Discussing Religious Rights and addressing the

Anti Conversion Bill

Before engaging with the topic as representative of your respective

portfolios, you must understand why these questions are the center of
parliamentary conversations and discussions. A part of what is called the
“Basic Structure” (1) of the Indian Constitution states that India must be a
secular country. Secularism, and the models which implement the idea of
equality of religion in the eyes of the State have always been debated and
modified according to changing understanding of secularism as a concept.
While there is an understanding that propagates indifference towards
religion completely on behalf of the State, there has also been a school of
thought that advocates specialized recognition and rights to the diversity
of religions in India as a true implementation of Secularism. The latter is
called a ‘pluralist’, in other words, take on a multicultural society. How
religious practices are manifested has always been at the heart of these
questions. Such practices have always been under the jurisprudence of the
State and its intervention in these practices arbitrary. India has adopted
the stance of keeping personal laws in the domain of religious bodies and
clustering those which aren’t religions with a large population, under the
banner of others. Two members of the BJP, including Amit Shah, have
announced that anti-conversion bills are to be introduced in both houses
of Parliament “so as to criminalize religious conversion without the
government’s consent.” (2) However, the BJP government’s plan to enact
national legislation reportedly “hit a roadblock” with the Ministry of Law
and Justice, which advised against the move, stating that it is “not
tenable” since it is “purely a state subject” (3)—i.e., a matter that lies
purely under the constitutional domain of the states under the State List in
Schedule Seven of the Constitution.

Religion and Law-Interpretation of Secularism

in India and Multiculturalism
Since Independence, Indian secularism has evolved as a political
ideology and a set of institutions designed to effect national
unity, providing a forum for conflict resolution among India’s
vast and diverse cultural communities. Yet while secular
institutionalism was originally adopted as a tool to achieve such
goals, secularism has been interpreted more as a means to
negotiate stability among religious communities rather than
situate the state as an abstract distributor of spiritual tolerance.
Indian secularism is a process backlit by more traditional
concerns for universalism and individual autonomy, and yet one
which led to the development of a proactive, interventionist
secularism in the name of practical need. The founding political
elites assumed rightly that such ‘unity’ demanded that processes
of compromise be directed toward balance —processes that
emphasized the role of religious identities as the epistemic
communities of choice, if not necessity. Secularism—while
propounding neutrality with respect to gender, religious
denomination, class, and so forth—has tended to capture (and
even manufacture) essentialized identities within its legal and
political apparatuses. Asking who and what are the subjects of
secularism, then, is a crucial question, especially in light of
continued aggravation and the reification of religio-cultural and
gendered identities within modernity and, for the purpose of this
analysis, contemporary Indian politics. During the tenure of
Jawaharlal Nehru, secularism was proposed as an answer to
various social dilemmas; now, and especially since the rise of
the Hindu right in the mid-to-late 1980s, secularism is a more of
a framework, a question, a polemic. Like the varied cultural
landscapes of the Subcontinent, the definitional boundaries of
‘secularism’ have fractured. In the last two decades political and
legal elites have allowed secularism to shrink its egalitarian
ambitions and, according to many scholars, morph into an
imprecise, tainted and disfigured creature of law and politics,
diluted to the status of a catch-word in some cases, or a post-
Independence badge of internal colonialism in others. And yet
Indian secularism in its successes and defeats— continues to
wage a war of position against the following question: “How are
minority religious groups to be brought into the modern nation
and protection extended to their claims to certain rights and
privileges guaranteed to all members of that nation, without at
the same time effacing either their unique religious differences
or the content of their religious beliefs?”
Religious Rights

