Goemkarponn desk
PANAJI: The arrest of believer Dominic D’Souza by the Goa Police (Mapusa police) has kicked up a new controversy, with the Chief Minister Dr Pramod Sawant saying that the State will come up with strong anti-conversion law in the forthcoming Assembly.
Even as an anti-conversion bill awaits the approval of the Goa Legislative Assembly, legal challenges are already being prepared against it.
Sawant said that few MLAs have suggested bringing in a law to ban religious conversion following the arrest of Dominic D’Souza, a Pastor of 5 Pillars Church at Siolim.
“Dominic was involved in converting poor and sick people by claiming to have magical powers for the last 30 years. Now because few youths came forward to file a complaint against him, we could arrest him,” he said, adding that the police had thoroughly searched his house, and a lot of incriminating evidence was found in the house.
If the law is passed, Goa will become the eleventh Indian State to have a law banning religious conversions effected based on misrepresentation, force, fraud, allurement or marriage.
Since 2017, six states, all led by Bharatiya Janata Party governments, have either passed new anti-conversion laws or updated existing ones. The new versions of the laws put stricter punishments and newer grounds for restricting conversions, such as conversion “by marriage” – where a person who adopts another faith to enter into a marriage would be deemed forcibly converted or luring the poor with money for conversion.
In addition, two other BJP-ruled states, Harayana and Assam, have announced plans to move similar laws.
Anti-conversion laws have been challenged in courts ever since Odisha moved the first such legislation in 1967.
However, the courts have a mixed record defending the freedom of choice with regard to religion, ruling in favour of individual liberty in some cases but not in others.
The precedent for such cases was established by the Supreme Court in 1977, when a five-judge upheld the constitutionality of India’s first two anti-conversion laws: the Orissa Freedom of Religion Act, 1967 and Madhya Pradesh’s MP Dharma Swatantrya Adhiniyam, 1968.
But the verdict in this case, Stanislaus vs State of Madhya Pradesh, has been criticised by constitutional experts.
Abhinav Chandrachud, a lawyer and academic, has written that how in upholding these laws, the Supreme Court “went too far”. It could just have held that the right to propagate a religion did not extend to forced conversions, he writes.
However, the court held that this right does not even include voluntary conversions.
A senior advocate has said that if a larger bench re-examined Stanislaus, its logic would not stand in the light of the 2017 judgement in the Puttaswamy case recognising the right to privacy as a fundamental right.
“We now have a nine-judge judgment in the Puttaswamy case, which is concerning privacy,” he said. “I cannot think of anything more private than your relationship with God.” In 2017, the Supreme Court recognised the right to privacy as a fundamental right in the Puttaswamy case.
Freedom of conscience
The laws in Odisha and Madhya Pradesh both prohibited conversions from one religion to another if it was made based on force, fraud or any inducement and allurement by way of any gift or gratification or material benefit.
The petitioners argued that restrictions on conversion contravened their fundamental rights since Article 25(1) of the Constitution grants the right to “freedom of conscience and free profession, practice and propagation of religion”.
They argued that the word “propagation” should include the right to convert.
However, the court held that Article 25 does not give the right to convert but only “to transmit or spread one’s religion by an exposition of its tenets”.
This has become the primary case that justified restrictions on conversion. After this judgment, several states passed their own anti-conversion laws.
Striking down anti-conversion provisions
However, one High Court judgment stands out for striking down provisions in an anti-conversion law. In 2012, the Himachal Pradesh High Court
held that some provisions of the State’s 2006 anti-conversion law were unconstitutional.
The High Court said that while people have the right to believe and change their beliefs, they also have a right to keep their beliefs secret. Consequently, the court said that the requirement for a person to give notice to the district magistrate 30 days before converting to a different religion would affect her right to privacy.
“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,” the court said.
The law also prevented individuals from giving 30 days’ notice if they converted to their “original religion”. The court held this irrational and contrary to the right to equality set out in the Constitution.
It gave an example to show this. If a person has converted their religion four times, then converting back to their first religion would not require a notice, but converting to their second or third religion would require one.
The High Court upheld the validity of other provisions of the legislation that prohibited and punished forced conversions.
The logic in this judgment of how conversions are private affairs and should not have the State’s involvement has only been bolstered after the Supreme Court also recognised privacy as a fundamental right. This might become relevant in future challenges to the anti-conversion legislation.
Watering down provisions
In 2021, both the Gujarat and Allahabad High Courts watered down the provisions relating to inter-faith marriages in the anti-conversion laws of their states.
In August, the Gujarat High Court granted an interim stay to the provisions prohibiting conversion by marriage in amendments to the Freedom of Religion Act, 2003. The court said that this would interfere with the right to the choice of an individual guaranteed under the right to life in Article 21 of the Constitution.
It also stayed the provision that put the burden of proof on the parties entering into an inter-faith marriage to prove that the marriage had not been solemnised on account of any fraud, allurement or coercion. However, this is only an interim stay that will be in operation only until the court decides on the validity of these laws.
In November, the Allahabad High Court allowed the registration of the marriages of 17 interfaith couples even though they had not obtained the district authority’s approval for conversion, as required by the Uttar Pradesh anti-conversion law. The court asked the state authorities and the couples’ families to restrain themselves from “interfering with the life, liberty and privacy” of these individuals.
The registrar should register the marriage “without insisting/awaiting approval of the competent district authority concerning the conversion of faith”.
The court said that the approval of conversion from district authority is “directory and not mandatory”.
It added: “If interpreted otherwise, the Act [the Uttar Pradesh anti-conversion law] would not satisfy the test of reasonableness and fairness, and would fail to pass the muster of Article 14 and Article 21” the Constitution.
Another approach
However, some High Courts have taken a different approach and ruled in favour more checks during conversions and inter-faith marriages. In December 2020, the Uttarakhand High Court asked the district magistrate to conduct an inquiry where a Hindu woman converted to the Muslim faith and married a Muslim man but did not provide adequate notice under the Uttarakhand anti-conversion law. It held that the notice to the district magistrate before conversion for marriage is compulsory.
At times, the courts have themselves taken up the task of regulating conversions. In 2017, in the absence of a law on the subject, the Rajasthan High Court laid down guidelines on conversions and inter-faith marriages. The court said that anyone who wishes to convert should provide information to the district authorities before conversion and that a marriage can only be solemnised if adequate notice is given to the authorities.
Pending matters
The constitutional validity of the anti-conversion laws in at least four states – Uttar Pradesh, Uttarakhand, Himachal Pradesh and Madhya Pradesh – has been pending before the Supreme Court since February 2021. A three-judge bench of the court has agreed to test the validity of these laws but has refused to put a stay on them. However, the matter has not been heard since February 2021.
Meanwhile, petitions have also been filed before several High Courts challenging anti-conversion laws. Any challenge to these laws would require the Supreme Court to relook at its Stanislaus judgment while also taking a right to privacy judgment into account.
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