Syed Khalique Ahmed
NEW DELHI—A two-judge bench of the Madhya Pradesh High Court recently ruled that the authorities could not force citizens to declare their intention to convert their faith.
The high court declared it “ex-facie unconstitutional” to force citizens to notify the government about their desire or willingness to convert their religion.
In the same order, the high court granted permission to marry two adult citizens of their own volition, irrespective of their faith.
The high court delivered the judgement on several petitions that challenged the Madhya Pradesh Freedom of Religion Act (MPFRA), 2021. However, Shivraj Singh’s government has declared to challenge the high court order in the Supreme Court.
The judgement carries immense importance because MPFRA came in the way of the marriage by couples belonging to different faiths and created problems for persons intending to give up their religion of birth or the religion of their parents and ancestors and embrace another religion. Moreover, the violation of the Act’s provisions attracted imprisonment from one to seven years, along with a heavy monetary fine.
In the judgement running into 32 pages, the high court has relied on various decisions of the Supreme Court, particularly the nine judges’ bench order in K S Puttaswamy vs Union of India (2017) case, Kesavanand Bharati vs State of Kerala (1973), Lata Singh vs State of Uttar Pradesh and Others (2006), Laxmibai Chandaragi B vs State of Karnataka(2020), Shafin Jahan vs K M Ashokan (2018), Evangelical Fellowship of India vs State of Himachal Pradesh (2012) and Jamiat Ulema-i-Hind Gujarat vs State of Gujarat (2021).
In all these cases, the Supreme Court and high courts of Himachal Pradesh and Gujarat ruled that the right to choose a life partner is a fundamental right protected under Article 21 of the Constitution and that there is no need for approval from family members or the state government in case there is a consent between two adults to get married. In Puttaswamy and Shafin Jahan cases, the Supreme Court ruled that “society has no role to play in determining the choice of partners.”
Considering the judgements in various cases of similar nature delivered by the Supreme Court and high courts of HP and Gujarat, the two-judge bench of MP high court comprising justices Sujoy Paul and Prakash Chandra Gupta ruled that Section 10 of MPFRA was apparently “unconstitutional.” The ruling has demolished the entire MPFRA structure, which restricted religious freedom.
In August 2021, the Gujarat High Court bench comprising then Chief Justice Vikram Nath and Justice Biren Vaishnav stayed the operation of Section 5 of the Gujarat Freedom of Religion (Amendment) Act, 2021, which made it mandatory to seek prior permission from the district magistrate for marriage between two adults of different faiths. Section 5 also prescribed punishment for marriage by unlawful conversion. Taking advantage of this provision, many vigilante groups propagated that marriages between couples of other religions were solemnized for religious conversion, and hence, the marriage was unlawful. Vigilante groups, in many cases, filed police complaints to harass such couples.
The MP high court’s judgement is essential in the sense that several state governments, including Gujarat, Uttar Pradesh, Himachal Pradesh and Uttarakhand, have made interfaith marriages an offence by introducing the concept of conversion by marriage in their respective Freedom of Religion Act (FRA) passed at different points of time. These laws had taken away the choice of two adults from other religions to get married.
Though the marriage itself was not illegal, the FRA of these states declared it an offence because they perceived that the marriages between interfaith couples were done for conversion. FRAs provided that not only close relatives but anyone can file a complaint with the police that the marriage has been solemnized for conversion, resulting in harassment of the couple. The question is, when the wedding itself is legal, how can it become an offence even if one of the partners decides to follow the religion of the other partner?
Quoting several apex court judgements, MP high court bench said that the constitutional right to freedom of religion has implicit within it the right to choose faith. The apex court’s order noted that the right to freedom of religion also grants the right to the citizens to declare their choice of religion to the world or not, including the state authorities. Referring to a judgement of the HP high court, the MP high court bench categorically declared that it is “illegal to force the citizens to declare their wish to change the religion to the authorities.”
Quoting the HP high court order that “the right to change the belief cannot be taken away under the garb of maintaining ‘public order’”, the MP high court bench said that “if this is permitted, it will open the pandora’s box and this may lead to conflicts between the rival outfits and groups.” It concurred with the petitioners that “the disclosure of religion or intention to change religion rather may lead to communal tension and may endanger the life or limb of the converted. The bench quoted the HP high court order saying that “the remedy proposed by the State may prove to be more harmful than the problems.”
As for conversion by “force”, “fraud”, or “inducement,” the bench relied on HP’s high court order saying it must be dealt with in accordance with the law.
Regarding 30 days’ notice to the district magistrate before conversion, the MP high court bench, again quoting HP high court order, said that someone willingly would not change their religion overnight, except in case of forced conversions. The court observed that a change of faith of one’s own volition is a long, drawn-out process. Hence, there is no way to measure or fix the date on which one has ceased to belong to one religion and changed to another, particularly in religions where conversion does not require any ceremony. Hence, no notice is required to be given for a change of religion.