The characterization of the Indian state’s idealistic ‘secular’

impulses has been put into question time and time again, most
notoriously in the Constitutional protection of ‘rights to culture’
as proscribed in Articles 25-30. This The has been especially
visible in court cases that juxtapose these multicultural laws
against the fundamental rights embodied in Articles 14-24, laws
more clearly based upon traditional interpretations of liberal
individualism. Much debate has arisen over questions regarding
whether religious rights are fundamental rights, whether under
Article 25 there is really a right to propagate religion, whether
under Article 26 religious communities have a right to a certain
measure of autonomy vis-à-vis the state, whether there is an
absolute right to ‘preserve’ the cultures of religious communities
under Article 29, whether these communities have a right to
establish and manage their own educational institutions toward
the end of safeguarding certain cultural artifacts of language and
script, etc. To the extent that the Indian state was already
seeking out a comprehensive and practical secularism, the word
‘secular’ was only added to the preamble of the Indian
Constitution in 1976 through passage of the 42nd Amendment.
This important addition to the Constitution emphasized that the
Indian State would not be biased toward any one or group of
religions, that it would be neutral toward religious communities
and doctrines, that it would not discriminate between
communities of faith. In short, religious particularity would not
play a role in the governance of the Indian state.

Debate on Uniform Civil Code

The Indian Parliament has also debated if a cultural code of

conduct be developed beyond religious specificities. This debate
formulated what is called the Uniform Civil Code. What is the
Uniform Civil Code? Uniform civil code is the ongoing point of
debate within Indian mandate to replace personal laws based on
the scriptures and customs of each major religious community in
India with a common set of rules governing every citizen.
Article 44 of the Directive Principles expects the state to apply
these while formulating policies for the country. Apart from
being an important issue regarding secularism in India &
fundamental right to practice religion contained in Article 25, it
became one of the most controversial topics in contemporary
politics during the Shah Bano case in 1985. The debate then
focused on the Muslim Personal Law, which is partially based
on the Sharia law and remains unreformed since 1937,
permitting unilateral divorce, polygamy in the country and
putting it among the nations legally applying the Sharia law.
The Bano case made a politicized public issue focused on
identity politics—by means of attacking specific religious
minorities versus protecting its cultural identity. The demand for
a uniform civil code was first put forward by women activists in
the beginning of the twentieth century, with the objective of
women's rights, equality and secularism. Till Independence in
1947, a few law reforms were passed to improve the condition
of women, especially Hindu widows. In 1956, the Indian
Parliament passed Hindu Code Bill amidst significant
opposition. Though a demand for a uniform civil code was made
by Prime Minister Jawaharlal Nehru, his supporters and women
activists, they had to finally accept the compromise of it being
added to the Directive Principles because of heavy opposition.
But is India prepared for a Uniform Civil code.

Conversion
Broadly speaking, conversion is a movement between or among
faiths, a change in legal status, a political statement, a spiritual
engagement. Challenging and unsettling, the act of conversion
brings into question not merely the substance of political
tolerance as defined by secular thought, but illustrates the
boundaries of such tolerance as a legal category and a normative
claim, as well as underscores the ways in which faith is
delimited and transformed by modern institutions and social
expectations. The study of the disorienting, redistributive quality
of conversion in the case of India seems to also entail the study
of conquest, colonial domination, the dynamics of spiritual and
electoral imbalance, and the negotiation of gendered citizenship
through the politics of religious freedom.

MAJOR QUESTIONS:
What questions will the Lok Sabha be asking when deciding to
centralize the control over protection from conversion, while the
implementation is local? Why is this decided to be a Union issue
NOW SPECIFICALLY? What are the implications of policing
conversions? Will it mean policing thought? How does one
really identify (legally speaking) the difference between
voluntary and involuntary conversion? How does one account
for the possible misuses of this bill? How will a Union bill
radically change the way conversions are taken care of by State
laws now?

