The Constitution of India gurantees every citizen of India the right to freedom of religion under Article 25 which says allows “freedom of conscience and free profession, practice and propagation of religion.” [1]
It assures every citizen the right to believe, practice and even propapagate their beliefs under this article. But while the Constitution allows this fundamental right, various states in India have passed new anti-conversion laws that prevent people from converting to other religions. In most of these cases, religious preachers and young men belonging to minority religions have been arrested. The law has been passed in 7 States namely – Uttar Pradesh, Madhya Pradesh, Gujarat, Himachal Pradesh, Uttarakhand, Karnataka and Jharkhand. They are called as Freedom of Religion Act in some of these states. The Supreme Court is currently hearing the petitions challenging the validity of the laws and has sought a response from the respective states on it. [2]
As mentioned above, the Constitution guarantees free practice and propagation of any religion. In the case of Ratilal Panachand Gandhi vs State of Bombay the SC duly noted and emphasised on this provision by stating that “every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further
to propagate his religious views for edification of others.” [3]
Thus one can see that the country has religious freedom enshrined in its Constitution as a fundamental right. So why did the various states in India pass such a law? The governments of these states cite that there have been “forceful conversions under duress, coercion, misrepresentation” and that this law has been passed to tackle this menace. According to the Government in the state of Uttar Pradesh, this law has been passed because it is seeing an uptick in forceful conversions, particularly of women, mostly through marriage which, according to them, is non consensual and the promise of marriage itself is an inducement to convert which thereby also makes these marriages “null and void” as they are “non consensual” as the consent given is due to coercion or inducement. This has resulted in jailing of lots of men, mostly from the religious minorities like Islam and Christianity. Police had detained at least 189 individuals in connection with anti-conversion proceedings within nine months of the ordinance’s promulgation. The data showed that in the 108 cases, 257 people were mentioned, but police investigations found an additional 83 suspects, bringing the total to 340. 56 of them were not determined to have violated the law. 31 of the complainants were minors between November of last year and August 31. In addition, 77 women have filed statements with a magistrate in accordance with Section 164 of the Criminal Procedure Code. In a couple of the cases where final reports were submitted, there have been allegations of legal misapplication in the news. The finer details of the law passed by the UP government is that those found guilty might spend up to 10 years in jail, depending on how serious the “crime” was. Rs. 15,000 to 50,000 in fines are imposed. The district magistrate must be notified two months in advance if an interfaith couple wishes to get married. The law stipulates that conversion of minors and women from the SC/ST group as well as forced conversions are punishable by one to five years in prison and a minimum punishment of Rs 15,000, respectively. A three- to ten-year prison sentence and a fine of Rs 50,000 are imposed for coercive mass conversions. In accordance with the law, a marriage will be deemed “null and void” if it is discovered that the lady was only married with the purpose of converting her. In Gujarat on the other hand, the earlier Freedom of Religion Act has been amended and the amendment’s Section 3A also gives relatives of the harmed parties—parents, brothers, sisters, and even those connected by blood, marriage, or adoption—the ability to file a First Information Report (FIR) with the relevant police station. The proposed modification would penalise those who might be considered to have participated in the offence and impose charges as if they had actually committed the offence by adding a sub-section to Section 4 of the Act. It includes those people who, through deeds or omissions, enable or help the pertinent offence; or who encourage, counsel, or persuade another person to commit the offence. Section 3 of the original act’s language, which at first simply forbade fake religious conversions, has been significantly expanded by the modification. These marriages that involve a forced conversion to a certain religion or aid in that conversion are now likewise prohibited. This in a way jeopardises interfaith marriages and raises concerns about the fact that the law can be misused and applied to consensual marriages and conversions. The judicial intstitutions of the country have given significant judgements over time on interfaith marriages. Interfaith marriages have been the subject of numerous discussions within Indian judicial systems, and some significant remarks have been made. The freedom to marry the person of one’s choice is a crucial component of the right to life and liberty [Article 21], according to the Supreme Court of India’s ruling in Shafin Jahan v. Ashokan KM. [4]
This judgement is particularly important for the analysis because it included a girl who converted to Islam just before being married, leading to accusations of coercive conversion and “brainwashing” from the community and her family. The ruling determined that a person’s inalienable right to select their life partner was unaffected by ideas of faith or religion. It was also noted that marriage’s complexities fell inside the core zone of privacy, which is inviolable. A zone of privacy is defined as a “area or aspect of life that is held to be protected from intrusion by a specific constitutional guarantee.” Since marriage-related issues are under the core (i.e., protected and fundamental) sphere of privacy, any intrusions (of society or faith) into those affairs are prohibited. Citing Justice D.Y. Chandrachud’s ruling, it is said that “social recognition of private personal decisions is not the grounds for doing so. In fact, the Constitution shields individual liberties against unfavourable audiences.
