Name: Moses Raj G S

Name of the paper : Karnataka’s Anti-Conversion Law Forgotten in Noise Over Hijab

Published on : February 27, 2022

No Indian or international rule nor law says the State can question the intention of a person who adopts or practices any religion they choose.

The commotion over a Karnataka government order that effectively bars Muslim girls from wearing the hijab or headscarf to schools has overshadowed another controversial law passed in December in the state. Last year, Karnataka became the tenth state to have passed a law that criminalises religious conversion. There were heated debates on the State legislature floor over the Protection of Right to Freedom of Religion Act, 2021. Characteristically, the ruling Bharatiya Janata Party (BJP) government defended it vociferously. The state Rural Development and Panchayati Raj Minister KS Eshwarappa even said that the State would bring “another hundred Bills” to protect Hindu religion. Protests on the streets and approvals followed, perhaps in equal measure.

Law and order is a State subject in the Constitution, so what this law calls “regulating” religious conversion by “misrepresentation, force, undue influence, coercion, allurement or fraud” lies under the control of the Karnataka government. That said, five questions need to be raised in the context of the religious conversion law. First, does the State have unlimited powers to monitor, admonish, and restore who a person can worship? Second, can the state enter the private domain of a person’s religious liberty in the name of public order, morality and health, even if they go against individual equality and autonomy guaranteed under Articles 14, 19 and 21? Third, up to what generation, when counted backwards in the family tree, is a person considered to have belonged to a particular religion? Fourth, can courts interpret personal religious rights based on the doctrine of constitutional morality? How strict should the separation between religion and government be, particularly when minority rights are affected? Fifth, when the equality of religions is a fundamental constitutional principle, can the State make differentiated rules for sacred and secular practices?

Conversion, re-conversion and loss of ‘original’ identity
Campaigns for gharwapsi (re-induction into the Hindu fold) and love jihad or the alleged romantic duping of Hindu women by Muslim men have been led amid loud hate speeches, mud-slinging and vitriol. Let us consider this issue from a legal standpoint: the Constitution does not bar the number of times a person can change their religion. Suppose we theoretically accept that an individual’s decision to change their faith is also a conversion of their descendants. Even then, the Karnataka law’s use of the broad term “mass conversion” is hard to understand. Section 5 of the state’s Protection of Right to Freedom of Religion Act does not refer to an entire community getting converted. Instead, it creates an extensive category that includes minors, those of unsound mind, women and Scheduled Caste or Scheduled Tribes.

In law, the general rule is that a person of unsound mind is not competent to contract or enter any legal relationship, let alone get punished for an offence. However, the inclusion of women in the category of those barred from conversion sabotages female agency. The Statement of Objects and Reasons gives no clarity on why women are included in this category. Nor was their inclusion discussed when the Karnataka Assembly passed the law. It seems as if, through this law, women have surrendered their right to religious freedom to the state.

To ascertain the loss of ‘original’ identity by way of religious conversion is to question the elementary aspects of what one considers personal faith: a spiritual inclination and connection, belief in a holy power and, of course, the history of the family in practising that religion. However, this guilt of “loss” is largely individualistic and cannot be treated as the entire community’s loss. To this end, apostasy or renunciation of one’s religion is not regulated by law but dictated by customs and traditions.

Does conversion improve social mobility?
Section 9(9) of the Karnataka law says that the district magistrate or another concerned authority shall “reclassify” the converted person to determine their social status and economic entitlements due from the government. In a recent case, the Madras High Court held that the caste of a spouse does not change after religious conversion for marriage. Hence, welfare benefits such as reservation in government jobs and caste-oriented schemes cannot be maximised as gainful social mobility with a vested interest.

