All in the name of freedom and religion

By Nikhat for TwoCircles.net,

A case study on anti-conversion law in the State of Gujarat

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“It is not the business of the state or any other group or community to act as guardian of people’s conscience and encourage, impose or censure any religious belief or conviction”1

– Mr. Amor, Former UN Special Rapporteur on Freedom of Religion –

Protection to minorities and minority rights is one of the most important promises of a democracy but when it comes to the state of affairs in the State of Gujarat, minority rights are at the back seat. State of Gujarat has become a paramount symbol of subjugation and denial of minority rights and recent past is full of such phenomenal examples. One of such draconian steps of the Government is its much criticized anti-conversion stand, which led to the enactment of one of the monstrous legislation of the time, the Gujarat Freedom of Religion Act 2003.

Although the nomenclature as such suggests it, a ‘freedom initiative’ but contrary is the purpose and intent of this law, which is deeply rooted in the sectarian and divisive Hindutva (fascist) ideology of the BJP and Modi’s government. On one hand it tends to protect and patronize the oriental and fossilized Hindu caste hierarchies and on other hand to persecute Minority religions. Emphasis added.
It is a subtle means for preserving ‘upper’ caste hegemony and stave off threats to it.2

The legislative history of anti-conversion laws in Modern India goes way back to the colonial period, when in 1936, for the first time such law, namely, the Raigarh State Conversion Act, 1936 had been enacted and then just before independence in 1946, the Udaipur State Conversion Act came in to being.
With the emergence of independent India, a constitutional democracy, in the sorrow pretext of partition and subsequent communal division of the Indian society, the Indian Parliament rejected the Indian Converts Bill in 1955, first of such efforts in independent India to regulate conversions in the entire country, on the ground of the inbuilt and well founded apprehension of the harassment that would ensue because of the unfettered control local authorities would have gained after its passage3.

Worth recalling, 1955-56 is the year of codification of Hindu Personal Law, which were in sheer neglect and negation of Ambedkar’s Hindu Code Bill and adherence to Brahamanical and Manu’s ideology and also this is the year when more than five lakh Hindu “untouchables” have publicly renounced Hinduism and adopted Buddhism4.

In 1968, two of the states viz. Madhya Pradesh and Orissa with high Dalit and tribal population have enacted their respective anti-conversion laws [the Madhya Pradesh Dharam Swatantrata Adhiniyam and the Orissa Freedom of Religion Act respectively]. Both the laws were challenged on the ground of breach of fundamental right to religion in the respective High Courts. The Madhya Pradesh High Court upheld the constitutionality of the Act and but Orissa Act was struck down by Orissa High Court on ground of legislative incompetence to enact law on the subject of religion, However both the High Courts had shown similar views relating regulation and penalizing the conversion, except on he point of Orissa High Court’s observation that conversion forms an essential part of religion. The case had finally reached the Supreme Court of India, where the Constitutional Bench comprising of Mr. AN Roy [Chief Justice of India], MH Beg, RS Sarkaria, PN Singhal and Jaswant Singh had put its final seal on the Order of High Court of Madhya Pradesh and gave a very far reaching observation that “the word ‘propagate’ has been used in Art 25(1), for what the article grants is not the right to convert another person to one’s own religion but to transmit or spread one’s religion by an exposition of its tenets”5

With this green signal from the highest judicial body of the country, more states have joined this group including Arunachal Pradesh (in 1978), Tamil Nadu (in 2002, later repealed in 2006), Gujarat (in 2003) and Chattisgarh. Both Himachal Pradesh and Rajasthan Assemblies have cleared the similar Bills but were not assented by the Governors.

Table: Comparative Chart of Maximum Imprisonment and Fine for the
Crimes under the Freedom of Religion Act

While these laws appear to protect religious adherents only from attempts to induce conversion by improper means, they have been criticized on the ground that the failure to clearly define what makes a conversion improper bestows on the authorities unfettered discretion to accept or reject the legitimacy of religious conversions.6

The National Commission for Minorities also has expressed its profound concern over the attempt in such state laws on religious conversion to interfere with the basic right to freedom of religion or belief. Provisions relating to notice and selective enquiry will allow state functionaries to interfere in matters of personal life and religious beliefs, thus impinging on the freedom of conscience and free profession, practice and propagation of religion guaranteed by Article 25 of the Constitution of India.

