The Karnataka Assembly passed the Karnataka Protection of Right to Freedom of Religion Bill, 2021 on Thursday, which is popularly called Anti-Conversion Law, possibly because it prescribes conditions under which a religious conversion can happen. However, at the outset, it must be made clear that the law doesn't ban conversions altogether.
Various questions about the validity of this law have been raised, making it pertinent to expose the legal position on the point. It must be understood that the legislature is free to frame any law, as long as it does not conflict with any of the restrictions prescribed by the Constitution.
The primary condition that any law has to satisfy is ensuring that it doesn’t violate any fundamental rights. In the instant issue, the concerned fundamental right is Article 25, which guarantees “Freedom of conscience and free profession, practice and propagation of religion”. The first line of the provision makes this right “subject to public order, morality and health and the other provisions of this Part”. In simpler terms, the provision means that all persons can avail freedom of practising, professing and propagating their religion if it doesn't come in conflict with public order, morality, health and other fundamental rights.
Therefore, to determine if the law comes into conflict with Article 25, we have to see if it falls within the exceptions: Public order, morality, health, or protection of other fundamental rights. This is answered by the statement of objects and reasons of the law, which says: “State has noticed many instances of conversion by means of 'allurement', ‘coercion’, 'force', ‘fraudulent means’ and also ‘mass’ conversion. These instances caused disturbance of ‘public order’ in the state.”
The legislature has directly invoked the exception of 'public order', which is being threatened by the conversion activities that are underway in the state. One may not just trust the word of the state on this. However, it is well settled that a mala fide motive can't be attributed to a legislature (Karnataka Assembly in this case). The Supreme Court has decided it in K. Nagaraj & Ors. v. State of Andhra Pradesh & Anr. “The legislature, as a body, cannot be accused of having passed a law for an extraneous purpose. If no reasons are so stated as appear from the provisions enacted by it. Its reasons for passing a law or those that are stated in the Objects and Reasons. Even assuming that the executive, in a given case, has an ulterior motive in moving a legislation, that motive cannot render the passing of the law mala fide. This kind of 'transferred malice' is unknown in the field of legislation,” the court said.
This clarifies that when a state legislature has enacted a law, its objects and reasons are to be believed. Thus, it is to be assumed in the case of this law that, indeed, the scale of conversion activities in the state was such that it was threatening the public order. If one were to challenge and argue that this is not the case, then the burden of proof will be on them to show to the court that conversion activities are not threatening public order.
It should be noted that the concerns about the use of fraudulent means in conversion and consequently disturbances to public order is not new. These have been there around since the 1950s when the then Congress government of Madhya Pradesh had set up the Niyogi Committee, which came out with the 'Report on Christian Missionary Activities', in which it was indicated that conversions were being done by acts like “loans for plough”, etc. It can be no one’s case that the Constitution protects the right to convert someone else by offering money and other material means.
More importantly, Article 25 protects the “propagation of religion”, which is nearest to what conversion may mean. It can be argued that the right to convert someone else is also a fundamental right included in the right to propagate. However, this argument has been negated by the Supreme Court in Rev. Stanislaus vs State Of Madhya Pradesh, where it has held: “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.”
Therefore, it is clear that there is no fundamental right to convert someone else under the Constitution. This means that there can be no challenge of a law that restricts conversion activity. It must be impressed here that even if such a right was a part of Article 25, the state could still curtail its execution if there were problems of public order arising out of it.
One of the more contentious provisions in the law is Section 6, which makes a marriage invalid if it is done with the sole purpose of unlawful conversion. It must be noted that this is not the first law that connects marriage and religious conversion; these two have historically been connected in religious philosophies as well as other laws.
For instance, the Hindu Marriage Act provides that if one spouse converts out of Hinduism, then the other spouse has a right to seek divorce if they so choose; it is not automatic. It must be noted that the spouse who is converting out of Hinduism has no right to seek divorce on account of their own conversion. Under canonical Muslim Law, which was practised before the enactment of ‘The Dissolution of Muslim Marriages Act, 1939’, a Muslim marriage would automatically dissolve the moment any spouse converts out of Islam. Even under this current law, if a Muslim husband converts out of Islam, the marriage is automatically dissolved.
However, this is not true for a Muslim wife, and the marriage is not automatically dissolved. It can be argued that an automatic dissolution of marriage is an unreasonable impediment on a Muslim man's choice to convert out of Islam.
Thus, the Karnataka law, which seeks to invalidate a marriage if done in furtherance of a promise to marry, is constitutionally valid. Conversion in or out of a religion should be an exercise motivated by the teachings and principles of the religion concerned and should not be dictated by what religion the spouse is practising.
It must be noted that the Karnataka law provides that the said annulment of marriage can only be obtained if one of the parties petitions the court to that effect. It doesn't automatically invalidate such a marriage. Such a petition can only be moved when one of the spouses feels cheated on account of being converted; the law only provides a mechanism to remedy this situation.
Therefore, it will be difficult to argue that any provision of the Karnataka law violates the mandate of the Constitution or impedes Freedom of Religion.
The writer is an Assistant Professor of Law at Maharashtra National Law University, Mumbai. Views expressed are personal.
from Firstpost India Latest News https://ift.tt/3pxhaIa
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