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Prohibiting Forced Religious Conversions - Precautions Required To Be Taken While Drafting Such Enactment

Freedom of conscience and right to profess, practice and propagate religion is guaranteed by the Constitution of India under Article 25(1). This right is however subject to public order morality health and to the other provisions of Part III i.e. this right is subject to all other Fundamental Rights.

The word "propagate used in Article 25(1) was inserted after much deliberation during the Constitution Assembly Debates in the year 1948. Conversion from one religion to another by coercion or undue influence was also under active consideration and discussed. Some observations and apprehensions expressed by the Constituent Assembly members during the Constituent Assembly debates against the use of the word propagate which are relevant for the purpose of the present article are reproduced below :

But no one should change religion out of greed and temptation

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In view of such conditions which exist today, conversion brought about through temptation and allurement is, in fact, not a conversion in the real sense of the term.

Sir, some discussion has taken place on the word propagate', After all, propagation is merely freedom of expression. I would like to point out that the word convert' is not there. Mass conversion was a part of the activities of the Christian Missionaries in this country and great objection has been taken by the people to that. Those who drafted this Constitution have taken care to see that no unlimited right of conversion has been given. People have freedom of conscience and if any man is converted voluntarily owing to freedom of conscience, then well and good. No restrictions can be placed against it. But if any attempt is made by one religious community or another to have mass conversions through undue influence either by money or by pressure or by other means, the State has every right to regulate such activity Therefore I submit to you that this article, as it is, is not so much an article ensuring freedom, but toleration-toleration for all, irrespective of the religious practice or profession. And this toleration is subject to public order, morality and health.

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I suggest that it is absolutely necessary and but right and proper, in the interests of the State, and more so in the interests of the general policy and principles on which the State is founded in India, that power be reserved in this Constitution absolutely to prohibit any such non-religious, non-spiritual activity, that in the name of religion, may be carried on, to the grave prejudice of the country as a whole, and even to the same religion of which they claim to be heads.

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All persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion" that are important. What are important are the governing words with which the article begins, viz., "Subject to public order, morality and health".

As can be seen, the mention of freedom to propagate religion triggered some conflict in the Assembly. Some members were concerned that it could facilitate conversions - forced and voluntary

The Constitution Assembly however was unanimous that any conversion by exercising undue-influence or allurement was to be held void.

It seems that in the light of the concerns conveyed during the debates that the right to religious freedom under Article 25 was made subject to public order, morality, and health as well as subject to the other provisions of Part III i.e. to all other fundamental rights.

Article 25(2) (a) & (b) empowers the State to make law regulating or restricting economic, financial, political or other secular activity which may be associated with religious practice. Such law may also provide social welfare and reform.

Thus if an economic, financial, political or other secular activity of any person, which may be associated with religious practice, leads to public disorder, immorality and ill health, the State has necessary power to regulate or restrict such activity by making law. For example :

a) When in the name of religion and its propagation conscious attempts are made to carry out forced conversion leading to public disorder

b) When in the name of a religious practice, a religion decides to promote obscenity leading to immorality

c) When in the name of a religious practice a religious sect decides to promote an unverified drug for cure of its followers leading to health hazard

Article 25 empowers State to regulate or restrict such activities Article 25 and 26 of the Constitution of India dealing freedom of religion and religious denominations are reproduced below:

Article 25. Freedom of conscience and free profession, practice and propagation of religion - (1) 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, practise 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.

(b) Providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.

Explanation I.-The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.

Explanation II.-In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.

Article 26. Freedom to manage religious affairs - Subject to public order, morality and health, every religious denomination or any section thereof shall have the right-

(a) to establish and maintain institutions for religious and charitable purposes;

(b) to manage its own affairs in matters of religion;

(c) to own and acquire movable and immovable property; and

(d) to administer such property in accordance with law.

In terms of Article 25 the right to practice any religion also includes the right to convert. Such right is however vested only in the Convertee and not on the Convertor. A right to voluntarily convert includes within its fold a right not to convert. A person while exercising his fundamental right to practice a particular religion does not have a right to force some other person to convert to his religion. A person while exercising his right to propagate can make efforts to transmit or spread the tenets of his religion. He cannot purposely undertake the conversion of another person as it will violate the right of free conscience of such other person. What can be said to be permitted by propagation is the exhibition of religious beliefs & ideas and only such beliefs and ideas as sanctioned by his/her religion. The right to free conscience cannot be thwarted while exercising the right to propagate. Both rights/freedoms i.e. freedom of conscience and the right to propagate religion are Fundamental Rights hence the exercise of one cannot lead to the denial/destruction of the other. Thus when conversion is sought to be brought about by force, pressure, misrepresentation, undue-influence, coercion, allurement, marriage or by any fraudulent means such acts cannot be sought to be protected under the right to propagate religion. Forced Conversion from one religion to another leads to social unrest which ultimately leads to disruption of public order. Any attempt to raise violence or passion on the ground that someone has been forcibly converted to another religion gives rise to disturbance of public order.

Thus the pith and substance of any law to curb forced conversion has to be a law to maintain public order. Framing of such law by State to maintain public order is clearly permissible under Article 25.

A reference to the word "State" in Part III of the Constitution includes both the Government of India and the State Governments. This is clear from the inclusive definition of "State" under Article 12. The question therefore will be that which Government i.e. Government of India or the State Government, has the legislative competence under Article 25 to make the necessary law.