The UN Special Rapporteur on Freedom of Religion, Asma Jahagir highlights the fact that the rights to freedom of religion or belief has an absolute character and are not subject to any limitation and includes the right to adopt a religion of one’s choice, the right to change religion and right to maintain a religion.

International human rights law clearly prohibits coercion that would impair the right to have or adopt a religion or belief including the use or threat of physical force or penal sanctions to compel believers or non believers to adhere to their religious belief and congregations, to recant their religion or belief or to convert. Similarly, a general prohibition of conversion by a state necessarily enters into conflict with the applicable international standards.

The Gujarat Freedom of Religion Act 2003 (GFRA)

The Gujarat Freedom of Religion Act 2003 has been enacted with an objective of ensuring freedom of religion by prohibiting conversion from one religion to another by use of force or allurement or by fraudulent means. Like all other anti conversion laws of the country, it prohibits 7 and penalizes 8 conversion, attempt of conversion and abetment (inducement) of conversion by force, allurement or fraud, with a maximum imprisonment of three years and fine up to fifty thousand rupees. In addition to this the punishment becomes harsher in case of a minor, woman, Scheduled Caste or Scheduled Tribes to a maximum imprisonment of four years and a fine up to one lakh rupees.

Further, prior permission from the DM is a must with respect to every conversion. Accordingly, the priest and any one facilitating the process of conversion are mandated to seek advance permission of the DM 9. By virtue of this provision, the DM has been given a very wide and sweeping discretionary power by making him the only authority to accept or reject the permission for conversion 10. Similarly, the convert is also required to give intimation to the District Magistrate 11 within 10 days of the conversion 12.

Mere failure to do the same would amount to a punishable offence and will attract a maximum imprisonment of one year and fine up to one thousand rupees. Also, for every prosecution under the Act, the sanction of the DM is mandatory 13.

Furthermore, the requirement of advance notice or prior permission seems to be unduly onerous for the individual who intends to convert. Any state inquiry in to the substantive and motivation for conversion is highly problematic since it may lead to interference with the internal and private realm of the individual’s belief. This problem is aggravated if such a FRA awards specific protection to the state government and its officers against prosecution or legal proceedings with regard to ‘anything done in good faith or intended to be done under the Act or any rule made thereunder’.14

This law is completely silent as to the right to appeal against the DM’s order and the finality of the DM’s order [Whether DM’s decision is final or not?].

Precisely, this law completely depends on DM’s volition, if DM wishes; he/she can allow/disallow conversion/reconversion and prosecution. It makes this law a classical case of jiski lathi usi ki bhais.

An attempt was made in 2006 by the BJP led Gujarat Government to give immunity to reconversion to forefathers’ religion or original religion against the application of this law and also to include Jainism and Buddhism within the fold of Hindu religion by amending the Act. Fortunately, the Gujarat Freedom of Religion (Amendment) Bill 2006 was withdrawn due repeated insistence to scuttle the Bill by the Governor.

I will use one hypothetical case followed by two real case studies to understand and explain the real intent of the Gujarat law and also to explain how minority rights find a back seat in Gujarat.

ONE: Conversion of a Hindu Girl to Islam before Marriage

Let’s assume a classical case of inter-faith marriage between a Hindu or a Muslim lady and Muslim/Hindu boy, where she got converted to her husband’s religion with free choice and consent. The priest has solemnized the marriage and the conversion. Till now, no force, allurement or fraud has been alleged, but prior permission was not taken by any of the priest, boy or the witnesses and also no ‘intimation of conversion’ was made by the girl also (convert).

Now, the fate of the persons involved would be determined by the place of the conversion and the residence (temporary or permanent) of the convert. If it happens to be Gujarat, then jail is the only place for all of them even if the conversion is done with free choice and consent.

According to the Gujarat Act, the boy, priest and witnesses are criminals under the Act for holding, facilitating and participating in the conversion ceremony without permission of the DM and the girl shall also be a criminal under the same law, for not intimating the DM about her conversion.

Now, the testimony of the girl will become very important to during the enquiry to decide force, inducement or fraud on the part of the boy, priest and witnesses.

If she refuses force, fraud or inducement, she will be punished for not intimating the DM about her conversion and if she does so then her husband and others will be punished.

What will this girl do then? Would she testify for force, fraud and inducement by her husband or will she face punishment? A real difficult choice for her to make.

