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Supreme Court’s Observations Give A Hope Against Mad Rush For Harsh Anti-Conversion Laws By BJP-led State Govts

Syed Khalique Ahmed | India Tomorrow

NEW DELHI—While eight states in the country have “anti-conversion” laws in force, making it extremely difficult for anyone to change his/her religion without the consent of state government, the Supreme Court’s observation on Friday(April 9) that any person above 18 years of age has a right to choose a religion of his/her choice has come as a ray of hope for many who wish to embrace a new religion, by giving up the religion of their ancestors.

The states that have anti-conversion laws, euphemistically called the freedom of religion laws, in effect are: Gujarat, Madhya Pradesh, Uttar Pradesh, Odisha, Uttarakhand, Himachal Pradesh, Jharkhand and Chhattisgarh. Two other states-Rajasthan and Tamil Nadu-also passed anti-conversion laws but they are not operative as the state governor did not give its consent to Rajasthan anti-conversion law and the law was repealed by the state government itself in case of Tamil Nadu under political pressure.

Reports say that several other state BJP governments like Haryana, Karnataka and Assam are also contemplating to bring anti-conversion laws in their respective states. While Haryana Home Minister Anil Vij has said that the government has formed a team to study the anti-conversion laws in other states to frame a law to curb religious conversions in the state, a senior Assam BJP leader recently said that Assam would also enact an anti-conversion law if the BJP returns to power again in the state.

Justice Rohinton F. Nariman, heading a three-judge bench of the apex court, though did not pass any written order on a Public Interest Petition (PIL) filed by BJP leader and lawyer Ashwini Upadhyay, seeking direction for a central anti-conversion law to check religious conversions, Justice Nariman orally observed that he did not find any reason for such a law because it interfered with individual liberty and freedom of religion granted to citizens.

 “I don’t see any reason why any person above 18 cannot choose one’s own religion or somebody else’s  religion,” he curtly told the petitioner.

Reminding Upadhyay of the fundamental right under Article 25 of the Constitution “to freely profess, practice and propagate religion”, Justice Nariman asked Upadhyay, “Why do you think there is the word ‘propagate’ in the Constitution? You have to have some meaning for that word.”

Stating that “every person is the final judge of his/her choice of religion or who their life partner should be”, Justice Nariman made it clear that courts cannot sit in judgement of a person’s choice of religion or life partner.

Justice Nariman also reminded the petitioner of the judgement of the nine-judge Constitution bench in Justice K. S. Puttaswamy (Retd.) and Anr. vs Union Of India And Ors in 2017in which the apex court has held that right to privacy is protected as intrinsic part of the right to life and personal liberty under Articles 14, 19 and 21 of the Constitution.  And this means choosing a religion of one’s own choice.

In another important observation, Justice Nariman also categorically stated that he did not agree with the five-judge verdict of the Supreme Court in Rev Stanislaus vs State of Madhya Pradesh in 1977 in which the Supreme Court held that the right to propagate did not include right to convert from one religion to another.

Justice Nariman called Upadhyay’s  PIL as “Publicity Interest Petition”.

Upadhyay, however, withdrew his petition after Justice Nariman warned him of a heavy monetary penalty if he insisted that his petition be heard.

Justice Nariman also did not allow Upadhyay to approach the Law Commission or the High court with his petition.

Though Upadhyay hailing from BJP failed to get a favourable order from the Supreme Court, his effort appears to a link in the long history of a strong bid to bring a Central legislation to prevent conversion.

There is a very important message in the observations of Justice Nariman indicating that these laws can be challenged before different high courts and the Supreme Court of India because, according to Justice Nariman, they are in contravention of the fundamental rights guaranteed in the Constitution of India and a citizen does not require consent or approval of the state government to change his/her religion.

Even before Independence, several Hindu princely states had introduced anti-conversion laws in their states in 1930s and 1940s. The princely states that brought anti-conversion laws included Kota, Bikaner, Jodhpur, Raigarh, Patna, Surguja, Udaipur, and Kalahandi between 1930 and 1946.

