Introduction

On May 17, 2022, the Governor of Karnataka promulgated the Karnataka Protection of Right to Freedom of Religion Ordinance, 2022 (“the Ordinance”). Similar Ordinances were promulgated in Uttar Pradesh and Madhya Pradesh in 2020 and 2021 respectively. Since the Parliament does not have the legislative competence, several states including Odisha, Madhya Pradesh, Arunachal Pradesh, Chattisgarh, Gujarat, Himachal Pradesh, Jharkhand, and Uttarakhand have enacted such laws in the last 55 years.[i]

In 2013, the Law Commission of Karnataka in its 30^th report recommended the enactment of a religious conversion law. A Bill was passed by the State Legislative Assembly in December 2021 but the same has not been taken up in the Legislative Council. The procedure by which the provisions of the Bill have been given effect through an Ordinance has been widely criticized. This column analyses the provisions of the Ordinance in light of the constitutional principles.

Key features of the Ordinance

The Ordinance aims to provide for protection of right to freedom of religion and prohibition of unlawful conversion from one religion to another by misrepresentation, force, undue influence, coercion, allurement, or any fraudulent means. Any person who converts, attempts, abets or conspires to convert another person with the help of such means will be liable for imprisonment for three years which may extend to five years, and a fine of rupees twenty-five thousand.[ii] Further, any marriage done with the sole purpose of unlawful conversion will be declared null and void.[iii]

A complaint may be lodged by any converted person, his parents, brother, sister, or anyone related to him by blood, marriage or adoption, or in any form associated or a colleague.[iv] Re-conversion of a person to his previous religion has been exempted.[v] Offences under the Ordinance are cognizable and non-bailable.[vi] The burden is on the accused to prove that the conversion was not effected through such fraudulent means.[vii]

The Ordinance also provides for the procedure through which conversion can legally take place. If a person willingly wants to convert, he has to give a declaration within 30 days before conversion to the DM or ADM who will then notify the conversion calling for objections.[viii] If any objections are received, he will get an inquiry conducted and if he concludes that an offence has been committed, he will cause the police to initiate criminal action. Similar procedure has to be followed in case of post-conversion declaration.[ix] Any conversion without these declarations is illegal, void, and punishable.

Issues to consider

Ordinance may violate the fundamental rights of individuals

The Ordinance in the present form may violate the fundamental right to privacy, life and personal liberty, equality, and freedom of religion. An invasion of privacy can only be justified if it satisfies a three-fold requirement: firstly, there must be a law in existence to justify an encroachment on privacy; secondly, the need to ensure that the law is reasonable and not arbitrary; thirdly, the means adopted are proportional to the object sought to be fulfilled. The Ordinance may violate the right to privacy as it may fail the last two requirements. It may also not satisfy the requirements of fair and reasonable law under Articles 14 and 21. With the inclusion of a long complicated procedure, it interferes with the individual’s right to ‘profess’ religion under Article 25. I discuss the reasons for possible violation and explore some of the implications below:

