GS Paper: GS1-10.Social empowerment, communalism, regionalism & secularism.

Amid opposition, the Karnataka Protection of Right to Freedom of Religion Bill, 2021, was introduced in the Assembly.

What is the Bill about?

• The Bill envisages stringent provisions for forced or induced conversions.
• The government wants to prohibit conversion by:

1. Misrepresentation
2. Force
3. Allurement
4. Fraudulent means
5. Marriage
6. Coercion and undue influence

Key features of the Bill

(1) Filing of Complaints

• Complaints of conversions can be filed by family members of a person who is getting converted, or any other person who is related to the person who is getting converted, or any person associated with the person getting converted.

(2) Punishment and fines

• The offense of conversion is cognisable and non-bailable and will attract a jail term of three to five years and a fine of ₹25,000 for people found violating the law.
• There is a jail term of three to 10 years, and a fine of ₹50,000 for people converting minors, women and persons from the SC and ST communities.
• The Bill also envisages a compensation of ₹5 lakh to victims of forced conversions.

Do you know?

Odisha was the first State to enact anti-conversion legislation, the Orissa Freedom of Religion Act, 1967. Madhya Pradesh enacted the same the following year.

What about willful conversion?

• Prior information: After the law comes into force, any person intending to convert to another religion will have to inform the district magistrate at least thirty days in advance.
• Due inquiry of purpose: The person executing the conversion must also give a notice one month in advance, following which an inquiry will be conducted by the district magistrate through the police to establish the real intent of conversion.
• Defying the conversion: Not informing the district magistrate will lead to the conversion being declared null and void.

Impact of non-conformance

• Not informing authorities will carry a prison term of six months to three years for persons who are converted and one year to five years for the persons carrying out the conversions.
• After getting converted, the person has to again inform the district magistrate within 30 days after conversion and must appear before the district magistrate to confirm his/her identity.

What happens once the Conversion is held valid?

• Post conversion, the district magistrate has to inform revenue authorities, the social welfare, minority, backward classes and other departments of the conversion.
• These authorities will, in turn, take steps with respect to the entitlements of the person in terms of reservations and other benefits.

How many states have enacted the legislation?

• Arunachal Pradesh, Chhattisgarh, Gujarat, Himachal Pradesh, Jharkhand, Madhya Pradesh, Odisha, Uttar Pradesh and Uttarakhand have laws restricting religious conversion.
• Penalties for breaching the laws can range from monetary fines to imprisonment, with punishments ranging from one to three years of imprisonment and fines from ₹5,000 to ₹50,000.
• Some of the laws provide for stiffer penalties if women, children, or members of Scheduled Castes or Scheduled Tribes (SC/ST) are being converted.
• Some other States, including Manipur, are reportedly “considering similar laws.”

How has Parliament handled anti-conversion bills?

After independence, Parliament introduced a number of anti-conversion bills which were not enacted for want of majority approval.

• In post-Independent India, the first Indian Conversion (Regulation and Registration) Bill, 1954, which sought to enforce “licensing of missionaries and the registration of conversion.”
• This was followed by the introduction of the Backward Communities (Religious Protection) Bill, 1960, “which aimed at checking conversion of Hindus to ‘non-Indian religions’ .
• Non-India religions included Islam, Christianity, Judaism and Zoroastrianism,.
• The Freedom of Religion Bill in 1979, which sought “official curbs on inter-religious conversion.”

Religious conversion: A Constitutionality check

• Indian Constitution aspires toward tolerance of all religions and guaranteed that each person was “equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion” (Article 25).
• This formulation did not come without dispute; the word “propagate” was one of the most contested in the whole of Indian Constitution.

Core issue: Prevalence of Inter-faith Marriage

• India has the Special Marriage Act, 1954, which can be used by inter-faith/inter-community couples to get married.
• The Act, however, requires an advance notice of 30 days to the magistrate before a couple is able to register their marriage.
• When the parties are from different faiths, communities or castes, such a public notice can be, and has been, a great source of danger and harm from their family/community members.
• Consequently, the only option exercised by the inter-faith couples is for one of them to convert to the religion of the other and get married.