Anti-conversion Bill

History

India is a nation that is home to a diversity of religious beliefs

and practices. The Indian subcontinent is the birthplace of four
major world religions—Hinduism, Buddhism, Sikhism, and
Jainism. According to reported 2011 census data, 79.80% of the
population of India is Hindu, 14.23% Muslim, 2.30% Christian,
1.72% Sikh, 0.70% Buddhist, and 0.37% Jain. Laws restricting
religious conversions were originally introduced by Hindu
princely states during the British Colonial period— mainly
during the latter half of the 1930s and 1940s. These states
enacted the laws in an attempt to preserve Hindu religious
identity in the face of British missionaries. There were over a
dozen princely states, including Kota, Bikaner, Jodhpur,
Raigarh, Patna, Surguja, Udaipur, and Kalahandi which had
such laws. Some of the laws from that period include the
Raigarh State Conversion Act (1936), the Surguja State
Apostasy Act (1942) and the Udaipur State Anti-Conversion Act
(1946). Attempts to restrict conversions began as soon as the
modern Indian state was born in 1947. Parliament saw two bills
being introduced under the Jawaharlal Nehru government that
sought to clamp down on the freedom to change one’s faith.
Both were opposed by Prime Minister Nehru, who saw how
dangerous any policing of thought could be. Speaking in the
Lok Sabha in 1955, Nehru said: “I fear this bill will not help
very much in suppressing the evil methods [of gaining
converts], but might very well be the cause of great harassment
to a large number of people. Also, we have too take into
consideration that, however carefully you define these matters,
you cannot find really proper phraseology for them. The major
evils of coercion and deception can be dealt with under the
general law. It may be difficult to obtain proof but so is it
difficult to obtain proof in the case of many other offences, but
to suggest that there should be a licensing system for
propagating a faith is not proper. It would lead in its wake to the
police having too large a power of interference.

Anti-Conversion Bills Today-Overview:

