• Hindu College Gazette Web Team

The Paradox of Freedom of Religion in India

Guest Opinion

Introduction

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Article 25 in Part III of the Indian Constitution can be formally understood as the Freedom of Conscience and Free Profession, Practice, and Propagation of Religion. It grants individuals the freedom of religion. This article is a glimpse into the nuances characterizing this Right and highlights the paradox it operates under.


Article 25 gains a special meaning when viewed against the context under which the Constituent Assembly was operating— heightened inter-religious tensions, communal violence, and the trauma of partition. Through the course of the Constituent Assembly Debates, it was decided that the state was to be a neutral actor, exercising only limited intervention in religious matters in adherence to its status as a ‘welfare-state. This social context continues to have a bearing on how this Right is perceived.


Social Context and Underlying Concerns

When the idea of this Right was proposed and discussed, a concern that emerged was the possibility of forced conversions under the name of propagation of religion. Propagation was viewed to be congruent and inseparable with conversions, forced or otherwise. Two proposals were put up in front of the Constituent Assembly with respect to conversion and propagation: one by the Christian Minority which wanted the Right to Propagation to be a fundamental right since it was an integral part of their religion, and the other by the Hindu majority which sought to ban all conversion with undue influence and coercion. Various arguments were put forth that said that conversions could be used to disintegrate the Indian society, which was majorly Hindu. Conversions were argued to be a manifestation of separatist tendencies. Furthermore, a threat to the numerical superiority of the Hindus as a result of conversion was a major point of concern that dominated the Assembly debates. However, it was decided that the freedom of conscience under the Right entitled people the autonomy to choose and practice, profess and propagate a religion of their choice. It was also well within their rights to choose to change religions, if they so wished. A caveat was added, however, that no form of forced or coerced conversions would be tolerated under the law and the state reserved the right to intervene (Wani 2000).


The judiciary’s role in interpreting the Right to Freedom of Religion as well as unpacking weighty concepts like the meaning of terms like “conscience,” “propagation” as well as demystifying what “religion” itself meant is interesting. The objective of upholding secularism was a priority for the judiciary. However, what is striking is the inconsistency characterizing judicial pronouncements vis-a-vis freedom of religion. The judiciary relied on the Doctrine of Essentiality to convey what was and was not an inherent and integral aspect of a religion. This was decided on a case-to-case basis. Consequently, there is no empirical basis of determining violations on the Freedom of religion of an individual (Subramanian 1961).


The constitution of India is an organic structure and the laws and acts in it do not exist in a vacuum, they have to be seen and read with other articles and laws, as well as the political context it operates within. Article 25 is no different. It is directly affected by the states-specific Freedom of Religion Act(s) and the Special Marriages Act, 1954.


A Cunning Misnomer: Freedom of Religion Acts

When it comes to the passage of the Freedom of Religion Acts, the fear that the Hindu Majority in the country will be reduced to a minority because of the Abrahamic religions like Christianity and Islam propagating their religion lurks at the backdrop. The conspiracy of conversion led various state governments during the 1960s and 1970s— mostly Hindu-majority— to legislate a slew of “Freedom of Religions Act(s)” in their respective states. The Act was a misnomer. In reality these laws sought to ‘protect’ citizens against conversions. The personal is political, but the issue arises when the personal is politicized. This is what has happened in the case of the ironically named Freedom of Religion Acts sought to be passed by state governments across India in the present-day scenario as well. These are colloquially called “Love Jihad Ordinances”.

