While the BJP government in Himachal Pradesh came into force a law last week requiring a person to give prior notice to authorities for converting to another religion and prohibiting conversions solely by marriage, in 2012 the state Superior Court struck down similar provisions in an earlier version presented by the then government of Congress as unconstitutional and violation of fundamental rights.
Various provisions of the Himachal Pradesh Freedom of Religion Act, 2019, have been emulated almost word for word by Uttar Pradesh in the anti-conversion law it passed last month, and which is being considered as an example by other states governed by the BJP. .
Article 7 of the Himachal Law requires a person to submit a “declaration” of intention to convert freely and without coercion from one religion to another to the district judge. The provision also requires that the priest or religious figure presiding over the conversion notify the DM one month in advance.
On August 30, 2012, a two-judge High Court annulled the Himachal Pradesh Freedom of Religion Act of 2006, passed during the then congressional regime, which contained exactly the same provision, considering it “ultra vires the Constitution of India. “Neither the government of BJP Himachal in 2012 nor the individuals involved in the process had challenged the High Court decision.
“Why should a human being be asked to reveal what his religion is?” “Why should a human being be asked to report to the authorities that he is changing his belief?” – said the court composed of the then president of the High Court, Deepak Gupta, and judge Rajiv Sharma.
The court had also cited a person’s fundamental right to privacy to repeal provisions requiring prior notification to the authorities for conversion, even when it acknowledged that various Supreme Court rulings had confirmed the validity of anti-conversion laws, such as as established by the Constitution. for “public order” as a reason to restrict freedom of religion.
A violation of the above provision under the new Himachal law can result in a jail term of three months to one year for the person in the process of conversion and six months to two years for the priest, respectively. The offense is non-bail and recognizable, which means that bail can only be granted at the discretion of a magistrate and not as a matter of law, and that the police can search or arrest a person and initiate an investigation on your own without a court order.
Like Uttar Pradesh’s Illegal Religious Conversion Prohibition Ordinance passed last month, the Himachal law of 2019 specifically prohibits conversion by marriage, even if a person testifies to having done so voluntarily, except where prior sanction has been obtained. Section 5 of the Himachal law and section 3 of the Uttar Pradesh law, which state that “marriages for the sole purpose of conversion” will be null and void, are worded in exactly the same way.
The Himachal law of 2006 had been limited to forced religious conversions and did not refer to conversions for marriage.
While borrowing provisions such as “marriage for the sole purpose of conversion”, the UP law goes beyond the Himachal Law by shifting the burden of proof regarding the conversion of the convert to his spouse; prescribe different prison sentences according to gender; and legitimize the interference of the State and third parties in the choice of whom an individual wishes to marry.
According to section 12 of the Himachal Act 2019, the burden of proving whether a religious conversion was made by misrepresentation, force, coercion, undue influence, inducement or any other fraudulent means or “by marriage” falls on the person who converts or those who facilitate.
The UP law also prescribes an investigation by a magistrate to sanction a conversion, while the Himachal law only requires the submission of a notification.
Himachal Pradesh’s new anti-conversion law was enacted in August last year, repealing the 2006 Law. In Section 2 (J), it refers to conversion as “purification sanskar (purification ritual)”, and defines to a religious priest for the purposes of the law as a person who performs conversion. The law was notified only last week.
The 2006 law had been challenged by the Evangelical Community of India and ANHAD, a non-profit organization run by activist Shabnam Hashmi. The Sanatan Dharam Sabha, Mahant Ram Mohan Das of the Brahmin Sabha, Shimla and the BJP leader Subramanian Swamy had intervened in the process, upholding the law.
.