Issues with such laws

The anti-conversion laws have been challenged on the ground that innocent persons were being booked under these Acts.

• Patriarchal dominance: It is widely presumed that such conversions involve ‘coercion’ or ‘deceit’, and hence, Hindu women ought to be ‘protected’ from the danger of conversion.
• Targeting minorities: These laws target Muslims and quoted instances of such inter-faith couples having been harassed by militant activists and state government authorities.
• Freedom of Conscience: Women, it is clear, are being treated in a paternalistic way which assumes that they need protection at the cost of their right to make reasoned decisions about changing faith or choosing a friend or life partner.

What about Incentivised Conversions?

• There are many cases of incentivized conversions for the poor sections of society in exchange for a dignified social life.

For them, the solution lies in addressing the root issues:

1. Ending discrimination
2. Providing high quality and free education to the poor and disenfranchised
3. Improving access and quality of free health facilities and medicines
4. Improving nourishment and
5. Providing adequate employment opportunities to all

Conclusion

• Clearly, anti-conversion laws amount to discrimination and a violation of the right to equality.
• However, inter-faith marriages should not be pre-conditioned with religious conversion. This certainly raises concerns for the majority of society.
• Instead of pursuing this disastrous course, the government could work towards removing impediments to inter-faith marriages and eradicating the social stigma attached to such marriages.
• The couples who wish to enter into an inter-faith alliance are enabled and protected.

 

UPSC 2022 countdown has begun! Get your personal guidance plan now! (Click here)

The Gujarat High Court this week stayed key provisions of The Gujarat Freedom of Religion (Amendment) Act, 2021 pertaining to marriages involving religious conversion of either of the two parties.

What is the Anti-Conversion Law?

• The legislation has amended the 2003 Gujarat Freedom of Religion Act.
• The amendment was brought in line with several similar laws enacted last year by right-wing-ruled states, starting with Uttar Pradesh.
• The laws seek to end conversion through unlawful means, specifically prohibit any conversion for marriage, even if it is with the consent of the individual except when a prior sanction is obtained from the state.
• Apart from UP and Gujarat, Madhya Pradesh and Himachal Pradesh too, have also enacted similar laws.

Controversial provisions

• Vagueness: It gives powers to the state to conduct a police inquiry to verify the intentions of the parties to convert for the purposes of marriage.
• Burden of proof: Section 6A reverses the burden of proof on the partner of the converted spouse to prove that he/she did not coerce the other spouse.
• Intent of marriage: Section 4 allows the aggrieved person, their parents, brother, sister, or any other person related by blood or marriage or adoption to file an FIR challenging the conversion and subsequent marriage.
• Conversion as Allurement: The law considers lawful conversions as “allurement” in vague.
• Discrimination: It defines over-broad terms; prescribes different jail terms based on gender; and legitimizes the intrusion of family and the society at large to oppose inter-faith marriages.

Issues with such laws

• Stereotyping of lawful conversion: The new anti-conversion laws shift the burden of proof of a lawful religious conversion from the converted to his/her partner.
• Curb on individual freedom: Legal experts have pointed out that the laws interfere in an individual’s agency to marry a partner from different faith and to choose to convert from one’s religion for that purpose.
• Interference of state: Apart from being vague and sweeping, the laws also test the limits to which the state can interfere in the personal affairs of individuals.
• Violative of FRs: The freedom to propagate one’s religion (A25) and the right to choose a partner are fundamental rights (A21) that the new anti-conversion laws impinge upon.

What has the Gujarat High Court held?

• A Division Bench of the Gujarat High Court has granted an interim stay on certain provisions of the amendment that interfere with inter-faith marriages.
• It has held that the bill interferes with the intricacies of marriage including the right to the choice of an individual, thereby infringing Article 21.
• The interim stay on certain provisions will have to be confirmed when the larger challenge is decided.