Image Credits: The Wire


Multiple Anti-conversion bills were floated in the Indian parliament over the years including the Indian Conversion (Regulation and Registration) Bill, 1954, The Backward Communities (Religious Protection) Bill, 1960 and the Freedom of Religion Bill, 1979 but all of them were rejected. This led to states like Odisha, Arunachal Pradesh, and Himachal Pradesh etc. to pass Freedom of Religion Bills to stop forceful conversions, provisions for which already existed in the constitution. These laws ban conversion by means of misinformation, force, influence, coercion or by any fraudulent means or marriages; they also place strict conditions for conversion on the citizens and place the burden of proof that the conversion was by choice on the citizen converting. These acts also generally give the state the power to null marriages if the conversion was done for the sole purpose of it (Dutta 2020). However, according to the US Commission on International Religious Freedom, these laws have resulted in a miniscule number of arrests and zero convictions but they are used to harass and create a hostile environment for the religious minorities in these states (Congressional Research Service 2018). This goes along the lines of the 2014 Allahabad High Court judgment in Smt. Noor Jahan Begum vs. State of U.P. which said that conversion because of marriage will not be considered bonafide.


With the rise of conservative parties in the country, the conspiracy of Love-Jihad has been picked up again by various state governments. Despite the central Home Ministry saying that no case of Love Jihad has been reported by any investigative agency whether national or state the government of the state of Uttar Pradesh passed the Uttar Pradesh Unlawful Conversion Prohibition Ordinance, 2020 with the governments of Haryana, Assam and Karnataka promising to follow suit. The Madhya Pradesh government also decided to enforce its Freedom of Religion Act of 1968. The communal shade undertaken by these state governments unravels the secular fabric of our society as established by the Constituent Assembly (The Hindu 2020).


Secularizing Marriage: Special Marriages Act, 1954

The Special Marriage Act (SPMA), 1954 is the closest any law in India has come to being able to claim religion-neutrality. It has been applauded for enabling religion-neutral civil marriages and for giving love the legitimacy it needed to truly make people free. Inter-faith marriages in India are legal under the SPMA. All Indian citizens and all Indian nationals in foreign countries, irrespective of the religion followed by either party can be legally wedded. While the SPMA guarantees the right to a civil and secular union between couples of differing faiths, the logistical hurdles an interfaith couple faces, along with the societal stigma and harassment. There have been several instances where allegations of rape and kidnap have been levelled against the man getting married. Since a marriage cannot go through if a First Information Report is filed against either party, this is a common tactic used by disgruntled families to annul the marriage. As a caveat, it is also important to note that this practice is entrenched in the casteist and patriarchal norms governing our country and only considers inter-faith couples within its ambit. The eventuality of such occurrences implores either one of the couple to convert to the faith of the other, and marry following the religious practices of the particular faith. Furthermore, if a person does get married under the SPMA, they are legally severed from the “Hindu Undivided Family” and the personal laws governing it— for example, inheritance laws do not apply to them (Saxena 2020). This is interesting, considering the Supreme Court’s judgement in Goolrokh Gupta vs Burjor Padriwala where it held that “marrying under the Special Marriage Act is only for the retention of original identity.” Clauses like the one which allows for objections from the public and alienation from one’s community through laws that encourage severance from one’s family is one of the many ways by which the essence of the Act is lost. Not only does it violate the Right to Privacy of the couple but also impinges upon Article 21’s guarantee of Right to Life in its entirety since it takes agency away from an individual.


The Paradox

A paradox emerges where the SPMA, despite its conception as a law to encourage interfaith marriage, does more harm than good. Blatantly problematic clauses within the SPMA that violate Article 21 of the individuals, nudge them towards the seemingly easier option of one of them converting. This, along with the rising tide of saffronisation and communal politics in India has led to ordinances like the 'Love Jihad' envisaged as a curative measure to “stop conversions.”


However, recently, in a landmark judgment in Priyanshi@Kum Shamreen v State of U.P., the Allahabad High Court in 2020 denounced the 2014 judgment from the single bench in Smt. Noor Jahan Begum vs. State Of U.P. observing that consenting legal adults have the right to get married and all adults have the right to convert to a religion of their choice and no individual, family or even the state can have an objection to such a relationship. This has dealt a major blow to the legitimacy of the Unlawful Conversion Prohibition Ordinance passed by the state government. It also cited the Apex Court’s judgment in Shafin Jahan v. Asokan K.M that the liberty of an individual who has attained legal age has to be respected in who they chose to marry and whether they convert religions, whether to get married or not.