After India became Independent in 1947, several attempts were made to bring a central law to curb religious conversion. But the effort did not succeed owing to various reasons. The first anti-conversion Bill, called Indian Conversion (Regulation and Registration) Bill was introduced in Lok Sabha in 1954 but could not be passed. Similarly, another bill called Backward Communities (Religious Protection) Bill in 1960 was tabled in the Parliament in 1960 but fell due to lack of majority. Another attempt was made to bring a central anti-conversion law in 1979 during the Janata Party rule when Morarji Desai was the Prime Minister. The Janata party government introduced the Freedom of Religion Bill in 1979 but it also fell due to lack of support from members of Parliament.

So, what the advocate and BJP leader Ashwini Upadhyay was doing through a PIL in the Supreme Court, was another bid in the chain of previous efforts to seek a central law to curb religious conversion which is given to citizens as a fundamental right under the Constitution. But Upadhyay’s efforts failed as well. However, it is difficult to say if Upadhyay went to the Supreme Court to seek a direction for a central legislation on behalf of his party that has been in the past making demand for a central legislation in this regard.

BJP, claiming itself to be the champion of Hindus in the country, is worried about gradual conversion of Dalits and tribals to non-Hindu religions. Despite many benefits available to the Scheduled Castes and Scheduled Tribes like reservation in government jobs and admission in educational institutions, there has been a tendency among the members of these two classes to give up the religion of their ancestors and embrace other religions where they find social respect and are treated at par with other members of the society which, they feel, is denied to them in the Hindu society. In innumerable media interviews, members of SCs and STs who achieved high ranking positions in the government and politics, admitted that they were not given the same treatment by the society as was given to the members of the upper castes even after acquiring the best of education, achieving high positions and improving their financial status. That was perhaps the chief reason for many members of SCs and STs to convert their faith. This is despite the fact that they are sure to lose benefits like reservation in jobs and admission in educational institutions as these benefits are not available to non-Hindu Dalits or SCs. A petition by National Council of Dalit Christians (NCDC) is already pending in the Supreme Court, demanding reservation and other benefits be extended to Dalits who converted to Christianity. NCDC has demanded that such benefits should be “religion neutral”.

This policy of the government to give reservation benefits only to Hindu Dalits goes against secular principles of the Indian Constitution. This amounts to material “inducement” or “allurement” to such groups to continue to follow the religion of their ancestors while at the same time offer of any material “allurement” has been made a crime punishable in anti-conversion laws enacted by several state governments. So, there is dichotomy of laws; official “inducement” to ensure that Hindu Dalits continue as Hindus is held justifiable while offer of “inducement” or monetary help by any private group or organization is considered punishable.

Anti-Conversion Laws in States

As all efforts have failed to bring a central anti-conversion law, as many as 10 states have brought anti-conversion laws tiled as Freedom of Religion Law to check conversion by force, fraudulent means, allurement or inducement. They are, however, in force in only two states.

While they are titled as ‘Freedom of Religion Law’, in practice, these laws restrict religious freedom by making conversion a tougher thing.

These laws in all states are cognizable offences where a court order or warrant is not required for arrest or investigation.

These laws have imposed severe punishments including imprisonments and monetary fine for any breach of the law. Many young boys and girls belonging to different religions in many states, particularly Uttar Pradesh, have been subjected to harassment after marriage, despite the fact they are adults and allowed by the Constitution to marry any one of their own choice. Reports say that more than five dozen boys were arrested in UP after passage of anti-conversion law in the state this year. Though such couples got verdicts in their favour from courts but the fact that they had to face lot of harassment, is a matter of concern. Use of “Love Jihad” terms by the government representatives, media and vigilante groups in cases where the boy happens to be Muslim and the girl a Hindu, is adding to already existing atmosphere of hate against Muslims and it many times results into communal tension in towns and cities to which the boy and girl belong.

Orissa(now Odisha) Freedom of Religion Law, 1967

Odisha was the first state that came with an anti-conversion law titled as ‘The Orissa Freedom of Religion Act in 1967’.

It made religious conversion unlawful through “use of force” or “threat of divine displeasure” or “social ex-communication”, through “fraud” or through “inducement”, including “an offer of any gift or gratification, either in cash or in kind and converting a “minor” below 18 years of age.

The law provides imprisonment of one year or a fine of Rs. 5,000 or both in case of any unlawful conversion. The punishment would be double, that is, two years of jail and Rs. 10,000 fine or both if the persons converted happen to be a minor, a woman, or a person belonging to Scheduled Castes or Scheduled Tribes.