What was the government’s defence?

• The state government had argued that the law did not prohibit all inter-faith marriages, but only the ones based on fraud and coercion.
• To buttress its submission, Advocate General had argued that the Act must be read as a whole to interpret the provision, and the provision alone could not be read by itself.
• However, the court said that the wider interpretation would happen at a later stage, and stayed the provisions for the time being. A larger challenge would determine the fate of the law eventually.

Significance of the ruling

• The HC ruling, although preliminary, comes as a relief to interfaith couples from being harassed.
• The reading could have a bearing on challenges pending in other HCs (namely in MP, UP, Himachal etc).
• However, its real impact on the ground could be limited, as larger constitutional nuances are often difficult to permeate, especially when it is not a final and binding verdict.

UPSC 2022 countdown has begun! Get your personal guidance plan now!

---

 

Favouring the introduction of the Uniform Civil Code (UCC), the Delhi High Court has said the Indian youth need not be forced to struggle with issues arising due to conflicts in various personal laws in relation to marriage and divorce.

Why did the HC promote this idea?

• The modern Indian society was gradually becoming homogenous, the traditional barriers of religion, community and caste are slowly dissipating said the Delhi HC.
• The youth of India is often forced to struggle with issues arising due to conflicts in various personal laws, especially in relation to marriage and divorce.

Shah Bano reference

• In the Shah Bano case, the apex court had said that a common civil code would help the cause of national integration by removing disparate loyalties to laws having conflicting ideologies.
• It had also observed that the State was charged with the duty of securing UCC for the citizens of the country.

What is a Uniform Civil Code?

• A UCC is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.
• Article 44, one of the directive principles of the Constitution lays down that the state shall endeavour to secure a UCC for the citizens throughout the territory of India.
• These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.

Why need UCC?

• UCC would provide equal status to all citizens
• It would promote gender parity in Indian society.
• UCC would accommodate the aspirations of the young population who imbibe liberal ideology.
• Its implementation would thus support the national integration.

Issues with UCC

• There are practical difficulties due to religious and cultural diversity in India.
• The UCC is often perceived by the minorities as an encroachment on religious freedom.
• It is often regarded as interference of the state in personal matters of the minorities.
• Experts often argue that the time is not ripe for Indian society to embrace such UCC.

A series of regulations proposed by the Lakshadweep administrator has caused widespread resentment and fear among its residents.

What are the new regulations?

[1] Cow slaughter & beef

• An order from the Administration seeks to ban the slaughter of cow, calf, bull, and buffalo without a certificate from a competent authority.
• It prohibits the sale, transport, and storage of beef and beef products. Penalties include a jail term of up to one year and a fine of Rs 10,000.
• The Administration has not provided an explanation on why the rule was brought in.
• Residents view the rule as a direct infringement on their culture and eating habits. They allege the rule was decided without consultation with local bodies.

[2] Two-child policy

• Under the Draft Panchayat Regulation 2021, the Administration aims to bar people with more than two children from becoming a member of the gram panchayat.
• For those who already have more than two children, the regulation does not disqualify them provided they do not have further children after the date on which the rule comes into effect.

[3] Serving liquor to tourists

• The Administration has decided to allow liquor to be served at resorts on inhabited islands.
• Currently, prohibition is in place on all inhabited islands, with liquor served only at resorts on the uninhabited Bangaram Island.
• The Dist Collector clarified that liquor permits would be given only to resorts for tourists, not for locals.
• Residents have alleged that the move will lead to a proliferation of liquor sales on the island, which had been observing near-prohibition until now.

[4] Land acquisition powers

• The Administration brought in a draft Lakshadweep Development Authority Regulation (LDAR) to oversee the development of towns on the islands, with sweeping changes in the way land can be acquired and utilized.
• It talks of the declaration of ‘planning areas’ and constitution of ‘planning and development authorities’ for preparing a land-use map and register, ostensibly for large projects.
• Residents have protested against the way it was prepared and pushed through without consultation.
• They fear large infrastructure and tourism projects can destabilize the ecology, and that the notification gives powers to the Administration to remove small landholdings of ST residents.