Concluding Remarks

Political thinker Ronald Dworkin once said that the concept of Rights has its most natural use when a political society is divided and appeals to co-operation or a common goal are pointless. If the government does not take Rights seriously, then it does not take Law seriously (Dworkin 1977). We must be mindful that just as Article 25 is a safeguard on an individual's religious freedom, it must also be protected as envisaged by the web of fundamental rights that all of us are entitled to and must protect fiercely. This is especially true when it comes to the role of religion in inter-religious marriages in India.


Our Ambedkarite Constitutional legacy must be a guiding force for us in envisioning a normalisation of inter-religious marriages. Dr Ambedkar’s fierce belief in the power of Fraternity (as guaranteed by the Preamble) as a means to secure Liberty and Equality is a theoretical framework we must embed in the practical ensconcement of a secular society. He also believed that inter-caste and inter-religious marriages would be the only way caste-based and communal tensions in the country are resolved because in our society, kinship reigns supreme . Thus we fiercely need to protect the Freedom of Religion and the Freedom of Conscience and Free Profession, Practice and Propagation of Religion.Legislations cannot and must not have the power to circumvent the essence of the fundamental Right of Religious Freedom. It must be safeguarded from subversion due to social and political factors at play. This is possible only through strong judicial intervention as evidenced in the essay as well as involvement of a more inclusive and open civil society.

By Anirudh Jaiswal and Bala Panchanathan (Guest Writers)

Anirudh Jaiswal is a first year Masters of Public Policy Student at National Law School of India University, Bangalore. He is interested in sustainable development and livelihood generation in the Himalayas and quantitative analysis of policy and politics. He writes poetry sometimes and is an aspiring academic.


Bala Panchanathan is a student of Master's in Public Policy at the National Law School of India University. She is interested in urban policy and governance, technology policy and development. She hopes to work towards a more inclusive and sustainable society through public policy. She is a film connoisseur and avid bicyclist.


References:

  1. Article 25-28, Constitution of India, 1950.

  2. Congressional Research Service. 2018. ‘India: Religious Freedom Issues”. Congressional Research Service.

  3. Dhavan, Rajiv. 1987. ‘Religious Freedom in India’. The American Journal of Comparative Law 35 (1): 209-254

  4. Dutta, Prabahas. 2020. ‘'Love jihad' undefined, yet states rushing with anti-conversion laws’, (https://www.indiatoday.in/news-analysis/story/love-jihad-anti-conversion-laws-madhya-pradesh-uttar-pradesh-haryana-karnataka-1741872-2020-11-18) (posted on 18 November 2020) (accessed on 11 December 2020).

  5. Dworkin, Ronald. 1977. Taking Rights Seriously. Massachusetts: Harvard University Press.

  6. Narrain, Arvind. Radical Constitutionalism: Towards an Ambedkarite Jurisprudence, in Akash Singh Rathore, Ed. The Quest for Justice, Vol.III, Oxford University Press (forthcoming, 2020).

  7. Saxena, Saumya. 2020. ‘Anti-Conversion Laws See Love as a Hate Crime’, (https://thewire.in/rights/anti-conversion-laws-love-hate-crime-right-wing) (posted on 29 November 2020) (accessed on 9 December 2020).

  8. Subramanian, N.A. 1961. ‘Freedom of Religion’. Journal of the Indian Law Institute 3: 323-350

  9. The Hindu (New Delhi). 2020. ‘‘Love jihad’ not defined under law, says Centre’, 5 February 2020, https://www.thehindu.com/news/national/love-jihad-not-defined-under-law-says-centre/article30736760.ece (accessed on 9 December 2020).

  10. Wani, M Afzal. 2000. ‘FREEDOM OF CONSCIENCE: CONSTITUTIONAL FOUNDATIONS AND LIMITS’. Journal of the Indian Law Institute 42: 289-2313.


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