UP enacts strict anti-conversion law: A brief history of the anti-Proselytism law in India, major judgments, Centre’s stand

Anti-conversion laws are not unique to Uttar Pradesh. Over the past decade, states such as Jharkhand, Uttarakhand, Himachal Pradesh, and Karnataka have enacted similar laws.

History of anti-conversion law

Among the host of rights guaranteed by the Indian constitution, Article 25 has a contested interpretation it guarantees all persons an equal right to freedom of conscience and the right to freely profess, practice and propagate religion. And, from this right emanates an important question that is whether this right includes the right to convert others.

Starting from the commencement of the constitution, there were several occasions when the issue of conversion came before the court of law for adjudication.

In 1967 and 1968, Odisha and Madhya Pradesh passed anti-conversion laws: the Orissa Freedom of Religion Act, 1967, and the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968. Both laws prohibited forcible conversion and and made it a punishable offence. After its enactment, both Acts were challenged in their respective High Courts.

The Madhya Pradesh High Court upheld the validity of the Act.  However, the Odisha High Court held that Art. 25(2) of the Constitution guarantees propagation of religion and conversion is a part of Christian religion; and that the State Legislature has no power to enact such law.

The Supreme Court later reviewed both Acts in Stanislaus v. State of Madhya Pradesh. The apex court in great detail delved into the issue of whether the fundamental right to practise and propagate religion includes the right to convert.

The Constitution Bench, led by Chief Justice AN Ray, upheld the laws prohibiting conversion by force, fraud, or allurement. The Court clarified that "propagate" in Article 25(1) allows one to transmit or spread one's religion by an exposition of its tenets but not the right to convert another person to one's own religion.

The Supreme Court’s landmark judgment emphasized that Article 25(1) guarantees freedom of conscience but does not include a fundamental right to convert others.  The judgment reads, "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."

Some argue that religions such as Christianity consider proselytism essential to their faith, its exclusion from Article 25 violates their fundamental religious right. On this point, eminent legal scholar Dr DD Basu in his book in Introduction to the Constitution of India, criticizes this view. He swrites, “It is amazing that some Christian leaders assert that the word ‘propagate’ in Article 25(1) gives them a fundamental right to convert people of other Faiths into Christianity, by any means. This assertion, followed by agitation, is particularly amazing because it seeks to undermine the decision of the Supreme Court in Stainislaus's case in January 1977.”

Basu writes that the case which was meant to challenge the constitutional validity of the anti-conversion laws passed by Odisha and Madhya Pradesh was filed by several members of the Christian community. But the contentions of the Christian community were rejected "in toto", by the Supreme Court, laying down propositions of law which are, under the Constitution, binding upon all Courts in India.

Among the various propositions one which is extremely important is that, "Even assuming that a particular religion had the right to propagate its tenets by any means, including conversion, the State has the right and duty to intervene if such activity of conversion offended against public order, morality or health', because the guarantee of freedom of religion in Art. 25(1) is subject to the limitations of public order, morality, or health."

It is important to note that convert here connotes converting others, and the restriction does not extend to an individual decision to convert. In S Pushpabai v. CT Selvaraj case, the Supreme Court affirmed that individuals have the right to convert to another religion, provided the conversion is genuine and voluntary.

States with anti-conversion law 

Other states that have passed anti-conversion laws include Arunachal Pradesh which enacted an anti-conversion law in 1978 (called the Arunachal Pradesh Freedom of Religion Act, 1978). Gujarat in the year 2003 passed the Gujarat Freedom of Religion Act, 2003. Chhattisgarh passed a law to this effect in 2006. The Uttarakhand Freedom of Religious Act was enacted in 2018 to curb forceful conversion. Himachal Pradesh enacted a law to check forceful conversion in 2019 and the Karnataka government in the year 2021 passed The Karnataka Protection of Right to Freedom of Religion Act, 2021

International Convention 

Commenting upon international precedents and conventions against forceful conversion, Dr Basu writes, "Those who rely on the International Charters in support of their freedom to convert have not mentioned Art. 18(2) of the International Covenant on Civil and Political Rights, 1966, which says—No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice."

This freedom of every man to adopt a religion of his choice is guaranteed by clause (1) of Art. 18. The two clauses, read together, mean that every individual shall have the freedom to choose his own religion or belief in worship and this freedom shall not be impaired by the use of coercion by any individual attempting to induce him to adopt another religion.

On different occasions, the Supreme Court and various High Courts have held that forceful conversion is not permissible under law. On July 10, while denying bail to some accused persons charged with the offence of forceful conversion, the Allahabad High Court said, “The Constitution confers on each individual the fundamental right to profess, practice and propagate his religion. However, the individual right to freedom of conscience and religion cannot be extended to construe a collective right to proselytize.”

Central government's position on conversion 

Echoing the view of the court in landmark judgments like Stanislaus, in an affidavit filed before the apex court, the Union government had pointedly noted: "It is submitted that the right to freedom of religion does not include a fundamental right to convert other people to a particular religion. The said right certainly does not include the right to convert an individual through fraud, deception, coercion, allurement or other such means”.

Forceful conversion has led to severe consequences, such as the murder of Australian Missionary Graham Staines and his two sons. The vague terms in existing laws, like misrepresentation, force, fraud, and allurement, are prone to misuse.

There is a need for a uniform national law with clear definitions to regulate conversion. However, in 2015, the Union Law Ministry stated that Parliament lacks the authority to enact laws prohibiting conversion, creating a legislative vacuum. Consequently, states have been left to address this issue.