[5] Anti-social activities regulation

• The draft Lakshadweep Prevention of Anti-Social Activities Regulation provides for powers to detain a person for up to one year to prevent him from “acting in any manner prejudicial to the maintenance of public order”.
• It allows for detention for anti-social activities from six months to a year without legal representation.
• The Collector said while the island remains peaceful, there have been reports of drugs being found along with weapons and live ammunition.
• He said the regulation is required to keep the “youth from getting misguided by illegal businesses”.
• Residents are skeptical of the need for such stringent law in a UT with one of the lowest crime rates in the country. They allege it has been brought in to arrest those opposed to the Administration.

---

Back2Basics: Lakshadweep Islands

• There are 36 islands across 12 atolls, closest to Kerala, on which it depends for essential supplies. Only 10 of the islands are inhabited.
• Once a part of the Malabar district of the Madras Presidency, Lakshadweep was given Union Territory status following Kerala state’s formation in 1956.
• With a population of 65,000 (2011 Census), Lakshadweep is India’s smallest Union Territory.
• It has the highest population share of Muslims (96%) and Scheduled Tribes (94.8%) among the UTs.
• Residents speak Malayalam and Dhivehi.

The Supreme Court has said people are free to choose their own religion and lashed out at a PIL claiming that there is mass religious conversion happening across the country.

Right to freedom of Religion

Article 25 of the Constitution guarantees freedom of religion to all persons in India. It provides that all persons in India, subject to public order, morality, health, and other provisions:

• Are equally entitled to freedom of conscience, and
• Have the right to freely profess, practice and propagate religion.

It further provides that this article shall not affect any existing law and shall not prevent the state from making any law relating to:

• Regulation or restriction of any economic, financial, political, or secular activity associated with religious practice.
• Providing social welfare and reform.
• Opening of Hindu religious institutions of public character for all the classes and sections of the Hindus.

What did the Supreme Court say?

• Instead, a Bench led by Justice Rohinton F. Nariman said people have a right under the Constitution to profess, practise and propagate religion.
• Justice Nariman said every person is the final judge of their own choice of religion or who their life partner should be. Courts cannot sit in judgment of a person’s choice of religion or a life partner.
• Religious faith is a part of the fundamental right to privacy.
• Justice Nariman reminded Mr Upadhyay of the Constitution Bench judgment which upheld inviolability of the right to privacy, equating it with the rights to life, dignity and liberty.

The Chief Justice of India (CJI) has lauded Goa’s Uniform Civil Code and encouraged “intellectuals” indulging in “academic talk” to visit the state to learn more about it.

Again a controversial, conventional yet contested topic has come at our dispense! Save such articles for general idea esp. for essays.

What is a Uniform Civil Code?

• A Uniform Civil Code is one that would provide for one law for the entire country, applicable to all religious communities in their personal matters such as marriage, divorce, inheritance, adoption etc.
• Article 44, one of the directive principles of the Constitution lays down that the state shall endeavour to secure a Uniform Civil Code for the citizens throughout the territory of India.
• These, as defined in Article 37, are not justiciable (not enforceable by any court) but the principles laid down therein are fundamental in governance.

Greater role for State

• Fundamental rights are enforceable in a court of law.
• While Article 44 uses the words “the state shall endeavour”, other Articles in the ‘Directive Principles’ chapter use words such as “in particular strive”; “shall, in particular, direct its policy”; “shall be the obligation of the state” etc.
• Article 43 mentions “state shall endeavour by suitable legislation” while the phrase “by suitable legislation” is absent in Article 44.
• All this implies that the duty of the state is greater in other directive principles than in Article 44.

What are more important — fundamental rights or directive principles?