• Inter-religion marriages: Any promise to marry is allurement and conversion by such promise or allurement is punishable. Not all conversions for marriage should be viewed as unlawful and illegal. While staying similar provision in the Gujarat Freedom of Religion Act, 2003, the Gujarat High Court has held that such provision interferes with the intricacies of inter-faith marriage between two consenting adults including their right to choice and liberty thereby infringing Article 21. It was observed that merely because a conversion occurs because of marriage, it per se cannot be held to be an unlawful conversion or a marriage done for unlawful conversion.[x]
• Long complicated procedure: Although the Ordinance prohibits only unlawful religious conversions, it makes a bonafide conversion difficult by incorporating a long complex Even in bonafide cases, there is a requirement of pre and post-conversion declaration which might act as a deterrent to the persons who willingly want to convert. It not only interferes with the right to privacy but also the right to freedom of religion. The issue of forceful conversion can be addressed even without these declarations. Conversions, as described under Section 3 can later be declared ineffective and void, thus restoring the original religion of the converted person.
• Disproportionate means: The means adopted by the Ordinance are not proportional to the object sought to be fulfilled. The intended object of protecting the freedom of religion can be achieved by civil action or by criminal action but without the requirement of notice. Uttar Pradesh is the only other state having such a requirement. While striking down Section 4 of the Himachal Pradesh Freedom of Religion Act, 2006, which provided for pre-conversion declaration, the Himachal Pradesh High Court held it to be violative of Article 14. Also, concerning issuance of public notice for objections under the Special Marriage Act, 1954, Allahabad High Court has held that such requirement is voluntary and if it is made mandatory then it would violate the right to privacy of an individual.
• New constitutional infirmity: In 1977, the Supreme Court while upholding the constitutional validity of similar Acts of Madhya Pradesh and Odisha, held that purposely converting another person to one’s religion under the pretext of spreading the religious tenets, infringes the essence of freedom to conscience. However, the requirement of pre and post-conversion declaration is a new constitutional infirmity. Unlike the challenge to earlier laws which was restricted to ‘propagation’, such requirement strikes at the right to ‘profess’ religion under Article 25.
• Affecting charitable works: The Ordinance would adversely affect charitable works as giving free education and giving employment are “allurement” under Section 2(a)(ii). If a Christian body provides free education to dalits or employs a non-christian teacher in a catholic school, it would be allurement and the person-in-charge of the body can be punished for committing, attempting, abetting, or conspiring conversion even without any conversion taking place. To avoid such consequences, the Karnataka Law Commission in its draft Bill did not include giving employment and free education within “allurement”.
• Possibility of arbitrary arrests: As the offences are cognizable, a police officer can arrest the accused without any warrant issued by a magistrate which may result in indiscriminate and arbitrary arrests. A converted person can be arrested and harassed even in cases where his conversion is bonafide and not under Section 3. The reverse burden of proof also goes against the fundamental principle of the presumption of innocence of the accused.
• Violence against interfaith couples: The requirement of notice especially in cases of inter-religion marriages has at times facilitated violence against interfaith couples, their families, and their religious communities to prevent interfaith marriages.
• Re-conversion exempted: The Ordinance exempts conversions back to the previous religion. The Himachal Pradesh High Court struck down a similar provision on the ground that it is discriminatory and violative of the right to equality.
• Information to employer: The DM is required to inform the employer of the converted person. There is no clarity regarding the purpose of such a provision.

Balancing individual rights and public order

Anti-conversion laws per se may not violate the right to freedom of religion of a person but the unreasonable means adopted would in effect defeat the very purpose of the law. Attempts should be made to balance the right to privacy, life and personal liberty, equality, and freedom of religion of a person on one hand and public order on the other. Religious conversion by using fraudulent practices is wrong and should be addressed. However, the object can be achieved by civil action or by criminal action but without the requirement of notice as unreasonable procedure infringes the rights of the victim instead of protecting them. In the case of inter-religion marriages between two consenting adults without any fraudulent means, the couple should not be harassed and treated as offenders. Also, the burden should be on the prosecution to prove that the conversion falls within the scope of Section 3.

[i] State Legislatures are competent to enact such laws under Entry I of List II of the Seventh Schedule to the Constitution. Odisha was the first state to enact such a legislation in the year 1967. 

[ii] The Karnataka Protection of Right to Freedom of Religion Ordinance, 2022., ss. 3, 5.

[iii] ibid., s. 6.

[iv] ibid., s. 4.

[v] ibid., s. 3.

[vi] ibid., s. 7.

[vii] ibid., s. 12.

[viii] ibid., s. 8.

[ix] ibid., s. 9.

[x] The Court also referred to Shafin Jahan v. Ashokan in which the Supreme Court held that the right to marry a person of one’s choice is an integral part of right to life and personal liberty under Article 21.

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ABOUT THE AUTHOR

Shantanu Pachauri

Shantanu is an advocate registered with the Bar Council of Uttar Pradesh. He did his LL.M. in constitutional and criminal law from National Law University, Delhi and completed B.A.LL.B.(Hons.) from National Law Institute University, Bhopal. His research interest lies at the intersection of constitutional and criminal law. He may be reached at https://www.linkedin.com/in/shantanupachauri/.