Article 246 defines the legislative powers of the Government of India and the State Governments with reference to Lists I, II and III of Schedule VII

"Religion" is not traceable to any entry in either of the 3 Lists of Schedule VII.

Since such law, in pith and substance, will be a law to maintain public order it can be traced to Entry I (Public Order) in List II (State List)

State Government therefore has the legislative competence to bring about an enactment to promote religious freedom and to curb the menace of forced and fraudulent conversion which lead to public disorder and unrest and ultimately destroys the social fabric of the Society.

Legislations enacted by other State Governments

Freedom of Religion laws were primarily formulated to prevent vulnerable populations or populations without power, such as children and those that are poor, uneducated, and illiterate from being preyed upon and falling victim to predatory efforts seeking religious conversion in exchange for or with the allurement of medical and humanitarian aid, education, or employment. In India about 9 State Governments have come out with enactments/bills dealing with the issue of forced conversions namely :

A) The Orissa Freedom of Religion Act, 1967

B) Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968 (Madhya Pradesh Freedom of Religion Act, 1968)

C) Chhattisgarh Freedom of Religion Act, 1968

D) Arunachal Pradesh Freedom of Religion Act, 1978

E) Tamil Nadu Prohibition of Forcible Conversion of Religion Act 2002

F) Gujarat Freedom of Religion Act, 2003

G) The Himachal Pradesh Freedom of Religion Act, 2006

H) Jharkhand Freedom of Religion Act, 2017

I) Uttarakhand Freedom of Religion Act, 2018

Some of the above enactments were subject matter of challenge before High Courts and the Supreme Court as narrated hereunder :

A) In 1973, the High Court of Orissa declared that the Orissa Freedom of Religion Act,1967 as ultra vires the Constitution. The High Court held that Article 25(1) of the Constitution "guarantees propagation of religion and conversion is a part of the Christian religion," that "the term 'inducement' is vague and many proselytizing activities may be covered by the definition and the restriction in Article 25(1) cannot be said to cover the wide definition," and that the state legislature lacked the competence or jurisdiction to make the law in question on the topic of "religion" under the Seventh Schedule of the Constitution.

Madhya Pradesh High Court on the other hand upheld the Madhya Pradesh Freedom of Religion Act, 1968, holding that the relevant sections "establish the equality of religious freedom for all citizens by prohibiting conversion by objectionable activities such, as conversion by force, fraud and by allurement..

Both the Hon'ble Orrisa High Court and the Hon'ble Madhya Pradesh High Court judgments came to be challenged before the Hon'ble Supreme Court of India and in the case reported as Rev. Stainislaus v. State of Madhya Pradesh (1977) 1 SCC 677 (5 Judges Constitutional Bench) the Hon'ble Supreme Court upheld the vires of both the Orrisa and Madhya Pradesh legislation.

The Supreme Court in Rev Stainislaus v. State of Madhya Pradesh examined whether the right to practice and propagate one's religion also included the right to convert. The Court upheld the validity of the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968, and the Orissa Freedom of Religion Act, 1967. The Court found that "restrictions on efforts to convert are constitutional because such efforts impinge on 'freedom of conscience' and 'public order'." In one of its conclusions the Court held that propagation only indicated persuasion/exposition without coercion and that the right to propagate did not include the right to convert any person. This holding was summed up by the Court as follows:

It has to be remembered that Article 25(1) guarantees "freedom of conscience" to every citizen, and not merely to the followers of one particular religion, and that, in turn, postulates that there is no fundamental right to convert another person to one's own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the "freedom of conscience" guaranteed to all the citizens of the country alike.

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It has to be appreciated that the freedom of religion enshrined in the Article [25] is not guaranteed in respect of one religion only, but covers all religions alike, and it can be properly enjoyed by a person if he exercises his right in a manner commensurate with the like freedom of persons following the other religions. What is freedom for one, is freedom for the other, in equal measure, and there can therefore be no such thing as a fundamental right to convert any person to one's own religion.

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We have no doubt that it is in this sense. that the word 'propagate' has been used in Article 25 (1), for what the Article grants is not the right to convert another person to one's own religion, but to transmit or spread one's religion by an exposition of its tenets. It has to be remembered that Article 25 (1) guarantees "freedom of conscience" to every citizen, and not merely to the followers of one particular religion, and that, in turn, postulates that there is no fundamental right to convert another person to one's own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the "freedom of conscience" guaranteed to all the citizens of the country alike.

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It was next been argued by counsel that the Legislatures of Madhya Pradesh, and Orissa States did not have legislative competence to pass the Madhya Pradesh Act and the Orissa Act respectively, because their laws regulate 'religion' and fall under the Residuary Entry 97 in List 1 of the Seventh Schedule to the Constitution. It is not in controversy that the Madhya Pradesh Act provides for the prohibition of conversion from one religion to another by use of force or allurement, or by fraudulent means, and matters incidental thereto. The expressions "allurement" and 'fraud' have been defined by the. Act. Section 3 of the Act prohibits conversion by use of force or by allurement or by fraudulent means and section 4 penalises such forcible conversion. Similarly, section 3 of the Orissa Act prohibits forcible conversion by the use of force or by inducement or by any fraudulent means, and section 4 penalises such forcible conversion. The Acts therefore dearly provide for the maintenance of public order for, if forcible conversion had not been prohibited, that would have created public disorder in the States. The expression "Public order" is of wide connotation. It must have the connotation which it is meant to provide as the very first Entry in List II. It has been held by this Court in Ramesh Thapper v. The State of Madras that "public order" is an expression of wide connotation and signifies state of tranquility which prevails among the members of a political society as a result of internal regulations enforced by the Government which they have established".

