Bengaluru: Karnataka’s new law against conversions criminalises key dimensions of what it is to be human—the impulse to charity, the freedom to love and the freedom to choose a faith of one’s choice—in a manner that undermines or freely violates rights afforded to every Indian citizen.
Some of the features of The Karnataka Protection of Right to Freedom of Religion Ordinance, 2022, promulgated—in an extraordinary move supposedly reserved only for emergencies—by the governor of Karnataka are:
–It criminalises marriage for love and acts of charity, including running schools, hospitals or vocational centres merely on allegations of conversion by relatives or colleagues.
– It only allows a citizen to change religion after threading a maze of bureaucratic and police procedures, before and after conversion.
– It goes against a fundamental tenet of criminal law, reversing the burden of proof from the accuser to the accused, with offences non-bailable and jail terms up to 10 years.
The ordinance has now become law and will remain so until a bill of the same name cleared by the Karnataka assembly in December 2021 is passed in its next session by the legislative council, where the government is one vote short of a majority.
As per the constitutional provision Article 213, which empowers the governor to promulgate an ordinance, the “Governor should be satisfied that circumstances exist which render it necessary for him to take immediate action”.
There is nothing in the public domain that indicates any circumstances necessitating immediate action, apart from vague allegations made by some legislators and ministers of Karnataka's ruling Bharatiya Janata Party (BJP).
If the ordinance was meant to tackle so called “illegal conversions”, there were no reports of any such conversions that required an ordinance to be promulgated.
The exercise of this power by the government ignores widely documented attacks on churches and places of worship, which were carried out by Hindu extremist groups in Karnataka, most towards the end of 2021 as the government talked up the anti-conversion law, as Article 14 reported.
As many as 62 hate crimes against Christians in Karnataka by such Hindu groups, using the bogey of conversion to attack Article 25—the right to “profess, practice and propagate one’s faith”—were recorded by the People’s Union for Civil Liberties (PUCL), an advocacy group, in a December 2021 report called Criminalising the Practice of Faith.
The passing of the ordinance will only legitimise the excesses of vigilantes by providing legal cover for increasingly lawless, coercive and threatening actions of Hindu extremist groups.
Karnataka’s Law Stricter Than UP’s
Karnataka’s new law is the sixth such anti-conversion legislation to be passed in India in BJP-run states since Narendra Modi became Prime Minister in 2014.
As newer versions of the by now modular anti-conversion law are passed, the scope of criminalisation is expanded by tinkering with the language of the law. If the Karnataka ordinance of 2022 is compared to the UP ordinance of 2020, this fact is evident.
While the Uttar Pradesh (UP) anti-conversion law criminalises conversion by marriage, the Karnataka ordinance criminalises conversion by the promise of marriage.
While in the UP law only those aggrieved and family members can complain, the Karnataka ordinance expands it to include those “associated” with the person converted, including “colleagues”.
As far as the UP law is concerned, once the factum of conversion is recorded, the law proposes no further regulation. But the Karnataka ordinance mandates that the factum of conversion should be communicated to “appropriate authorities”, which include the employer of the converted person.
How Acts Of Charity Have Been Criminalised
The first important point to make about the new law is its targeting of the act of charity.
This is done through the criminalisation of what the ordinance calls conversion by “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”.
Philanthropic activities, such as the running of schools or vocational centres, can be classified as criminal activities being done for the purpose of religious conversion.
It is not beyond the realms of possibility to think that those who do not get the benefit of scholarship or those who are disgruntled with the running of educational institutions will use this provision to harass those who run charitable institutions.
It is not just the person who has converted to another religion but “his parents, brother, sister or any other person who is related to him by blood, marriage or adoption or in any form associated or colleague may lodge a complaint of such Conversion”.
This empowerment of persons, including those “in any form associated” with the person converted, including “colleagues” to file a complaint is a licence for the persecution of charitable outfits and organisations by a wide range of those who want to harass minority institutions.
Reversing The Burden Of Proof
Karnataka’s new law states that the burden of proof will be on the “person who causes the conversion”.
Simply put, this means that the person who alleges “allurement” for the purpose of conversion has to be believed and the police will have to register a first information report (FIR), the starting point for criminal proceedings.
During the trial, the person against whom the charge of conversion by allurement is alleged, has the burden of proving that he or she did not do any conversion. This reversal of the burden of proof, goes against the fundamental tenet of criminal law, which says a person is innocent until proven guilty.
Indian law normally requires a person accusing someone of a crime to provide proof. Section 103 of the Indian Evidence Act 1872, says that the “burden of proof as to any particular fact lies on that person who wishes the Court to believe in its existence, unless it is provided by any law that the proof of that fact shall lie on any particular person”.
This reversal of the burden of proof combined with the broad definition of “allurement”, makes every Christian institution offering services be it schools, vocational centres, hospitals or social service organisations vulnerable to false charges and harassment.
The Criminalisation Of Inter-Faith Marriage
The new law targets love marriages, especially if they are across lines of religion by criminalising conversion with the “promise of marriage”.
The criminalisation of conversion with the “promise of marriage”, violates a core aspect of the constitution: the right to marry the person of one’s choice and have the faith of one’s choice.
