By P.K.Balachandran/The Citizen
Colombo, March 16: United States Commission on International Religious Freedom (USCIRF) report of March 2023 has condemned anti-conversion laws passed by 12 Indian states. They are gross violations of International Human Rights Law and accepted international conventions, it says.
International human rights law protects the right of an individual to convert to a different religion or belief or to become non-religious. Article 18 of the Universal Declaration of Human Rights (UDHR) provides that everyone has the right to freedom of religion or belief including “freedom to change” their religious beliefs. Article 18(1) of the International Covenant on Civil and Political Rights (ICCPR) provides that everyone has the “freedom to have or to adopt a religion or belief ”of their choice.
The UDHR and the ICCPR also protect the right of an individual to persuade or support another individual to convert voluntarily to a different religion or to no religion at all. Article 18 of the UDHR protects the right of individuals to manifest their religious beliefs “in teaching, practice, worship, and observance.”
Similarly, Article 18(1) of the ICCPR protects an individual’s right to manifest his or her religion or belief in “worship, observance, practice, and teaching.”
However, international human rights law also prohibits any individual or group of individuals from coercively converting any other individual or group of individuals to a different religion or to no religion at all. Article 18(2) of the ICCPR prohibits “coercion” that would impair an individual’s “freedom to have or to adopt a religion or belief of his choice.”
Indian State Laws
However, 12 of India’s 28 states have anti-conversion laws as of February 2023: Arunachal Pradesh, Chhattisgarh, Gujarat, Haryana, Himachal Pradesh, Jharkhand, Karnataka, Madhya Pradesh, Odisha, Rajasthan, Uttarakhand, and Uttar Pradesh.
Enforcement of these laws varies across different states. Courts have ordered some states to pause enforcement of their anti-conversion laws while others are actively charging individuals. Meanwhile, some states yet to pass anti-conversion laws continue to consider introducing them.
India’s state-level anti-conversion laws share three common features: prohibitions on conversions, notice requirements, and burden-shifting provisions. Each of the three features is inconsistent with international human rights law’s protections for freedom of religion or belief.
Vague Provisions
India’s state-level anti-conversion laws prohibit conversions under circumstances that go beyond coercion, using broad and vague language that can be used to target voluntary religious conversions.
For example, Uttar Pradesh’s Prohibition of Unlawful Conversion of Religion Act, 2021 is typical. Section three provides that “no person shall convert or attempt to convert” another individual, directly or otherwise, by “misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means.” Violations of section three are punishable by prison terms between one and five years and a fine of at least 15,000 Indian rupees (US$ 180).
Punishments are enhanced if an individual converts or attempts to convert a minor, woman, or person belonging to a Scheduled Caste or Tribe, or if a mass conversion in contravention of section three takes place. The former is punishable by prison terms between two and 10 years and a fine of at least 25,000 rupees (US$ 300); the latter is punishable by prison terms between three and 10 years and a fine of at least 50,000 rupees (US$ 600).
Love Jihad
An increasingly common feature of India’s state-level anti-conversion laws are provisions aimed at preventing so-called “Love Jihads,” a derogatory term for conversions occurring in the context of interfaith marriages.
Haryana’s Prevention of Unlawful Conversion of Religion Act, 2022 prohibits conversion or attempts at conversion “by marriage or for marriage” and concealing one’s “religion with intention to marry.” Punishments for the former are one to five years’ imprisonment and a fine of at least one lakh rupee (US$ 1,200); punishments for the latter are three to 10 years’ imprisonment and a fine of at least three lakh rupees (US$ 3,600).
Enhanced punishments for converting or attempting to convert a minor, woman, or person belonging to a Scheduled Caste or Tribe are imprisonment between four and 10 years and a fine of at least three lakh rupees (US$ 3,600).
These prohibitions violate international human rights law’s guarantee that individuals can change their religious beliefs. General Comment 22, the United Nations Human Rights Committee’s (UNHRCtee) interpretive guidance to ICCPR Article 18, affirms that the right to freedom of religion or belief does “not permit any limitations whatsoever…on the freedom to have or adopt a religion or belief of one’s choice.”
These laws also may have a chilling effect on religious freedom, as individuals may be less likely to convert to a religion of their choice if those who have persuaded or supported them to convert may be fined and imprisoned as a result.
The prohibitions also violate the rights of individuals who seek to persuade or support another individual to convert voluntarily. The UN Special Rapporteur on freedom of religion or belief notes that ICCPR Article 18 protects “non-coercive attempts to persuade others” to convert.
In addition, the Special Rapporteur states that ICCPR Article 19(2), which protects freedom of expression, also protects “communicative outreach activities aimed at persuading others, including religious discourse.”