Also to offer some significant insights is the Allahabad High Court’s ruling in Salamat Ansari v. State of U.P. [5] Salamat Ansari and Priyanka Kharwar were the subjects of the case. They had gone before the court to request the quashing of a FIR that had been filed against them for a number of offences, including the unlawful kidnapping of a woman with the intention of forcing her into an unconscionable marriage. They insisted that Ms. Kharwar’s conversion to Islam had been a necessary part of their marriage and that it was founded on a legal contract between two competent, consenting individuals. The Court upheld their claim and stated that it was a legitimate exercise of a person’s rights to convert to a different religion, even if it was only for the purpose of getting married. Making individual choices susceptible to the whims of the state in contravention of constitutional principles was the goal of this exercise, which was not based on social constructions like caste or religion. This means that while making judgements, a state cannot operate as the sole, dominating authority, especially when those decisions are based on the individual’s own preferences. Thus as most of the arrests that have been made under this law have been related to interfaith marriages, one can see that the State is impeding on any individual’s personal choice not only with regard to profession of faith but also who they can choose as a life partner.
Another important factor that needs to be considered under this law is the reverse burden of proof that puts the onus on the accused to prove that the conversion was NOT forceful or under coercion or through misrepresentation. Under Section 12 of the UP anti-conversion law, the burden of proof is reversed. But is a reverse burden of proof Constitutionally valid? To examine the legitimacy of reverse onus clauses, Justice Gupte established a four-part test (Paragraph 213, Pages 231-232). This test was based on the fundamental rights to equality and freedom guaranteed by Articles 14 and 21 of our Constitution. Following are the four requirements that were emphasised:
Is the State required to establish sufficient fundamental or material facts constituting a crime in order to create a presumption of balance of evidence, which the burden of proving or disproving rests on the accused, and which takes into account the probative relationship between these fundamental facts and the presumed facts, to establish the guilt of the accused?
Is it the job of the accused to prove a falsehood in order to establish these facts as being balanced?
Are these details specifically known to the accused?
Does the accused experience any hardship or oppression as a result of this burden, given how simple it would be for the accused to discharge it or for the State to provide evidence to the contrary?
The prosecution is required to prove a few fundamental foundational truths as part of the test’s first requirement. These facts must be connected logically to the presumed facts in a way that makes the latter extremely probable. Presuming the guilt of the accused is contingent upon this “balance of facts” presumption, which takes into account the persuasive relationship between the basic facts and the presumed facts. The Supreme Court confirmed the legality of Sections 34 and 54 of the Narcotics Drugs and Psychotropic Substances Act, 1985, in the landmark case Noor Aga Khan v. State of Punjab [(2008) 16 SCC 417]. The burden of proof shifts on the accused to disprove the presumption of guilt only when the prosecution establishes certain fundamental facts. The Uttar Pradesh Law, in contrast to this need of establishing fundamental facts, assumes the guilt of the accused without establishing a probative link between the fundamental circumstances and the criminalised act of religious conversion. This is due to the fact that the only fundamental truth that must be proven in the current case is that a conversion actually occurred. In our opinion, this fact by itself is insufficient to draw a conclusive conclusion in this regard. We must focus on the various instances where the Law has been abused in order to better comprehend the issue associated with shifting the burden of proof under the Law without the formation of a probative connection. It is undeniable that the reversal of the burden of proof can only be permitted in situations when it is clear that the accused is aware of certain particular facts that he can readily prove or refute. In situations like those involving the possession of weapons, when the mere act of possession raises the possibility that a dangerous intent was behind it, the accused is deemed to have knowledge, or mens rea [Shaikh Zahid Mukhtar v. State of Maharashtra, (2017) 2 AIR Bom R 140]. However, it cannot be said that merely demonstrating the fundamental fact that a religious conversion occurred serves a detrimental aim. This is due to the fact that it has been recorded in numerous instances of religious conversion that the accused had the approval and the consent of the converted person.
Thus one can see that the law has a fundamental flaw with regard to burden of proof and is not valid Constitutionally. In conclusion one can say that it would be a severe error to ignore the indissoluble connection between constitutional and criminal law while evaluating the viability of Section 12 of the Law. Following the consideration of the reverse onus provision in the Law described above, it can be said that the four-fold test is not satisfied by the Law. Furthermore, when compared to reverse onus provisions in other legislation, whose validity has already been affirmed by the court, the law’s justification for limiting “unlawful conversions” cannot be supported. The author of this article thinks that the reverse burden of proof clause has to be reexamined in light of these factors and that this law does not stand the test of Constitutional validity.
[1] Constitution of India (November 26 1949), s. Article 25
[2] Dhananjay Mahapatra, “Supreme Court Seeks Replies from 7 States on Anti-Conversion Law”, Times of India, Feb. 04, 2023, available at: https://timesofindia.indiatimes.com/india/supreme-court-seeks-replies-from-7-states-on-anti-conversion-law/articleshow/97592107.cms?from=mdr (last visited on May 25, 2023).
[3] Ratilal Panachand Gandhi v. State of Bombay, 1954 S.C.R. 1035, 1063
[4] Shafin Jahan v. Ashokan KM, (2018) 16 SCC 368, AIR 2018 SC 1933
[5] Salamat Ansari v. State of UP, 2021 (1) ALJ 453, MANU/UP/2029/2020
Author: Niraja Chari
Juris Centre 