Reference may also be made to the decision in Ramjilal Modi v. State of U.P. where this Court has held that the right of freedom religion guaranteed by Articles 25 and 26 of the Constitution is expressly made subject to public order, morality and health, and that "it cannot be predicated that freedom of religion can have no bearing whatever on the maintenance of public order or that a law creating an offence relating to religion cannot under any circumstances be said to have been enacted in the interests of public order". It has been held that these two Articles in terms contemplate that restrictions may be imposed on the rights guaranteed by them in the interests of public order. Reference may as well be made to the decision in Arun Ghosh v. State of West Bengal where it has been held that if a thing disturbs the current of the life of the community, and does not merely affect an individual, it would amount to disturbance of the public order. Thus if an attempt is made to raise communal passions, e.g. on the ground that some one has been "forcibly" converted to another religion, it would, in all probability, give rise to an apprehension of a breach of the public order, affecting the community at large. The impugned Acts therefore fall within: the purview of Entry I of List II of the Seventh Schedule as they are meant to avoid disturbances to the public order by prohibiting conversion from one religion to another in a manner reprehensible to the conscience of the community. The two Acts do not provide for the regulation of religion and we do not find any justification for the argument that they fall under Entry 97 of List I of the Seventh Schedule.

It is thus clear that because Article 25(1) stipulates that the right is subject to "public order," the Hon'ble Supreme Court found that the impugned Orrisa and Madhya Pradesh Acts. clearly provide for the maintenance of public order for, if forcible conversion had not been prohibited, that would have created public disorder in the States and that the expression 'Public order' is of wide connotation. On the question of competency, the Court found that the impugned Acts fall within the purview of the State Governments pursuant to Entry I ("Public Order") of List II of the Constitution's Seventh Schedule and could not be regulated as a subject of religion under the residuary jurisdiction of the central legislature

(There is residuary power under Entry 97 of List I for the Government of India to make law on matters not relatable to any entry in either of the 3 Lists. As "religion" is not relatable to any entry in either list an argument was raised that religion can be legislated upon under the residuary Entry 97 as the legislation in pith and substance related to religion. But the Supreme Court rejected this contention by holding that in pith and substance the law was relatable to " public order" and not "religion")

B) The vires of Himachal Pradesh Freedom of Religion Act, 2006 came to be challenged before the Hon'ble Himachal Pradesh High Court in CWP No.438 of 2011 & CWP No. 4716 of 2011 titled Evangelical Fellowship of India v. State of Himachal Pradesh & others and the Hon'ble High Court held the Himachal Act partly ultra vires by holding as under :

24. An important issue which has been raised in these cases is with regard to the right to privacy of a person wanting to change his beliefs. Section 4 of the Himachal Pradesh Act lays down that a person intending to convert from one religion to another should give notice thirty days prior to his conversion to the District Magistrate of the District concerned, who shall get the matter enquired into by such agency as he may deem fit. The proviso to Section 4 (1) lays down that no notice shall be required if a person reverts back to his original religion. In case of violation of sub-section (1) of Section 4, the person, who fails to give notice, would be punishable with fine which may extend up to one thousand.

25. Rule 3 provides that any person domiciled in the State, intending to convert his religion, shall give notice to the District Magistrate of the District in which he is permanently resident, prior to such conversion, in Form-A. Thereafter, the District Magistrate is required to cause all notices to be entered in a Register of Notices and Complaints in Form-B and within fifteen days from the receipt of notice may get the matter enquired into by such agency as he deems fit and record his findings as regards the particulars of notice given. The proviso lays down that the District Magistrate, before passing any order, must given adequate opportunity in the enquiry to the person giving notice and any other person who is likely to be pre-judicially affected.

26. Rule 5 lays down that if the District Magistrate is of the opinion that the conversion has taken place or is likely to take place through use of force or inducement or without requisite notice, he shall refer the case alongwith all material adduced in the course of the enquiry to the police for registration of a case and its investigation. The prosecution sanction can be given by the District Magistrate or such authority authorized by him not below the rank of Sub Divisional Officer.

27. In this case, the main issue with which we are concerned is whether the fundamental rights of the person, who is converting (hereinafter referred to as the convertee), are being adversely affected by Section 4 and Rules 3 and 5?

28. We may, at this stage itself, point out that neither the Madhya Pradesh Act nor the Rules made thereunder provide that the convertee should give notice before conversion. In the Madhya Pradesh Act, it is the person who is converting any other person from one religious faith to another, such as a religious priest, who is required to give notice of such conversion to the District Magistrate. Every conversion may not entail the performance of a ceremony. True it is, that in some religions, before initiation into the religion, some ceremony has to be performed, but this is not applicable to all religions.