A more or less similar case has happened in Surat district of Gujarat, the first ever prosecution under the Freedom of Religion Act 2003, in which, very recently, a Special Public Prosecutor has been appointed by the Government of Gujarat. In this case, a Muslim boy, namely Junaid Mohammed has been accused of converting a Hindu girl to Islam and presently is in jail.

The story goes back to a Share Broking Firm on Udhna-Magdballa road, where Both Junaid and the girl were employed. While working together at the firm, both came close and got married on January 24, 2009 by Maulavi Yakum Sulaiman Mulla. She was named Zoya after her marriage. Hearing this, her mother had made a complaint to the City Police Commissioner and an FIR was lodged against him and the Maulavi in Khatodrara Police Station. Later, he was arrested and sent to jail and her wife is living in a Shelter Home for Women.

TWO: Mass (Re) conversion of Christian to Hinduism

On December 22, 2009, a Maharashtra based Hindu Organization called Shree Sampraday, a Vasihnav sect, has organized an event at Anavil Party Plot, Rekha Park, Surat, where, under the leadership of Jagadguru Narendracharya Maharaj (One of the three Jagadgurus) along with Yashwant More, Secretary of Surat District Seva Samiti of the Sampraday and ten priests, 1,747 tribal from Gujarat and Maharashtra (including the districts of Dangs, Navsari, Valsad, Thane, Nandurbar) have been (re)converted from Christianity to Hinduism. A proper police bandobast was made as if the event was government’s event.
Similar, event was organized by them in Shabridham (Dangs-Gujarat) on October 6, 2009, where 5000 tribal were (re)converted from Christianity to Hinduism.15

This Sampraday runs reconversion movement across the tribal regions of Maharashtra and Gujarat. Each year the Sampraday organizes 10 mass reconversion events in Gujarat. The official website of Narendracharya www.nanijdham.org opens with a claim of reconversion of 1 lakh 205 persons to Hinduism. He is also popular for his blasphemous writings against minority religions (Mainly Muslims and Christians) such as ‘Hindu Khatre Me Hai’ [Hindus are under threat] and ‘Jaga Ho Hindu Bandhawa’ [wake up Hindu brothers] and also publishes a newsletter called Narendra Gatha to propagate his ideology. [See December 2009 special issue on (re)conversion].

In both of the cases, permission from AJ Shah, DM (Surat) was not sought by the organizers and nor was any intimation given under FRA by any of the 1,747 converts. Even the police who were present at the venue of the event did not tell about this mass conversion event organized by Shree Sampraday to the DM. As per the law, Narendracharya, Yashwant More, ten priests, 1747 converts and participating sadhu sants and others are liable to punishment for not seeking permission and not intimating the DM about the conversion respectively. But like earlier occasions no action has been called for. And on the other hand the Sampraday is planning such event in Vadodara-Gujarat.

The above case studies from the state of Gujarat clearly establishes the fact that it is one more tool in the hands of right wing political parties who wish to orchestrate the clash of identities and to use religion for vested interests and to persecute individuals on ground of their religion or belief.

1. E/CN.4/1997/91, Para 99
2. Gujarat Bill: Denying Religious Freedom in Freedom’s Name, Sikand Yogindra, Countercurrents- 21.09.2006
3. (ACLJ) American Center for Law and Justice; Religious freedom Acts: Anti-Conversion Law in India, June 26, 2009
4. http://www.holyspiritinteractive.net/columns/guests/benedictrogers/untouchables.asp
5. Rev. Stanislaus vs. State of Madhya Pradesh [(1977) SCC 677]
6. Report of the special rapporteur on freedom of religion or belief, Asma Jahagir, Mission to India – http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G09/104/62/PDF/G0910462.pdf?OpenElement
7. Section 3 of GFRA
8. Section 4 of GFRA
9. Section 5 (1) of GFRA
10. Rule 4 of GFR Rules 2008
11. Section 5 (2) of GFRA
12. Rule 5 (1) GFR Rules 2008
13. Section 6 of GFRA
14. Report of the special rapporteur on freedom of religion or belief, Asma Jahagir, Mission to India – http://daccess-dds-ny.un.org/doc/UNDOC/GEN/G09/104/62/PDF/G0910462.pdf?OpenElement
15. http://www.nanijdham.org/en_1/Pg_display.php?mpg=7&Pg=C38