• There is no doubt that fundamental rights are more important.
• The Supreme Court held in Minerva Mills (1980): Indian Constitution is founded on the bedrock of the balance between Parts III (Fundamental Rights) and IV (Directive Principles).
• To give absolute primacy to one over the other is to disturb the harmony of the Constitution.
• Article 31C inserted by the 42nd Amendment in 1976, however, lays down that if a law is made to implement any directive principle, it cannot be challenged on the ground of being violative of the FRs under Articles 14 and 19.

Does India not already have a uniform code in civil matters?

• Indian laws do follow a uniform code in most civil matters – Indian Contract Act, Civil Procedure Code, Sale of Goods Act, Transfer of Property Act, Partnership Act, Evidence Act etc.
• States, however, have made hundreds of amendments and therefore in certain matters, there is diversity even under these secular civil laws.
• Recently, several states refused to be governed by the uniform Motor Vehicles Act, 2019.

What about personal laws?

• If the framers of the Constitution had intended to have a Uniform Civil Code, they would have given exclusive jurisdiction to Parliament in respect of personal laws, by including this subject in the Union List.
• But “personal laws” are mentioned in the Concurrent List.
• Last year, the Law Commission concluded that a Uniform Civil Code is neither feasible nor desirable.

Is there one common personal law for any religious community governing all its members?

• All Hindus of the country are not governed by one law, nor are all Muslims or all Christians.
• Not only British legal traditions, even those of the Portuguese and the French remain operative in some parts.
• In Jammu and Kashmir until August 5, 2019, local Hindu law statutes differed from central enactments.
• The Shariat Act of 1937 was extended to J&K a few years ago but has now been repealed.

Various customary laws

• Muslims of Kashmir were governed by a customary law, which in many ways was at variance with Muslim Personal Law in the rest of the country and was, in fact, closer to Hindu law.
• Even on the registration of marriage among Muslims, laws differ from place to place. It was compulsory in J&K (1981 Act), and is optional in Bengal, Bihar (both under 1876 Act), Assam (1935 Act) and Odisha (1949 Act).
• In the Northeast, there are more than 200 tribes with their own varied customary laws.
• The Constitution itself protects local customs in Nagaland. Similar protections are enjoyed by Meghalaya and Mizoram.
• Even reformed Hindu law, in spite of codification, protects customary practices.

How does the idea of a Uniform Civil Code relate to the fundamental right to religion?

• Article 25 lays down an individual’s fundamental right to religion;
• Article 26(b) upholds the right of each religious denomination or any section thereof to “manage its own affairs in matters of religion”;
• Article 29 defines the right to conserve distinctive culture.
• An individual’s freedom of religion under Article 25 is subject to “public order, health, morality” and other provisions relating to FRs, but a group’s freedom under Article 26 has not been subjected to other fundamental rights
• In the Constituent Assembly, there was division on the issue of putting UCC in the fundamental rights chapter. The matter was settled by a vote.
• By a 5:4 majority, the fundamental rights sub-committee headed by Sardar Patel held that the provision was outside the scope of FRs and therefore the UCC was made less important than freedom of religion.

Minority opinion in the Constituent Assembly

• Some members sought to immunize Muslim Personal Law from state regulation.
• Mohammed Ismail, who thrice tried unsuccessfully to get Muslim Personal Law exempted from Article 44, said a secular state should not interfere with the personal law of people.
• B Pocker Saheb said he had received representations against a common civil code from various organisations, including Hindu organisations.
• Hussain Imam questioned whether there could ever be uniformity of personal laws in a diverse country like India.
• B R Ambedkar said, “no government can use its provisions in a way that would force the Muslims to revolt”.
• Alladi Krishnaswami, who was in favour of a UCC, conceded that it would be unwise to enact UCC ignoring strong opposition from any community.
• Gender justice was never discussed in these debates.

How did the debate on a common code for Hindus play out?