29. Under the Orissa Act, there is also no provision for giving advance notice by the convertee. However, Rule 4 of the Orissa Freedom of Religion Rules, which were enacted in the year 1999, reads as follows:

"Any person intending to convert his religion, shall give a declaration before a Magistrate, 19' Class, having jurisdiction prior to such conversion that he intends to convert his religion on his own will."

30. As per this rule, any person intending to convert his religion is directed to give a declaration before a Magistrate 151 Class prior to such conversion that he intends to convert his religion of his own free will. There is no time period prescribed. The non-filing of such declaration is not an offence. Under Rule 8 of the Orissa Rules, only contravention of Rules 5 and 6 is an offence, but contravention of Rule 4 is not an offence.

31. Therefore, we find that the Himachal Pradesh Act has gone much further than the Madhya Pradesh or Orissa Acts as far as the convertee is concerned. We have earlier discussed that our Constitution ensures that no person living in India can be denied equality under the law or the benefits of Part-III of the Constitution of India and every person is entitled to his freedoms, which are guaranteed under Part-III of the Constitution of India. These rights, which are commonly known as fundamental rights, are, in fact, human rights. These rights inhere in every human being and in every civilized society, we must respect such rights. The right to privacy is one of such rights and has been the subject matter of interpretation in a number of cases.

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37. A person not only has a right of conscience, the right of belief, the right to change his belief, but also has the right to keep his beliefs secret. No doubt, the right to privacy is, like any other right, subject to public order, morality and the larger interest of the State. When rights of individuals clash with the larger public good, then the individual's right must give way to what is in the larger public interest. However, this does not mean that the majority interest is the larger public interest. Larger public interest would mean the integrity, unity and sovereignty of the country, the maintenance of public law and order. Merely because the majority view is different does not mean that the minority view must be silenced.

38. It has been strongly urged By Mr. R.K. Bawa, learned Advocate General, on behalf of the State that the right to privacy is not an indefeasible right. There can be no quarrel with this proposition. However, the State must have material before it to show what are the very compelling reasons which will justify its action of invading the right to privacy of an individual. A man's home is his castle and no invasion into his home is permissible unless justified on constitutional grounds. A man's mind is the impregnable fortress in which he thinks and there can be no invasion of his right of thought unless the person is expressing or propagating his thoughts in such a manner that it will cause public disorder or affect the unity or sovereignty of the country.

39. Why should any human being be asked to disclose what is his religion? Why should a human being be asked to inform the authorities that he is changing his belief? What right does the State have to direct the convertee to give notice in advance to the District Magistrate about changing his rebellious thought?

40. A person's belief or religion is something very personal to him. The State has no right to ask a person to disclose what is his personal belief. The only justification given is that public order requires that notice be given. We are of the considered view that in case of a person changing his religion and notice being issued to the so called pre-judicially affected parties, chances of the convertee being subjected to physical and psychological torture cannot be ruled out. The remedy proposed by the State may prove to be more harmful than the problem.

41. In case such a notice is issued, then the unwarranted disclosure of the voluntary change of belief by an adult may lead to communal clashes and may even endanger the life or limb of the convertee. We are not, in any manner, condoning or espousing conversions especially by "force", "fraud" or "inducement". Any conversion, which take place by 'force", "fraud" or "inducement", must be dealt with strictly in accordance with law which we have held to be valid. At the same time, the right to privacy and the right to change the belief of a citizen cannot be taken away under the specious plea that public order may be affected. We are unable to comprehend how the issuance of a notice by a convertee will prevent conversions by "fraud", "force" or "inducement". In fact, this may open a Pandora's box and once notice is issued, this may lead to conflicts between rival religious outfits and groups. No material has been placed on record by the State to show that there has been any adverse effect on public order by any conversion in the State whether prior to or after the enactment of the Himachal Pradesh Act. In fact, till date only one case has been registered under this Act.

42. As observed by us above, conversions may not require any ceremony in some religions and how will the Government determine when the thought process of a person has changed. A person who belongs to A religion and willingly wants to convert to B religion will not change his religion overnight, except in case of forced conversions or conversions which take place due to payment of cash or other material gifts. Change of religion, when it is of its own volition, will normally be a long drawn out process. If a person of his own volition changes his religion, there is no way that one can measure or fix the date on which he has ceased to belong to religion A and converted to religion B. This has to be an ongoing process and therefore, there can be no notice of thirty days as required under the Himachal Pradesh Act.

43. Furthermore, we are of the view that the proviso to Section 4 is also discriminatory and violative of Article 14 of the Constitution of India. "Original religion" has not been defined in the Himachal Act. According to Dr. Subramanian Swamy, the original religion is Hindu religion alone. We cannot accept this submission of his. The general consensus of opinion used was that the original religion would be the religion of the convertee by birth, i.e. the religion he was born into.

44. We fail to understand the rationale why if a person is to revert back to his original religion, no notice is required. It was urged before us that since he was born in his religion and knows his religion well, therefore, it was thought that while reverting back to his original religion, no notice be issued. This argument does not satisfy the parameters of Article 14 of the Constitution of India. Supposing a person born in religion A converts to religion B at the age of 20 and wants to convert back to religion A at the age of 50, he has spent many more years, that too mature years, being a follower of religion B. Why should he not be required to give notice?

45. Another question which is troubling us is if a person born in religion A, converts to religion B, then converts to religion C and then to religion D. If he converts back to religion B or C, he is required to give notice, but if he converts back to religion A, then no notice is required. This also, according to us, is totally irrational and violative of Article 14 of the Constitution of India.

