Karnataka Protection of Right to Freedom of Religious Bill is Unconstitutional

The rationale for the law is really not the protection of ‘public order’, but the targeting of minority communities right to faith as well as the individual’s right to love.

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The  ironically titled, Karnataka Protection of Right to Freedom of Religion Bill, 2021 is rife with unconstitutional implications. The Bill is not meant to protect the freedom of religion but rather to  limit it in a way not contemplated by the drafters of the Indian Constitution. The Bill seeks to criminalize conversions which are done by ‘misrepresentation, force, fraud, undue influence, coercion, allurement  and promise of marriage’.

While a reader of the bill may well ask as to that is the problem in prohibiting conversion by  the use of coercion, allurement  or fraud, the devil is really in the details.  To illustrate this let us take the definition of allurement which is the single most problematic definition in a statute filled with problematic definitions.

What is “Allurement”?

Allurement  is defined very broadly to include the offer of  ‘gifts or gratification in cash or kind’ as well as ‘employment or free education.’ One can easily see how philanthropic activities be it the running of schools or  hospitals can easily be tarred as criminal activities being done for the purpose of conversion.  This definition only legitimizes the illegal actions by the right wing such as the recent shocking incidents of right wing forces making a forcible entry into Christian run schools and disrupting Christmas celebrations alleging conversion. What till yesterday was a wild allegation made by vigilante elements , under this law will be backed by the power of the state as the Bill states that in legal terms the  burden of proof will be on the ‘person who causes the conversion’.  In simple terms what that means is that the person who intrudes into a school alleging conversion has to be believed and the police will have to register an FIR.  During the trial, the person against whom the charge of conversion by allurement is alleged will have to prove that he or she did not do any conversion. This reversal of the burden of proof , goes against the fundamental tenet of criminal law that a person is innocent until proven guilty.  This reversal of the burden of proof combined with the broad definition of ‘allurement’, makes every Christian institution offering services be it hospitals, schools or social service organisations vulnerable to false charges and harassment.

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Freedom of Religion Bill is an Instrument of Hindu Rashtra

The Bill  demeans women and SC/ST persons by stating that there will be a higher punishment for conversions by ‘force, fraud, allurement or inducement’  if the convertee is a ‘woman, SC/ST person, minor or of unsound mind. The understanding of the framers of the Bill seems to be that women and SC/ST persons are not persons who have a mind of their own and are on the same footing as minors and those of unsound mind!

Right to Convert

The Bill does not stop with targeting conversion by ‘allurement, force and fraud’ but goes on to restrict the right to convert itself. Under Section 8,  the one who desires to convert as well as the one performing the conversion must submit a form to the District Magistrate thirty days in advance. The District Magistrate will then notify the proposed conversion on the notice board of the office of the Tashildar calling for ‘objections’, and there are objections he will then do an inquiry with regard to ‘genuine intention, purpose and cause’ of the conversion’. The  police are then empowered to take action based on the finding by the Tashildar.

The requirement of notice for conversion is itself a violation of the constitutionally recognized right to privacy which was laid down by nine judges of the Supreme Court in  Puttaswamy v Union of India.  The Supreme Court held that, ‘privacy is the ultimate expression of the sanctity of the individual. It is a constitutional value which straddles across the spectrum of fundamental rights and protects for the individual a zone of choice and self-determination.’

The Court went on to hold that

 Read in conjunction with Article 21, liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and self-determination require a choice to be made within the privacy of the mind.

In 2018, the Supreme Court in Shafin Jahan vs Asokan K.M,  has also recognized matters of faith as intrinsic to the  right to personal liberty and held that “the Constitution guarantees individuals to take decisions on matters central to their pursuit of happiness. Matters of belief and faith, including whether to believe are at the core of constitutional liberty.’

The issue of conversion is a matter of personal faith, conviction and conscience and the imposing of stringent conditionalities and requirements to undergo conversion only renders the protection of Article 25 to the right to freely profess, practice and propagate religion nugatory.

Target Inter-Religious Marriages

The Bill also particularly targets love marriages, especially if they are across lines of religion by criminalising conversion with the ‘promise of marriage’. The Bill by not only   criminalising  forcible, fraudulent conversions  but also conversion with the ‘promise of marriage’, violates a core aspect of the constitution, namely the right to marry the person of one’s choice and have the faith of one’s choice. Both are personal choices protected by the constitution and the state has no right to criminalise inter-religious marriage.

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In another dangerous blow at individual rights, the Bill empowers ‘parents, brother, sister or colleague’ to file a complaint that the conversion is illegal as per the Bill. When the illegal conversion is nothing other than a conversion which happens either preceding or following a marriage, one is in effect empowering family and vigilante elements to file an FIR.

This is violative of the constitutional recognition of the sanctity of individual choices. In Shafin Jahan v Asokan the Supreme Court asserted the freedom of choice of the individual over ‘social approval’. ‘Neither the state nor the law can dictate a choice of partners’ as  this forms, the essence of personal liberty under the Constitution’. In a ringing assertion of individual rights J. Chandrachud held that, ‘Our choices are respected because they are ours. Social approval for intimate personal decisions is not the basis for recognising them. Indeed, the Constitution protects personal liberty from disapproving audiences.’

There is no documentation produced by the Government which can substantiate its claim that the law is required to protect ‘public order’. The rationale for the law is really not the protection of ‘public order’, but the targeting of minority communities right to faith as well as the individual’s right to love. This Bill must be resisted by all who believe in the sanctity of the constitutional promise of the freedom of religion and the right to love.

The writer is a Bangalore Based lawyer and works at Alternative law Forum.

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