• In June 1948, Rajendra Prasad, President of the Constituent Assembly, warned Nehru that to introduce “basic changes” in personal law was to impose “progressive ideas” of a “microscopic minority” on the Hindu community as a whole.
• Others opposed to reforms in Hindu law included Sardar Patel, Pattabhi Sitaramayya, M A Ayyangar, M M Malaviya and Kailash Nath Katju.
• When the debate on the Hindu Code Bill took place in December 1949, 23 of 28 speakers opposed it.
• On September 15, 1951, President Prasad threatened to use his powers of returning the Bill to Parliament or vetoing it. Ambedkar eventually had to resign.
• Nehru agreed to trifurcation of the Code into separate Acts and diluted several provisions.

The Supreme Court has asked the Centre to respond to a plea challenging the Places of Worship (Special Provisions) Act, 1991. The court has opened the doors for litigation in various places of worship across the country including Mathura and Varanasi.

Take this ‘wonderful’ question from CS Mains 2019:

Q.What are the challenges to our cultural practices in the name of secularism?

Places of Worship Act, 1991

• It was passed in 1991 by the P V Narasimha Rao-led government.
• The law seeks to maintain the “religious character” of places of worship as it was in 1947 — except in the case of the Ram Janmabhoomi-Babri Masjid dispute, which was already in court.
• The law was brought in at the peak of the Ram Mandir movement, exactly a year before the demolition of the Babri Masjid.
• Introducing the law, then Home Minister S B Chavan said in Parliament that it was adopted to curb communal tension.

What are its provisions?

The objective of the law describes it as an Act to prohibit conversion of any place of worship.

• It aims to provide for the maintenance of the religious character of any place of worship as it existed on the 15th day of August 1947, and for matters connected therewith or incidental thereto”.
• Sections 3 and 4 of the Act declared that the religious character of a place of worship shall continue to be the same as it was on August 15, 1947.
• No person shall convert any place of worship of any religious denomination into one of a different denomination or section.
• Section 4(2) says that all suits, appeals or others regarding converting the character of a place of worship, that was pending on August 15, 1947, will stand abated when the Act commences and no fresh proceedings can be filed.
• However, legal proceedings can be initiated after the commencement of the Act if the change of status took place after the cut-off date of August 15, 1947.

What does it say about Ayodhya, and what else is exempted?

• Act does not to apply to Ram Janma Bhumi Babri Masjid.

Besides the Ayodhya dispute, the Act also exempted:

• any place of worship that is an ancient and historical monument or an archaeological site, or is covered by the Ancient Monuments and Archaeological Sites and Remains Act, 1958;
• a suit that has been finally settled or disposed of;
• any dispute that has been settled by the parties or conversion of any place that took place by acquiescence before the Act commenced.

What has the Supreme Court said about the Act?

• In the 2019 Ayodhya verdict, the Constitution Bench led by former CJI Ranjan Gogoi referred to the law and said it manifests the secular values of the Constitution and strictly prohibits retrogression.
• In providing a guarantee for the preservation of the religious character of places, Parliament determined that independence from colonial rule furnishes a constitutional basis for healing the injustices of the past.
• The law addresses itself to the State as much as to every citizen of the nation. Its norms bind those who govern the affairs of the nation at every level.
• Those norms implement the Fundamental Duties under Article 51A and are hence positive mandates to every citizen as well.

Why is the law under challenge?

• A politician has challenged the law on the ground that violates secularism.
• He has also argued that the cut-off date of August 15, 1947, is “arbitrary, irrational and retrospective” and prohibits Hindus, Jains, Buddhists, and Sikhs from approaching courts to “reclaim” their places of worship.
• Such places, he argued, were “invaded” and “encroached” upon by “fundamentalist barbaric invaders”.
• The right-wing politicians have opposed the law even when it was introduced, arguing that the Centre has no power to legislate on “pilgrimages” or “burial grounds” which is under the state list.
• Another criticism against the law is that the cut-off is the date of Independence, which means that the status quo determined by a colonial power is considered final.