46. We also fail to understand why a person, who fails to give such notice, should be required to pay a fine, which may extend up to Rs. 1,000/-. We can understand the feelings of the State in enacting the law. We are also of the view that conversion by "force", "fraud" or "inducement" should be dealt with strictly and should be discouraged. But, by and large, it is the poor and the down-trodden, who are converted by "force", "fraud" or "inducement". By enacting Section 4 and making the non-issuance of the notice a criminal offence, the State has, in fact, made these poor and down-trodden people criminals, whereas the main thrust of the Act should have been to deal strictly with the persons who convert people by "force", "fraud" or "inducement".

47. We also found many flaws in the Rules. Rule 3 requires that any person domiciled in the State intending to convert must give notice to the District Magistrate of the District of which he is a permanent resident. Supposing a person is a permanent resident of District Shimla, who is staying in Delhi. He decides to convert at Delhi. The conversion, if any, would take place at Delhi. The State of Himachal Pradesh has no jurisdiction over the Union Territory of Delhi. In Delhi, there is no law corresponding to the H.P. Freedom of Religion Act. If such conversion is not illegal in Delhi, why should such person be required to give notice in Himachal Pradesh? How can such a person be virtually treated to be a criminal when the act of conversion is legal at Delhi? There are other flaws also in the Rules inasmuch as they are totally vague and do not specify the agency, through which the District Magistrate should carry out the enquiry. But, since we are of the view that Section 4 itself is ultra vires the Constitution of India, the corresponding rules must fall and we need not go into a detailed discussion of those rules.

CWP No. 4716 of 2011

48. As far as CWP No. 4716 of 2011 is concerned, one of the issues raised is that the prosecution of the petitioner is totally illegal. We found that the prosecution was initiated many years back. More than three years have been expired and the criminal case is at the stage of evidence. Therefore, without expressing any opinion on the merits of the case, we dispose of the writ petition with a direction that the case No. RBT 50/3 of 2011/08 shall stand transferred to the Court of Chief

Judicial Magistrate, Shimla, who is further directed to ensure that the proceedings in this case are completed latest by 31st December, 2012.

49. In view of the above discussion, we allow the petitions to a limited extent and strike down Section 4 of the Himachal Pradesh Freedom of Religion Act, 2006 and Rule 3 of the Himachal Pradesh Freedom of Religion Rules, 2007 as being violative of Article 14 and ultra vires the provisions of the Constitution of India. Rule 5 only insofar as it relates to actions relating to Section 4 is also held to be ultra vires. However, all other provisions of the Act and the Rules are held to be legal and valid. Both the petitions are disposed of in the aforesaid terms. No order as to costs.

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C) It may be noted that the Hon'ble Uttrakhand High Court in HABC No. 20 of 2017 held as follows :

"Before parting with the judgment, it needs to be entioned that the Court has come across number of cases where the inter-religion marriages are being organized. However, in few instances, the conversion from one religion to another religion is a sham conversion only to facilitate the process of marriage. In order to curb this tendency, the State Govt. is expected to legislate the Freedom of Religion Act on the analogy of Madhya Pradesh Freedom of Religion Act, 1968 as well as Himachal Pradesh Freedom of Religion Act, 2006, without hurting thereligious sentiments of citizens

The Court, while making this suggestion, is well aware that it is not the role of the Court to give suggestions to the State Government to legislate but due to fast changing social milieu, this suggestion is being made.

The petition stands disposed of accordingly."

After passing of this order by the Hon'ble High Court the Uttrakhand Government promulgated the Uttarakhand Freedom of Religion Act, 2018

D) The Hon'ble Supreme Court in the case of Shafin Jahan v. Asokan K.M & others - SLP (Crl.) No 5777 of 2017 decided on 9/4/2018 was dealing with power of the High Court to issue a writ in the nature of habeas corpus using parens partie jurisdiction on behalf of an adult female. She had allegedly married after converting her religion and the parents were not aware of all this. When family of the girl came to know they filed a criminal case in respect of forced conversion relating to marriage. The father also filed a writ for habeas corpus which was allowed by the Hon'ble Kerala High Court and even marriage was held to be a sham and declared null and void. The Hon'ble High Court had noted that a criminal case relating to forced conversion would continue.

The Hon'ble Supreme Court held that the High Court has completely erred by taking upon itself the burden of annulling the marriage and consequently set aside the judgment of the High Court. It is pertinent to mention here that despite dismissing the writ petition for habeas corpus the Hon'ble Supreme Court directed that the investigation by the NIA in respect of any matter of criminality may continue in accordance with law. It may be noted that the matter of criminality was in respect of forced conversion relating to marriage.

E) In another matter namely Aman Beg v. State of Madhya Pradesh & others - Writ Petition (Cr!) No 142 of 2016 the Hon'ble Supeme Court was dealing with an issue where the Petitioner had alleged that he married the private respondent after converting his religion but the police separated them on the complaint of the father of the girl on the ground that she was a minor. It was noted in the order dated 3/11/2017 passed by the Hon'ble Supreme Court while declining relief to the Petitioner that it was disputed as to whether the procedure for conversion as prescribed by the Madhya Pradesh Freedom of Religion Act, 1968 was followed or not.