The law also provided that any arrest or investigation can be done without authorization of the court.

 ‘The Orissa Freedom of Religion Rules’ framed in 1989 required the person conducting the conversion ceremony to inform the district Magistrate 15 days in advance to the said ceremony and a failure to do so would attract a fine of Rs. 1,000. However, the law was struck down in 1973 by the High Court of Orissa that called it anti-Constitutional. But the High Court’s order became infructuous after the Supreme Court in Rev. Stanislaus v. State of Madhya Pradesh in 1977 ruled that right to propagate religion does not include right to convert as well. The law continues to be in force in the state.

Madhya Pradesh Dharma Swatantrata Adhiniyam (MP Freedom of Religion Act, 1968)

The Madhya Pradesh Freedom of Religion Act, 1968 is almost the same as enacted by Odisha in 1967.

However, here the word “inducement” has been replaced with “allurement” which has been defined as offer of any temptation in the form of “any gift or gratification either in cash or kind and grant of any material benefit wither monetary or otherwise”. The rest of the provisions are the same as in the Odisha Act.

The Act was upheld by both the MP High Court as well as Supreme Court.

However, Shivraj Singh Chauhan, who was chief minister of the state in 2006, tried to make the law more stringent by making amendment in it. According to the amendment, the persons conducting the conversion was required to inform the district magistrate the date and place of conversion one month in advance, the person converting was to appear before the district magistrate and confess that he wishes to change his religion on his own. After this, the district magistrate would provide details to Superintendent of Police who would investigate if there were any objection to the conversion. SP would then report to the DM about ‘no objection’ after which the DM would allow conversion. But state governor Balram Jakhar, a former Congress leader, did not sign the bill and sent it to President of India who rejected it, saying it was in violation of the freedom of religion guaranteed by the Constitution of India as it required approval of state authorities.

However, Shivraj Singh Chauhan, who became chief minister again, brought a new anti-conversion law called the Madhya Pradesh Freedom of Religion 2020, by repealing the previous anti-conversion law, which is considered to be the most stringent anti-conversion law in the country.

*Section 3 of the Act prevents conversion by use of “misrepresentation, allurement, use of threat or force, undue influence, coercion, marriage or any fraudulent means”. So, even conversion for marriage purposes is also a punishable offence.

Any conversion in contravention of the provision of the new Act will be considered null and void.

Other provisions of the Act are:

*The violation of the provisions will invite imprisonment for one to five years and a fine of Rs. 25,000 and it may go up to two to 10 years and a fine of Rs. 50,000 in case of conversion of a woman\, a minor or a member of SC/ST.

*Concealing of one’s religion at the time of marrying a person of another religion will invite imprisonment from three to 10 years and a fine of Rs. 50,000.

*Contravention of the provision in case of mass conversion will invite jail term of five to 10 years and fine of Rs. One lakh.

*Any marriage in contravention of Section 3 will be null and void.

However, any child born out of such marriage will be considered legitimate. Succession to property by such a child will be regulated as per law governing the inheritance of the father. The woman whose marriage has been declared null and void and the child born out of such a marriage will, however, be entitled to maintenance as provided in Chapter 9 of the CrPC 1973.

*Any one willing to convert his religion will have to declare at least 60 days in advance to the District Magistrate that he is converting his religion without force, allurement, undue influence and coercion and failure to do so will invite jail term of three to five years and a fine of Rs. 50,000.

.

Arunachal Pradesh Freedom of Religion Act, 1978

It was on the lines of the Odisha and MP anti-conversion laws.

It prevented conversion through “force”, “fraud” and “inducement”.

The law is reported to have been passed to protect the faiths of indigenous communities.

According to the Act,  “Indigenous faith” means such religious beliefs and practices including rites, rituals, festivals, observances, performances, abstinence, customs as have been found sanctioned, approved, performed by the indigenous communities of Arunachal Pradesh from the time these communities have been known and includes Buddhism as prevalent among the Monpas, Membas, Sherdukpens, Khambas, Khamptis and Singphos, Vaishnavism as practised by Noctes, Akas and Nature worships, including worships of Donyipolo, as prevalent among other indigenous communities of Arunachal Pradesh.