If so, marriage does not erase an individual’s socio-legal history. BR Ambedkar believed that education and inter-caste marriages would end caste discrimination, but it appears religious conversion does not change that.
Last August, the Gujarat High Court stayed a similar anti-conversion law, observing that interfaith marriage cannot be automatically termed an unlawful conversion. The court said that such a premise violates the right to life. The Gujarat ruling may not be binding on Karnataka but certainly has persuasive value as positive jurisprudence.
Further, in the sensational Hadiya case, the Supreme Court categorically ruled that the “choice of a partner whether within or outside marriage lies within the exclusive domain of each individual. Intimacies of marriage lie within a core zone of privacy, which is inviolable. The absolute right of an individual to choose a life partner is not in the least affected by matters of faith. The Constitution guarantees to each individual the right freely to practise, profess and propagate religion. Neither the State nor the law can dictate a choice of partners or limit the free ability of every person to decide on these matters. They form the essence of personal liberty under the Constitution.”
It is similar to the interpretation by the Supreme Court in KS Puttaswamy that the right to privacy extends to personal relationships.

Ten Years’ Imprisonment
In the First Schedule of the Code of Criminal Procedure, any offence that involves punishment of three or more years is generally cognizable and non-bailable. Religious conversion could attract three years to a decade in jail as per Section 5, as in Uttar Pradesh and Madhya Pradesh. So, religious conversion is seen as a heinous offence alongside murder, rape, killing for dowry, dacoity and sedition.

Another recent Bombay High Court order clarified that offences under any law other than the Indian Penal Code, where punishment is for more than three years, as with the Karnataka law, grants the police right to arrest and investigate cases without a warrant. It would make bail or parole for an accused or convict highly dependent on the will of a judge. If the sole purpose of the law is to prevent and prohibit religious conversions, what explains the gravity of the punishment? To understand this in more detail, the Karnataka law says the person changing their religion to submit several detailed forms to the district magistrate. These forms are to contain their name (before and after conversion), date and place of conversion, qualification, experience, address of the priest, and at least two witnesses to the conversion ceremony. The laborious procedure is not the only problem here. These forms are permanent records of the State, and they convert a citizen’s personal freedom to practice a religion into state documentation.

Article 16 of the Universal Declaration of Human Rights says men and women have the right to marry and start a family. Article 18 of the UDHR safeguards freedom of thought, conscience, and religion, including the right to change one’s faith. In the International Covenant on Civil and Political Rights (ICCPR), freedom of religion includes the “freedom to have or adopt a religion or belief of one’s choice.” The right extends to manifesting religion or belief in teaching, practice, worship, and observance. It includes expressions intended to persuade another individual to voluntarily change their religious beliefs or affiliation. The ICCPR provides the right to freedom from coercion that would impair the freedom to have or adopt a religion or belief of one’s choice. India has ratified the UDHR and ICCPR, so these international rules apply to it.

India’s long history is marked by interfaith dialogue, pluralism and religious harmony. Humanism and reform—the former focused on reason and the latter on social transformation—are key to decisional autonomy and individual rights. Article 25 (freedom of conscience), the first fundamental right (freedom of speech and expression), and the eighth fundamental duty, which says the State must develop a scientific temper, humanism and the spirit of inquiry and reform. None of these indicates that the intention of a person who adopts or practices any religion can be put under the scanner by the State. Striking down an anti-conversion law in Evangelical Fellowship of India vs State of Himachal Pradesh (2012), Justice Deepak Gupta observed, “New thinkers are born when they disagree with well accepted norms of society.” He also said that if a person does not ask questions and does not raise issues questioning age-old systems, no new systems would develop, nor the mind’s horizons expand. “Whether it be Buddha, Mahavira, Jesus Christ, Prophet Mohammad, Guru Nanak Dev, Martin Luther King, Kabir, Raja Ram Mohan Roy or Swami Dayanand Saraswati, new thoughts and religious practices would not have been established if all these figures had quietly submitted to the views of their forefathers, if they had not questioned the existing religious practices, beliefs and rituals,” he said. This explains why the Karnataka law is a wake-up call, beckoning Indians to search their souls.

The author is an Assistant Professor at St. Joseph’s College of Law, Bangalore. The views are personal

Link : https://www.newsclick.in/karnatakas-anti-conversion-law-forgotten-noise-over-hijab