Thus as far as the criminality angle in forced conversion is concerned the Hon'ble Supreme Court allowed the investigation to continue as per law. The Supreme Court upheld the argument that procedure for conversion as prescribed by the Madhya Pradesh Freedom of Religion Act, 1968 having not been followed gave rise to doubts about the conversion being valid in law.

Thus before bringing about legislation of this nature a State Government must collect/collate all data of incidents/occurrences in the history of the said State where forced conversion may have led to disturbance of public order. This will create a sound basis to demonstrate that the pith and substance of the enactment is relatable to "public order" and that therefore the State Government has the legislative competence to frame law under Entry I of List II

The reasons why the Hon'ble Himachal Pradesh High Court struck down Section 4 of the Himachal Pradesh Freedom of Religion Act, 2006 and Rule 3 of the Himachal Pradesh Freedom of Religion Rules, 2007 as being violative of Article 14 and ultra vires the provisions of the Constitution of India and Rule 5 only insofar as it relates to actions relating to Section 4 have to be kept in mind while framing a similar legislation so that either similar provision are avoided or a base is created within the scope of the Constitution provisions so that same can withstand judicial scrutiny.

With the above background details of pre-cautions that may be taken into account while drafting such an enactment are detailed below:

Pre-cautions:

I. Since the proposed legislation will trace itself to Entry I (Public Order) of List II (State List) of the Seventh Schedule of the Constitution of India adequate data must be collected and deliberated upon with reference to specific past incidents in the particular State where forced conversion or attempted forced conversion may have led to public disorder. The incidents of public disorders must be summarily mentioned in the Objects and Reasons of the proposed Act. This will take care of the possible opposition that the enactment deals with the subject of "religion" and that therefore State lacks legislative competence. Since the State Government envisages to regulate public disorder which occurs due to fraudulent conversions it can be counter-argued that in pith and substance the enactment deals with "public order" which is Entry I of List II and that hence the State has the legislative competence to bring about such an enactment. It has to be stressed that the enactment does not propose to regulate religion and that it is maintenance of public order for which the State is really concerned.

Moreover there is a positive direction by the Hon'ble Uttrakhand High Court in HABC No. 20 of 2017 as follows which can be quoted :

"Before parting with the judgment, it needs to be mentioned that the Court has come across number of cases where the inter-religion marriages are being organized. However, in few instances, the conversion from one religion to another religion is a sham conversion only to facilitate the process of marriage. In order to curb this tendency, the State Govt. is expected to legislate the Freedom of Religion Act on the analogy of Madhya Pradesh Freedom of Religion Act, 1968 as well as Himachal Pradesh Freedom of Religion Act, 2006, without hurting the religious sentiments of citizens

2. There should be no requirement in the proposed Act for the Convertee to issue any advance notice to the District Magistrate before converting the religion and such non-compliance to be a punishable offence. Such a provision has been held by the Hon'ble Himachal Pradesh High Court to be ultra vires the Constitution of India particularly infringing the right of privacy of the individual on the ground that a person has a right to be secretive about the nature of the religion he is professing. The Court held that it is the poor and the downtrodden, who are converted by "force", "fraud" or "inducement". The Court further held that by enacting Section 4 and making the non-issuance of the notice a criminal offence, the State of Himachal Pradesh had, in fact, made these poor and downtrodden people criminals, whereas the main thrust of the Act should have been to deal strictly with the persons who convert people by "force", "fraud" or "inducement.

The Court then discussed proviso to Section 4 (1) which is as below :

Provided that no notice shall be required if a person reverts back to his original religion.

The Himachal High Court held this proviso to be also discriminatory by giving an example that if a person born in religion A, converts to religion B, then converts to religion C and then to religion D. If he converts back to religion B or C, he is required to give notice, but if he converts back to religion A, then no notice is required. This according to the court was totally irrational and violative of Article 14 of the Constitution of India.

In light of the above a provision for mandatory issuance of notice or a declaration disclosing the event of conversion by the Convertee himself may not stand the test of judicial scrutiny. However a provision for voluntary non-mandatory disclosure by the Convertee, without any penal consequences for non-compliance, can be incorporated in the delegated legislation as done by the State of Orrisa under Rule 4 of the Orissa Freedom of Religion Rules, which were enacted in the year 1999.

Rule 4: "Any person intending to convert his religion, shall give a declaration before a Magistrate, 1st Class, having jurisdiction prior to such conversion that he intends to convert his religion on his own will

The above rule has been noticed by the Hon'ble Himachal Pradesh High Court in its judgment in Evangelical Fellowship case and has been relied upon for its non-mandatory nature to declare the mandatory nature of Section 4 of the Himachal Pradesh Freedom of Religion Act 2006 as ultra vires.

3. The provision for issuing advance notice by the Convertee to the District Magistrate can be made mandatory and its violation made punishable only in very limited circumstance. If it can be demonstrated by the State Government that there is material to show the compelling reasons justifying the invading of the right to privacy of an individual. The right to privacy as noted by the Himachal Pradesh High Court in Evangelical Fellowship case is not an indefeasible right and therefore compelling reasons and larger public interest will be required to be demonstrated to invade the said right of an individual like making it mandatory from him to intimate the State about his decision to convert by giving notice etc. In case of a forced conversion obviously the Convertee will not issue any notice or intimate the District Magistrate about the conversion thus this aspect should be kept in mind while drafting the enactment.