According to media reports, despite existence of anti-conversion law in Arunachal Pradesh, Christian missionaries continued propagation of their religion in presence of severe opposition from local Hindus. In 1951, there was not even a single Christian in Arunachal Pradesh. According to 2011 census, Christians-who are mostly Catholics-account for 30.29 per cent of state’s 1.3 million population while Hindus account for 29.04 per cent. According to newspaper reports, Christians now account for more than 50 per cent of the state’s population. Christian organizations in Arunachal Pradesh are demanding that anti-conversion laws passed in 1978 be withdrawn.

In 2018, Chief Minister Pema Khandu, who is a Buddhist, announced that he would repeal the anti-conversion law because the law undermines secularism and is targeted towards one community-Christians. A former Congress leader, Khandu had left the Congress and formed the government with support of BJP in 2016. As BJP is opposed to rescinding of the anti-conversion law, Khandu withdrew his plan to repeal the law under BJP pressure.

Chhattisgarh Freedom of Religion Act, 1968

Chhattisgarh that came into existence after bifurcation of Madhya Pradesh in 2000, adopted MP Freedom of Religion Act, 1968 but titled it as Chhattisgarh Freedom of Religion Act, 1968.

However, the Chhattisgarh Assembly in August 2006, amended the 1968 Act, making the law more stringent, perhaps to check the growing influence of Christian missionaries in tribal belt of the state.

The amendment provides that anyone wishing to convert will have to take permission from the district magistrate 30 days in advance and the latter may accept or reject it. Any violation of the provisions would invite three-year jail term and a fine of Rs. 20,000.

However, the amended law does not consider it “conversion” if some one reverts to his/her ancestor’s religion.

Gujarat Freedom of Religion Act, 2003

The Gujarat Freedom of Religion Act, 2003 was enacted when Narendra Modi, who is prime minister now, was chief minister of the state. The law seeks to prevent “forcible conversion” or attempt to convert any person from one religion to another by use of “force” or by “allurement” or by any “fraudulent means”.

And “allurement” in the Act means “any gift or gratification, either in cash or kind” and “grant of any material benefit, either monetary or otherwise”. “Force” includes “a show of force or a threat of injury of any kind including threat of divine displeasure or social ex-communication” and fraudulent means “includes misrepresentation or any other fraudulent contrivance”.

The Act also requires prior permission of the district magistrate for conversion.

An amendment of the Act was passed by the state government in 2006 and called the Gujarat Freedom of Religion (Amendment) Bill, 2006. The Bill stated that Jains and Buddhists will be considered as denominations of Hindu religion and hence, conversion from Hindu religion to Jain or Buddhism will not be construed as conversion. Likewise, Catholic and Protestants were considered as denominations of Christianity and Sunni and Shia were construed as denominations of Islam. The Bill was, however, rejected by the state governor after objections from Jain and Buddhist community leaders who stated that theirs were independent religions and not, denomination of Hindu religion.

The Act was amended and passed in the state assembly on April 1, 2021 and called the Gujarat Freedom of Religion (Amendment) Bill, 2021. However, it is yet to get consent of the state governor. The Bill added one more category of “allurement”. The Bill says that promise of a “better lifestyle, divine blessings (daivi kripa) or otherwise” would also amount to allurement.

The Bill has expanded the definition of “fraudulent means” by including “impersonation by false name, surname, religious symbol or otherwise. The Bill says that conversion “by marriage or by getting a person married or by aiding a person to get married” will be construed as part of “fraudulent means”.

In the Statement of Objects and Reasons, the Bill says that there are episodes of “religious conversion promising better lifestyle, divine blessings and impersonation”. It says that “there is an emerging trend in which women are lured to marriage for the purpose of religious conversion”.

Other provisions of the Bill are:

*It says: “Any aggrieved person, his parents, brother, sister or any other person related by blood, married or adoption, may lodge a first information report with the police station having jurisdiction against the person for an offence committed under this Act”.

*The Act says that besides “the person who does an act which constitutes the offence, each of those deemed to have taken part in the offence will be punished” and they include: (i) a person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence and (ii) a person who aids, abets, counsels or convinces another person to commit the offence, that is, to convert from one religion to another religion.

