moreover, “the likelihood of communal disharmony, which will be disproportionately borne by Christians and other religious minorities, is too high a price to pay for internal or regional political considerations. Especially, when the federal Penal Code already deals sufficiently with these issues.”

Related Articles:

1. Sangh Bares Fangs in Jharkand
 
 

The post Don’t Trample on Freedom of Faith: 12,000+ Sign Petition to Jharkand Governor appeared first on SabrangIndia.

Representational image. Courtesy: satyavaijayi

In Islam, ‘Halala’ is a term that finds its roots in ‘Halal’ that translates to something that is permissible, and therefore ‘lawful’. In context of marriage then, it means that a divorced woman can become ‘Halal’ (lawful) for her husband again after the process of Nikah Halala.

Islam dictates that a Muslim man has the liberty to divorce and remarry the same woman twice. However, if he decides to dissolve the marriage for the third time, he can only remarry the same woman if she first marries another man, consummates the marriage and only if the man dies or willingly asks for divorce, can the woman go back to her first husband and remarry him.

Once the wife is divorced she becomes haram (forbidden for the husband).it is a highly erroneous belief that if she wants to remarry the earlier husband she will have to consummate her marriage with another man and then get a divorce from him to become eligible to join her former husband. This is not an issue of how you debate or argue a case to make it a perfect  crime. It is a matter of one’s spiritual intention. it is a matter of one’s connection with the Supreme. Halala is actually a provision which allows a woman to remarry a husband if such circumstances occur in the normal course and are not pre-engineered. The Qur’an visualizes pre-ordained marriages between the estranged couple while laying down this stipulation.

What is being talked of today are pre-planned halala marriages to circumvent the Islamic law of talaq.

What is being talked of today are pre-planned Halala marriages to circumvent the Islamic law of talaq.

The Qur’an expounds:
 

A man is entitled to take his wife back twice after two respective talaqs and for a third time also before the expiry of her Iddat (menstrual cycles) after he gives her a talaq for the third time. But after that the separation is irrevocable. She is then free to be married to any other person of her choice. If then in the normal course of life a dispute between them develops leading to first talaq by the second husband, she is again free to be married to any person of her choice including the second husband (by whom she has got the first divorce) and also including the first husband as well.

The relevant point here is that a halala cannot be planned in advance, as a nikah between her and the second husband with an understanding of a divorce afterwards will not be valid. If she does so, it will be an illegitimate relationship with the second husband and with the first husband also with whom she comes to live after a pre-planned halala.

Imam Sufian Sauri says: “If someone marries a woman to make her halala (for her ex-husband) and then wants to keep her as wife, he is not permitted to do so unless he solemnises a nikah afresh, as the previous nikah was unlawful.” (Tirmizi)

The distorted interpretation is used as a ploy to circumvent the Shariah which is not just emphatic on this rule but is very stringent about it.”

In his ‘Marriage, Divorce and Re-Marriage (Halala) in Islam’, Zafar Iqbal Kalanauri elaborates this theology:

“There is no concept of halala in Islam. This is something that has been made by some Muslims and unfortunately is now seen as part of the Shariah by some Muslims. The rule of the Holy Quran is that if a man divorces his wife for the third time in one marriage contract, then the wife cannot go back to the man unless she (genuinely) marries another man and then (genuinely) is divorced by that man… this rule should not be dealt with by pre-planned marriage and divorce.”

Prophet Muhammad declared halala as profane, Caliph Umar considered it worth stoning, and Caliph Usman considered it devoid of the trait of the nikah (marriage contract). 

There are two Hadiths (sayings of Prophet Muhammad):
 

Article 25 of the Indian constitution speaks of religious freedom. It begins with the words, “Subject to morality, health and public order, and all other fundamental rights, people shall have freedom of religion.”
Conditions come first; parameters come first, permission comes later.

The Article does not say that everybody will have unrestricted freedom of religion or what he believes to be freedom. It begins with, “Subject to.…” Other provisions mean right to equality, equality before law, gender justice, etc. It is subservient to other articles within this part. If there is a conflict, other provisions prevail.

Thus halala marriage is thus just not immoral; it is against the national laws.

Moin Qazi is the author of the bestselling book, Village Diary of a Heretic Banker. He has worked in the development finance sector for almost four decades .

This article was first published on New Age Islam.
 

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‘AMU is not a Minority Institution,’ says the Modi government to the SC

 
Showing its true colours on issues related to minority rights, the Central government dominated by the supremacist Rashtriya Swayamsevak Sangh(RSS) has opposed the minority status of the Aligarh Muslim University (AMU). In a complete turnaround from the earlier Central government, under UPA I and II, that had challenged a judgement of the Allahabad high court reversing AMU's minority status, the Modi government has withdrawn its name as one of the petitioners challenging the 2005 Allahabad high court verdict.[1] The Supreme Court had stayed implementation of the high court judgement in 2006.

Making the submission in the Supreme Court, attorney general, Mukul Rohatgi said, “It is the stand of the Union of India that AMU is not a minority university. As the executive Government at the Centre, we can’t be seen as setting up a minority institution in a secular state.” He was referring to the Aligarh Muslim University Act, 1920 that was subsequently amended by Parliament twice in 1951 and 1981. The stand came as a surprise to the three member bench consisting of Justices JS Khehar, MY Eqbal and C Nagappan who pointed out that this stand of the Centre was contrary to what was filed previously by the Centre before this court and the Allahabad HC. Justice Eqbal asked, “With the change in Government, can you change your stand?” The Bench has asked Rohatgi to file an affidavit in this regard and posted the case for hearing next on April 4, 2016.

Communalism Combat has been analysing and tracking the issue of the minority status of the AMU for the past decade. We bring you some of our archival issues that trace the background of establishment of this institution as also the erosions in certain principles that require rectification.

Advocate Mihir Desai author of a book on the subject [2] analysed for us the grave fallacies in the verdict of the Allahabad high court. Faizan Musatafa, then registrar of the AMU too argued how the judgement was bad in law. CC brought to its readers a critical dimension to the issue when we investigated and found that communal reservations at Aligarh Muslim University have struck at the very character and repute of the institution. Noted scholar Asghar Ali Engineer argued that while the Aligarh Muslim University is, without doubt, a minority institution, it must allow reservations for Backward Caste Muslims.

We bring to our readers the various dimensions of the issue that has a crucial bearing on minority rights within a democracy.

Links to 2005 Communalism Combat issues archived here

1.  The Case of the Aligarh Muslim University, 2005 : Alas, Your Lordships!
2.  Minority Institutions: Rights or Privilege?
3. Wong in Law 
4. No to Communal Reservations
5. Flawed Judgement

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