4. There is a provision in the Himachal Pradesh Freedom of Religion Bill 2019 and the Uttarakhand Freedom of Religion Act 2018 that if person comes back to his parent/ancestral religion then that shall not be construed as Conversion under the provisions of the Act. Such a provision without saying anything more cannot pass muster. It will be then be argued that forced reconversions back to the parent/ancestral religion have been provided an escape route by the Act. Forced reconversions can be interpreted and construed by the Courts as part of forced conversions. The above 2 enactments are silent on the concept of forced reconversion. Even parent/ancestral religion has not been defined in these 2 enactment/bill. These aspects may be kept in mind while drafting the enactment by the State Government.

5. Only the Orrisa, Madhya Pradesh and Himachal Pradesh legislations have underwent judicial scrutiny. Orrisa and Madhya Pradesh legislations have been upheld in toto by the Hon'ble Supreme Court in Rev. Stainislaus v. State of Madhya Pradesh (1977) 1 SCC 677 (5 Judges Constitutional Bench). The Himachal Act & Rules has been held partly ultra vires qua requirement for the Convertee to issue prior notice to the District Magistrate. Hence the proposed legislation can be framed keeping these 3 legislations in mind leaving aside the offending part of the Himachal legislation.

6. It is also pertinent to point out that none of the above mentioned three enactments contemplate:-

a) conversion by marriage,

b) nullity of such marriages,

c) jurisdictional courts for seeking such declarations,

d) violations of the Act by institutions/organizations,

e) punishment for officer in charge of affairs of such institutions/organizations,

f) prohibition on acceptance of donations by such defaulting institutions/organizations,

g) expansive meaning to the expression "parties to offence",

h) burden of proof

i) all offences being non-bailable AND

j) provision for filing complaint in court alleging forced conversion.

7. These additional provisions/clauses are part of the Uttarakhand Freedom of Religion Act 2018 and the Himachal Pradesh Freedom of Religion Bill 2019 which have not undergone any' judicial scrutiny. The other legislations i.e. for the States of Gujarat, Jharkhand and Arunachal Pradesh do not contain anything more than what the Uttrakhand Act and the Himachal Bill say. The State of Rajasthan only passed a Bill in the year 2006 and no Act was passed. The State of Tamil Nadu has since repealed the Tamil Nadu Prohibition of Forcible Conversion of Religion Act 2002. State of Chhattisgarh had adopted the Madhya Pradesh Freedom of Religion Act 1968 so it doesn't say anything more than what the said Act says.

8. Each of the new provision, as mentioned in para 6, is being discussed hereinafter particularly in respect of the pre-cautions which may be taken while incorporating them in the draft of the proposed enactment.

• Conversion by marriage

• Nullity of such marriages, and

• Jurisdictional courts for seeking such declarations,

In this regard kindly note that the Hon'ble Supreme Court in Shafin Jahan v. Asokan K.M & others - SLP (Crl.) No. 5777 of 2017 decided on 9/4/2018 allowed the continuation of criminal case in respect of forced conversion in relation to marriage.

Similarly in Aman Beg v. State of Madhya Pradesh & others - Writ Petition (Crl) No. 142 of 2016 the Hon'ble Supeme Court declined relief to the Petitioner who had alleged that he had converted his religion before marriage but there was a dispute whether the procedure for conversion under the Madhya Pradesh Freedom of Religion Act 1968 was followed or not. Even the Uttrakhand High Court had observed that -

"Conversion from one religion to another religion is a sham conversion only to facilitate the process of marriage"

A person can fake or misrepresent a religion to convince or receive consent of his/her spouse for marriage and after marriage force such spouse to convert to his original religion. Such deception would qualify as force and fraud. Marriages may have been performed in a State with a conscious zeal to increase the strength of ones own religion. Some data in this regard should be available with the State Government.

Thus a provision like the one in Section 5 of the Himachal Bill 2019 and Section 6 of the Uttrakhand Act 2018 may be incorporated. It must also be further clarified that where the marriage is solemnized by misrepresentation of religion and the consent for marriage is obtained by exercising force and fraud the said marriage may be declared null and void.

This addition will take care of the requirements of Section 12 of The Hindu Marriage Act 1955 dealing with voidable marriages. Similarly adequate provisions in terms of voidability of marriage with reference to Christian, Muslim and other laws be incorporated as void marriage would governed by personal law and the proposed enactment cannot override the provisions of a Special Personal Law that may govern void marriage in respect of parties to the dispute.

The vesting of jurisdiction on Family Court may be adopted as it is.

It may also be noted that conversion from one religion to another can have adverse effect on important civil rights of the Convertee in relation to succession, marriage, divorce, maintenance, custody etc. This aspect, though not covered by any of the legislations may be considered from the point of view, specially, of women and minors. Minors need a protection against conversion whether voluntary or forced. There cannot be a concept of consent or voluntariness as far as the minor is concerned. The guardian decides for him/her. Minors are protected against non-beneficial disposition of a property before their majority. Similarly bestowment of non- beneficial civil rights on conversion, even if voluntarily made by the poor and illiterate parents/guardians should not bind such minors. However the family unity in such case may get disturbed where Parents stand converted and the minor doesn't. This aspect therefore needs to be well thought out.