The fact that complaints can be filed by family members, “colleague” and those “associated in any manner”, empowers vigilantes to target and harass those who choose to love across lines of religion. The fact that the burden of proof is reversed makes it easy to file false complaints against inter-religious lovers and difficult for those unfairly accused to establish their innocence.
This provision is violative of the constitutional recognition of the sanctity of individual choices. In Shafin Jahan vs Asokan (2018) the Supreme Court asserted the freedom of choice of the individual over “social approval” and stated that “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 further unconstitutional intrusion into the civil status of marriage, the ordinance mandates that a marriage for the “sole purpose” of “unlawful conversion”, shall be declared as “null and void by the Family Court”.
Dropping The Pretence Of Illegal Conversions
The ordinance goes on to drop the pretence that it is only concerned with illegal conversions, by going on to restrict the right to convert and be converted with bureaucratic and police regulations.
Under section 8, anyone who desires to convert and the person performing the conversion must submit a form to the district magistrate 30 days in advance. The district magistrate will then notify the proposed conversion on the notice board of the office of the tahsildar calling for “objections”.
If there are objections the tahsildar will then conduct 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 of the district magistrate.
The requirement of notice for conversion as well as the publication of the details of the person converted on the notice board of the district magistrate is itself a violation of the constitutionally recognised right to privacy, laid down by nine judges of the Supreme Court in Puttaswamy vs Union of India (2017).
Assuming that there is some determined soul who has actually made it through these various hoops and been able to actualise her constitutional right to the choice of faith, she has one more hoop to jump through.
After Conversion, More Hoops & Hurdles
After conversion, the person must submit a declaration with the following details: “particulars of the converted person, such as date of birth, permanent address… present place of residence, father’s/husband’s name, the religion to which the converted person originally belonged and the religion to which he has converted, date and place of conversion and nature of process gone through for conversion, along with a copy of an identity card or the Aadhaar card” to the district magistrate.
Those converted must appear before the district magistrate to establish identities and confirm the contents of the declaration. If no objections had been called for at the earlier stage, then objections from the public should be again called for.
If objections are received, then the district magistrate will conduct an inquiry and, if satisfied that there is veracity to the objection, he can then direct the police to initiate criminal action under section 3, a violation of which provides for imprisonment up to five years along with a fine of 25000.
If there are no objections, then the district magistrate can ‘“record the factum of declaration and confirmation in a register maintained for this purpose”.
However, in a final twist, the district magistrate will issue an official notification and “simultaneously intimate the concerned authority about such conversion”.
The “concerned authorities” include “his employer, officials of the revenue department, social welfare department, backward classes welfare department, minority welfare department and other concerned department, urban and rural local bodies, Principals or Head Masters of the Educational Institutions, etc”.
This final notification of conversion again is rife with unconstitutional possibilities.
The provisions of the ordinance make every effort to expose the act of intimate choice of faith to harassment by a wider public and de facto harassment by state officials as well.
If by conversion the person hopes that it will be a new beginning, that will not come to pass as the “factum of conversion” will be notified to “concerned authorities”, including her employer.
Where then is the constitutional right to privacy?
A Warning From Jawaharlal Nehru
The ordinance in its scope and range makes unprecedented inroads into the freedoms guaranteed to all persons under the Indian Constitution.
The Protection of Right to Freedom of Religion Ordinance 2022 is not an ordinance about so-called illegal conversions alone. In its sweep and breadth, it takes aim at a range of constitutional freedoms including the right to profess and practise one’s faith, the right to love, the right to privacy and what lies at the heart of fraternity, namely the impulse to charity.[[https://article-14.com/uploads/2022/05-May/25-Wed/Jawaharlal%20Nehru.jpg]]
If we go back in history, there is one former prime minister who warned about the dangers of an anti-conversion law. Jawaharlal Nehru in his speech in the Lok Sabha opposing the Indian Converts (Regulation and Registration) Bill, 1955, the first legislative attempt to regulate conversion, made two important points.
First, Nehru said that while “coercion and deception” when it came to conversion are undoubtedly “major evils”, it should be dealt with under existing laws rather than passing new laws as one should “avoid giving the police too much power” of “personal interference”.
Second, Nehru said a bill meant to regulate Christian missionaries should be decided by “the Christian Members of this House”. He was also prescient about how such a bill could empower vigilante elements and reminded members of the house of an incident in Gaya District in Bihar., when during the celebration of mass in a “small Christian chapel”, in a “sacred and solemn moment for the people there”, a “crowd came outside and belaboured the priest and the congregation, pulled them out and generally desecrated the Church”.
Nehru called this a “most disgraceful occurrence and absolutely against the spirit and letter of our Constitution and what India stands for”. All of the concerns raised by India’s first prime minister apply to the current Karnataka ordinance.
While the concerns raised by Nehru have been articulated by those in civil society, Modi has remained silent on the egregious violation of human rights that is the Karnataka Protection of Right to Freedom of Religion Ordinance, 2022.
(Arvind Narrain is a lawyer and the President of the PUCL-Karnataka. He is the author of the book India’s Undeclared Emergency: Constitutionalism and the Politics of Resistance.)