India’s enforcement of state-level anti-conversion laws suggests the legislations’ intent is to prevent conversions to “disfavoured” religions—such as Christianity and Islam— and not to protect against coerced conversions.
Notification Requirements
Ten state-level anti-conversion laws require individuals intending to convert, individuals involved in the conversion plans of another individual, or both, to notify the government. Those states are: Arunachal Pradesh, Chhattisgarh, Gujarat, Haryana, Himachal Pradesh, Jharkhand, Karnataka, Madhya Pradesh, Uttarakhand, and Uttar Pradesh.
For example, the Jharkhand Freedom of Religion Act, 2017 requires anyone participating in a religious ceremony where someone will be converting from one faith to another to notify and receive permission from the local District Magistrate. The Act also requires the individual converting to notify his or her District Magistrate once the conversion is complete. Failure to comply with these provisions is punishable by a prison term of up to one year, a fine of up to five thousand rupees ($60), or both.
Some anti-conversion laws, such as the Karnataka Protection of Right to Freedom of Religion Act, 2022, require the District Magistrate, once notified of an individual’s intention to covert, to make a public call for any objections to the conversion. If an objection is lodged, the District Magistrate organizes an investigation “through officials of Revenue or Social Welfare Department with regard to genuine intention, purpose, and cause of the proposed conversion.”
If the District Magistrate finds that a conversion contravenes the Karnataka Protection of Right to Freedom of Religion Act, 2022, they refer their findings to police authorities “to initiate criminal action.”
Any conversion that occurs without proper notice is “illegal and void.” For an individual converting, failure to provide notice is punishable by imprisonment between one and three years and a minimum fine of 10,000 rupees (US$ 120). For an individual performing a conversion, failure to provide notice is punishable by imprisonment between one and five years and a minimum fine of 25,000 rupees (US$ 300).
International human rights law provides that governments may not compel individuals to reveal their religion or belief or changes to their religion or belief through notice requirements.
General Comment 22 to ICCPR Article 18 notes that “no one can be compelled to reveal his thoughts or adherence to a religion or belief.” International human rights law also prohibits notice requirements on the grounds that they coercively impair an individual’s right to convert. ICCPR Article 18(2) provides that no one shall be “subject to coercion which would impair his freedom to have or to adopt a religion or belief.” General Comment 22 finds that “penal sanctions,” such as those imposed against an individual for failing to notify the government about a planned conversion, constitute coercion that would “impair the right to have or adopt a religion or belief.”
In addition, a District Magistrate’s public call for objections to a conversion constitutes coercively impairing an individual’s freedom to have or adopt a religion or belief. This is particularly true in India given the violence that adherents to minority religions can face.
Seven states provide that individuals accused of violating an anti-conversion law must prove their innocence. Those states are Gujarat, Haryana, Himachal Pradesh, Karnataka, Madhya Pradesh, Uttarakhand, and Uttar Pradesh.
For example, section 12 of Madhya Pradesh’s Freedom of Religion Act, 2021 states that the burden of proof as to whether “a conversion was not effected through misrepresentation, allurement, use of force, threat of force, undue influence, coercion or by marriage or any other fraudulent means…lies on the accused.”
Innocence Not Presumed Until Proved Guilty
International human rights law prohibits individuals accused of crimes from being presumed guilty. UDHR Article 11 states that everyone charged with a penal offence “has the right to be presumed innocent until proven guilty.” Similarly, ICCPR Article 14 notes that everyone charged with a criminal offence shall “have the right to be presumed innocent until proven guilty according to the law.”
General Comment 32 to ICCPR Article 14 explains further that the presumption of innocence “imposes on the prosecution the burden of proving the charge,” not a burden on the defendant to prove his or her innocence.
Legal Developments
The Supreme Court of India continues to receive petitions requesting the body to consider the constitutionality of state-level anti-conversion laws. The Gujarat state government requested that the Supreme Court vacate the Gujarat High Court’s stay on nearly every substantive provision of Gujarat’s anti-conversion law. The Supreme Court will hear a case challenging the High Court of Madhya Pradesh’s interim order preventing enforcement of the state’s notification requirement for conversion. Separately, the Supreme Court has requested that additional challenges to anti-conversion laws in state-level high courts in Gujarat, Himachal Pradesh, Jharkhand, Karnataka, Madhya Pradesh, Uttarakhand, and Uttar Pradesh be consolidated into a single petition and filed with the Supreme Court.
Despite these ongoing legal challenges to India’s anti-conversion laws, some states continue to consider introducing them, including Goa and Maharashtra, the report says.
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