• Violations of the Act by institutions/organizations,

• Punishment for officer in charge of affairs of such institutions/organizations

• Prohibition on acceptance of donations by such defaulting institutions/organizations,

Sections 9 and 10 of the Himachal Bill and Sections 10 and 11 of the Uttaranchal Act 2018 refer to punishment for violation of Act by an Institution and an Organization. However in these two enactments the words "Institution" and " Organization" have not been defined. They should be defined in the proposed enactment in terms of their role in the forced conversion process. Alternatively the word "person" as used in Section 3 should be defined to include and mean any institution or organization.

Not only the person in charge of such institution or organization but every person who is associated with such institution or organization in capacity as owner, promoter, shareholder, co-owner, manager, secretary should be held responsible unless they can show that they had no role or were not associated with the forced conversion process.

In case any such institution/organization is found violating provisions of the proposed enactment then apart from restraining them from receiving donations or contributions from within or outside the country, the District Magistrate should be empowered to seek details of persons/institutions/organizations/countries from where donations/contributions may have been received in the past along with details of activities on which such donations/contributions may have been spent. The District Magistrate should have power to conduct inquiry into the past affairs of such institution/organization.

• Expansive meaning to the expression "parties to offence"

Section 11 of the Himachal Bill 2019 and Section 12 of the Uttaranchal Act 2018 are in the nature of deeming provisions relating to abetment. This provision may be retained as it is

• Burden of proof

In criminal jurisprudence the burden of proof to bring home the guilt of the accused is on the prosecution. In a prosecution launched under the proposed legislation (assuming the Uttaranchal Act 2018 is adopted as it is) there will be presumption of guilt u/s 12 thereof on:-

i) The person who gets converted

ii) The person who has converted

However as discussed under point (2) and as observed by the Hon'ble Himachal Pradesh High Court that by and large, it is the poor and the downtrodden, who are converted by "force", "fraud" or "inducement" and are made criminals, the requirement for the Convertee to issue the mandatory notice before conversion to the District Magistrate should be done away with. Moreover the doctrine of presumption of Innocence puts the burden of proof on the prosecution because there cannot be presumption of guilt in criminal prosecution and to put the burden to prove the innocence on the accused might face serious opposition from the public as well as courts. Thus a provision like Section 12 of Himachal Bill 2019 and Section 13 of the Uttaranchal Act 2018 putting burden to prove innocence on the accused should be avoided.

8)(i) All offences being non-bailable

In view of stringent punishment of up to 7 years under the Himachal Bill 2019 and the Uttaranchal Act 2018 and with a view to control the menace of forced conversions the offence must be made non-bailable as it also leads to disturb the social fabric of the nation resulting in public disorder. The offence being non-bailable will be deterrent for someone who plans to commit the offence

8)(j) provision for filing complaint in court alleging forced conversion.

The Himachal Bill 2019 and all other State enactments do not contemplate filing of a criminal complaint. The provision to file a complaint is part of Uttarakhand Act 2018 by virtue of Section 4. Since the offence of forced conversion adversely affects public order and can create law and order problem a provision like Section 4 should be avoided.

9. Chapter 15 of IPC deals with "Offences Relating to Religion" from Sections 295 to 298. None of these sections cover a specific offence relating to forced conversion. Section 153-A & 153-B IPC deal with offences against the Public Tranquility by promoting enmity between different groups on ground of religion, race, place of birth etc. A clause can be added that the provisions of the proposed enactment are in addition to the provisions of any other act and are not to be read in derogation of any of them.

10. The definition of the terms force, pressure, misrepresentation, undue-influence, coercion, allurement, marriage or by any fraudulent means should be exhaustive and clear. Vague terminology of offence specially allurement/inducement should be avoided so as to be clearly distinguishable from the meaning of the word "propagation" as used in Article 25 of the Constitution of India.

11. The proposed enactment should not be perceived as hostile to religious minorities. The objection to such a legislation will be that under its garb the minorities will be targeted. The provision for previous sanction of the District Magistrate before launching prosecution should therefore be highlighted to dispel any fear that the minorities may be targeted.

A provision for investigation to be carried out through a senior police officer can also be incorporated.

12. A difficulty may arise while deciphering and distinguishing activities purportedly in the nature of propagation and the ones directed towards forced conversions. The State may attempt to define the word "propagation" in terms of what the Hon'ble Supreme Court has stated in the Rev Stanislaus case. In none of the State legislations the word propagation has been defined.

Conclusion:

There cannot be any hidden agenda, political, economical or social, behind conversions. In the name of social service a person/religious denomination cannot lure illiterate and poor section, weaker section, children, women, SC and ST sections to convert. It is the process of conversion which the State should intend to regulate to bring about social order. The right to convert freely is as important a right as the right to simply convert. The element of freedom in conversion is in itself a fundamental right.

Forcing someone to convert to another religion is violation of Fundamental Right of freedom of conscience. There is thus no place of forced conversions in the Constitutional scheme. The State can therefore make law to prevent breach of this fundamental right. Forced conversion cannot be disguised as propagation. It is this disguise that the State law must endeavor to uncover and punish.

The Preamble to the Constitution envisions Liberty of thought, expression, belief, faith and worship. It is this Liberty that the State Enactment should proclaim to secure for all its residents.

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