*The Bill also considers conversion for marriage as “unlawful conversion” and makes the conversion punishable with an imprisonment from three to five years and a fine of Rs. Two lakhs or both. In case of a such unlawful conversions in respect of a minor, a woman or a person belonging to Scheduled Caste or Scheduled Tribes, the punishment is a jail term from four to seven years and a fine of Rs. Three lakhs. The Bill allows a family court or any other court having jurisdiction to declare marriage for the purpose of “unlawful conversion” as void.

*For a forcible religious conversion by marriage, the Bill places the burden of innocence on the person who has caused the conversion and aided and abetted the conversion.

*The Bill also provides for three to ten years of imprisonment and a fine of Rs. Five lakh for the in-charge of an institution that is found to be guilty of any “unlawful conversion”. Such an institution will not be entitled for any government grant.

Himachal Pradesh Freedom of Religion Act, 2019

Himachal Pradesh government came with Himachal Pradesh Freedom of Religion Act, 2006  when the state was under Congress rule with Virbhadra Singh as chief minister. The law was brought to check religion conversions by Christian missionaries in the hill state. The Christian missionaries had challenged it in the High Court and the latter struck down the provision that the approval of the district magistrate is must for conversion.

The state BJP government headed by Jai Ram Thakur repealed the 2006 Act and brought a new law called Himachal Pradesh Freedom of Religion Act, 2019 to make the religious conversions tougher. Surprisingly, it included the section that was struck down by the High Court earlier. During discussions on the Bill in the state assembly, Thakur said, “During the past 13 years, not even a single case was filed under the 2006 Act, despite a series of religious conversions happening in areas of Ani in interior Kullu, Rampur in Shimla district, Chirgaon and Rohru (Shimla) and many other places of Chamba and Kangra. We will not allow this to happen as it disturbs the peace, and creates unnecessary tensions in the society.”

The main provisions of the new anti-conversion law are:

*No person shall convert from one religion to another by use of misrepresentation, force, undue influence, coercion, inducement or by any fraudulent means or by marriage; nor shall any person abet or conspire such conversion.

* If any person re-converts to his parent religion, it shall not be deemed to be a conversion.

*Marriages done for the sole purpose of religious conversion will be declared null and void by a family court.

*The person who desires to convert will have to give a declaration in a prescribed proforma, at least one month in advance, before the district magistrate that he is converting his religion “on his own volition or free consent and without any force, coercion, undue influence, inducement or fraudulent means”.

*The religious priest or persons conducting the conversion ceremony will have to inform the district magistrate one month in advance about the proposed conversion. The district magistrate will then conduct an inquiry through police to find out “intention, purpose and cause of proposed conversion”.

*Any conversion without permission of the district magistrate will be construed “illegal and void” and will invite imprisonment from three months to two years along with fine.

*The registration of any institution or organization found guilty of  “illegal” conversion will be cancelled.

*The persons or the organization found involved in “illegal conversion” will not be allowed to accept any donation or contribution of any kind from with the country or outside.

*The person who actually converts “illegally” and anyone who aids, abets, counsels or causes the person to commit the offence, will be deemed to have taken part in commission of the offence and shall be charged as if he has committed the offence himself.

*The burden of proof that the conversion has not taken place through wrongful means, will lie on the person so converted and all those involved in such a conversion.

* The Act provides the maximum punishment of seven years in case of conversion of persons belonging to the Scheduled Castes, Scheduled Tribes or woman. Other cases will attract punishment of five years against the earlier two years. There is also provision for a fine of up to Rs 50,000.

Jharkhand Freedom of Religion Act, 2017

It was passed by the BJP government in 2017 to prevent conversion of tribals to Christianity. BJP leaders have been accusing Christian missionaries of being involved in religious conversion of tribals accounting for about 30 per cent of the state’s population while Christian population accounts for about 4 per cent of the state’s total population.

The Jharkhand anti-conversion law is more or less on the lines of other states, preventing religion conversions “by the use of force or by allurement or by any fraudulent means, nor shall any person abet any such conversion.” Violation of the provisions invite imprisonment for a period of three years and a fine of Rs. 50,000 or both. The punishment in case of a woman, a minor or member of Scheduled Caste or Scheduled Tribe will be for four years and a fine of Rs. One lakh.

According to the Act, any person desirous of conversion of his religion and the priest or any person performing the conversion ceremony will have to inform the district magistrate in advance and failure of it will invite one year of imprisonment and a fine of Rs. 5,000 or both.