India’s Freedom of Religion Acts or “anti-conversion” laws are

state-level statutes that have been enacted to regulate religious
conversions. The laws are in force in six out of twenty-nine
states: Arunachal Pradesh (8), Odisha, Madhya Pradesh,
Chhattisgarh, Gujarat, Jharkhand and Himachal Pradesh. While
there are some variations between the state laws, they are very
similar in their content and structure. All of the laws seek to
prevent any person from converting or attempting to convert,
either directly or otherwise, any person through “forcible” or
“fraudulent” means, or by “allurement” or “inducement.”
However, the anticonversion laws in Rajasthan and Arunachal
Pradesh appear to exclude reconversions to “native” or
“original” faiths from their prohibitions. Penalties for breaching
the laws can range from monetary fines to imprisonment, with
punishments ranging from one to three years of imprisonment
and fines from 5,000 to 50,000 Indian rupees. Some of the laws
provide for stiffer penalties if women, children, or members of
scheduled castes or schedule tribes (SC/ST), are being
converted. Despite criticism of India’s anti-conversion laws,
some human rights bodies have acknowledged that these laws
have resulted in few arrests and no convictions. However, some
observers note that these laws create a hostile, and on occasion
violent, environment for religious minority communities
because they do not require any evidence to support accusations
of wrongdoing. All the state laws are similar in scope. They do
not directly ban conversion but make conversion by “force,
allurement, inducement or fraud” illegal. Of course, these terms
are not defined, giving the state a wide berth to harass the
powerless. For instance, in Jharkhand’s new law – the Religious
Freedom Bill, 2017 – the word “force” also includes the “threat
of divine displeasure”. So is the Christian belief that only people
who accept Jesus will be saved from damnation also then
“force”? The term “allurement” is also not defined. So, is
education or healthcare “allurement”? And what is “fraud”?
Jharkhand’s Act defines it as “misrepresentation”. But then,
from a rationalist point of view, all religions indulge in
“misrepresentation”. So then is propagating Christianity or
Islam itself fraud under this law? They all prohibit conversion
from one religion to another by the use of force or allurement or
by fraudulent means. Allurement (also called inducement) is
defined as a gift or material benefit, and force is defined as the
threat of injury “including threat of divine displeasure or social
excommunication.” A key difference is that in Gujarat and
Chhattisgarh, a person wishing to convert must seek permission
from the district magistrate at least 30 days before the date of
the intended conversion. In Himachal Pradesh, a person must
notify the magistrate 30 days in advance that they intend to do
so. In Orissa and Madhya Pradesh — which enacted their laws
in the 1960s, almost four decades before the other states — no
prior permission or notification is required, though in Madhya
Pradesh the magistrate must be informed once the conversion
has taken place. The requirement to tell a magistrate about an
intention to convert is divisive. The BJP favors this requirement
and says it reduces the likelihood of voluntary converts
changing their story down the line to say they were forced.
National Debate on the Bill In the background to the debate: a
tussle over whether India should introduce a nationwide anti-
conversion law. India’s winter session of Parliament, which
ended last month, was disrupted for days as opposition members
protested against Hindu hardline groups for allegedly forcing
religious minorities to convert to Hinduism. The Hindu groups,
some of which are close to the governing Bharatiya Janata
Party, deny the allegations and say the conversions were
voluntary. Prime Minister Narendra Modi’s BJP has suggested
that the creation of a national law could help prevent forcible
religious conversions, according to a national spokesman of the
BJP. The right wing and conversion The Dharam Jagaran Samiti
(DJS) — an offshoot of the Rashtriya Swayamsevak Sangh
(RSS) and the Bajrang Dal — only recently announced that it
aims to meet a target of converting one lakh Muslims and
Christians into Hinduism every year. Earlier this month in Agra,
the DJS reportedly converted some 200-odd Muslims to
Hinduism. The event came to light after the supposed converts,
many of who are among the most impoverished sections of the
society, alleged that they had been misled into believing that
they would be offered Below Poverty Line cards by consenting
to the conversion. In spite of these contentions, the Sangh
Parivar remains unmoved in its agenda. According to a report on
the website scroll.in, the Vishwa Hindu Parishad (VHP) has
already made plans to mark the 50th anniversary of the group’s
founding on February 6 with a Ghar Vapsi in Faizabad next
year. Making matters worse, the VHP has claimed, as The
Hindu reported, that those Muslims or Christians who reconvert
to Hinduism in such programs would be allowed to choose a
caste for themselves once the VHP has investigated the
tradition, faith, and culture of the convert’s ancestors. Sharing
these snippets of the debate I found online for your perusal: 1)
BJP members plan for anti-conversion bill in
Parliamenthttp://india.ucanews.com/news/bjp-members-plan-
foranticonversion-bill-in- parliament/30286/daily 2) The
Arguments for and Against a National Anti-Conversion Law-
“While organized events of conversion can incite violence and
hatred, the enforcement of a national anticonversion law, as
some advocate, is not the panacea. Besides inflicting greater
damage, it would render our rights to freedom of conscience and
religion valueless, and derail efforts at achieving a peaceful,
democratic society.”
https://blogs.wsj.com/indiarealtime/2015/01/09/thearguments-
for-and- against-a-national-anti-conversion-law/ 3) “A law
banning the use of coercion in seeking religious conversion
seems to be in consonance with general principles of a
democratic society. However, our experience with such
legislation — as can be gathered from the impact of such
statutes in Madhya Pradesh and Gujarat — shows us that these
laws would inevitably be fraught with interpretive maladies that
often strike at the root of our right to religious freedom. What’s
more, a legislation of such a nature would be simply
unenforceable without applying a duplicitous standard of
statutory construal. The better choice, in these circumstances, is
to prosecute illegitimate acts of force and coercion, which evoke
genuine sentiments of communal hate, through the general
operation of the penal law aimed at maintaining public order,
while leaving conversions largely unmonitored.”
http://www.thehindu.com/opinion/lead/conversion-andfreedom-
of- religion/article6716638.ece Is the bill anti-constitutional in
the sense that it in any way takes away freedom of religion?
Absolutely constitutional. Technically the freedom to follow and
freedom to propagate a religion of your choice is a constitutional
guarantee. By last count 6 states (Arunachal Pradesh, Gujarat,
Himachal Pradesh, Madhya Pradesh, Chhattisgarh and Odisha)
have "anti-conversion" laws whose constitutional validity have
been upheld. What is this bill all about? Since the BJP
government has not actually shared any draft bill, I will try to
draw parallels to the existing "Freedom of Religion"/"anti-
conversion" bills. Almost all these bills have two broad themes.
Firstly - they define what constitutes "illegal" conversion and
also define how to punish illegal conversions. Some of the
existing laws can be reused or applied to prevent illegal
conversions. However, there is lack of full legal clarity. For
instance, if you claim that you were "fraudulently" converted,
what is your "loss" through this fraud? How can a judge decide
an appropriate punishment for this supposed "fraud"? Hence the
need for such a law. Secondly - they require the local
administration to be notified in case anyone is converting his/her
religion.