The Uttar Pradesh Prohibition of Unlawful Religious Conversion Act, 2021

The Yogi government in UP brought the anti-conversion law in February 2021, replacing an earlier ordinance brought in 2020, amid heated debate on alleged “love jihad”.

The Act prevents religious conversions through “allurement, coercion, conversion, force, fraudulent means, mass conversion, religion, religion converter, undue influence and unlawful conversion”. It defines allurement as “any gift, gratification, easy money or material benefit either in cash or kind, employment, free education in a reputed school run by any religious body or better lifestyle, divine pleasure or otherwise”.

The law was brought by the government to deal with alleged “love Jihad”, a terminology invented by right-wing Hindutva groups who alleged that Hindu women were being forcibly converted by Muslims through marriage.

The law provides for 10 years of imprisonment if found guilty of converting someone’s religion through marriage.

In case of forceful conversions, the penalty is one to five years of jail term and a fine of Rs. 15,000. There is punishment of three to 10 years with Rs. 25,000 penalty in case of forced conversions of minor, woman, or members of Scheduled Caste and Schedule Tribe.

There is a penalty of three to 10 years of jail term and fine of Rs, 50,000 in case of forceful mass conversions.

The law provides that religious conversions for marriage have to be approved by the district magistrate 60 days before such a marriage.

Uttarakhand Freedom of Religion Act, 2018

The law was enacted by the state BJP government on the direction of the Uttarakhand high court in 2017. The high court had asked the state government to enact a law on the lines of the Madhya Pradesh, Odisha and Himachal Pradesh Freedom of Religion laws saying that “it has come to our notice that conversion from one religion to another is often a sham conversion only to facilitate the process of marriage”.

The law stipulates that “forced or fraudulent conversions through allurement, coercion and undue influence” is a non-bailable offence and can be punished with a jail term from one to five years. In case of conversions related to a minor, a woman or a member of SC/ST, there will be imprisonment from two to seven years and fine also.

Other provisions are:

*Conversions for sole purpose of marriage will be declared null and void.

*One will require clearance of the government for religious conversion. The persons intending to convert will have to submit an affidavit to the district magistrate saying that he is converting on his own free will and not under any coercion or force.

All other provisions are the same as in Himachal Pradesh and Gujarat freedom of religion laws.

Rajasthan Freedom of Religion Bill, 2006

The Bill was passed when Vasundhara Raje was the chief minister of state to prevent religious conversions by “force, allurement, fraudulent and unlawful means” as in case of Gujarat Freedom of Religion Act, 2003.

Giving reasons for anti-conversion Bill, the statements of Objects and Reasons said, “It has been observed by the State Government that some religious and other institutions, bodies and individuals are found to be involved in unlawful conversion from one religion to another by allurement or by fraudulent means or forcibly which at times has caused annoyance in the community belonging to other religions. The inter-religion fabric is weakened by such illegal activities and causes law and order problem for the law enforcing machinery of the State.”

The Bill stipulated imprisonment of two to five years and a fine of Rs.50,000 for unlawful conversions.

However, it could not become a law because it was rejected by state governor Pratibha Patil who later on became President of India.

Tamil Nadu Prohibition of Forcible Conversion of Religion Act, 2002

The Act was brought by the then Chief Minister J Jayalalitha under the influence of right Hindu groups. She first brought an ordinance and then passed a Bill in the state assembly getting the ordinance replaced.

In its explanatory notes justifying the necessity of such a law, the Bill tabled in the state assembly, said, “Reports have been received by the Government that conversions from one religion to another are made by use of force or allurement or by fraudulent means. Bringing in a legislation to prohibit such conversions will act as a deterrent against the anti-social and vested interest groups exploiting the innocent people belonging to depressed classes. It may also be useful to nip in the bud the attempts by certain religious fundamentalists and subversive forces to create communal tension under the garb of religious conversion. The Government have, therefore, decided to enact a law to prevent conversion by use of force or allurement or by fraudulent means.”

The Act aimed to prevent religious conversions through “force, allurement and fraudulent means”. It stipulated fine of Rs. 50,000 and a jail term of three years in case anyone was found guilty of the offence. Under the Act, the conversion had to approved by the district magistrate. However, the Act was repealed in May 2004 by Jayalalitha government herself under political pressure.

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