The Supreme Court on January 3 observed that all religious conversions cannot be presumed by a State to be illegal while agreeing to hear a Madhya Pradesh government appeal against a High Court decision freezing a mandatory provision requiring a person who desires to convert to another faith to give 60 days’ prior intimation to the local District Magistrate.
A Bench led by Justice M.R. Shah issued notice but refused to order an interim stay of the High Court order even as Solicitor General Tushar Mehta, for Madhya Pradesh, argued that “conversion in the country is based on marriage”.
The provision under question is Section 10 of the Madhya Pradesh (Freedom of Religion) Act, 2021. Section 10(1) and (2) of the Act mandated that a person who desires to convert and a priest/person who intends to organise a conversion, respectively, should give a two-month prior declaration to the District Magistrate that the proposed change of religious faith is not motivated by force, undue influence, coercion or allurement. A person who wants to organise a conversion and refuses to give such a declaration would suffer penal consequences, which includes imprisonment of three to five years and costs of not less than ₹50,000.
Mr. Mehta said, conversion largely happened in the country by marrying a person of another faith. The provision did not ban inter-faith marriage but only acted as a safeguard against forcible or illegal conversion.
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The law officer contended that Section 10 of the 2021 Act was in pari materia (on the same subject matter) with Section 5 of the Madhya Pradesh Dharma Swatantrya Adhiniyam of 1968, which was upheld by a Constitution Bench of the Supreme Court in a judgment in Rev. Stainislaus versus State of Madhya Pradesh in 1977.
Mr. Mehta submitted that the 1977 verdict had held that the word ‘propagate’ in Article 25 of the Constitution did not give “the right to convert another person to one’s own religion, but to transmit or spread one’s religion by an exposition of its tenets”. The Constitution Bench had held there was “no fundamental right to convert another person to one’s own religion”. Freedom of religion was not guaranteed in respect of one religion only, but covered all religions alike.
He urged the court to at least restore the implementation of Section 10 of the 2021 Act to the extent that the intimation to District Magistrates may continue. He said the High Court had gravely erred in not considering the larger public interest involved against the conduct of illegal religious conversions through force or deceit.
“But not all conversions are illegal…” Justice Shah remarked orally.
The Bench said it would examine the petition and the question of granting interim relief in the next hearing on February 7.
A series of petitions are being filed against laws enacted by States, including Uttar Pradesh, Uttarakhand, Himachal Pradesh, Madhya Pradesh and Gujarat, making it mandatory for persons seeking to convert to give prior declaration.
On Monday, NGO Citizens for Justice and Peace approached the apex court in an identical case concerning an Uttarakhand law. Senior advocate C.U. Singh argued before another Bench led by Chief Justice D.Y. Chandrachud that the State’s interference amounted to a curb on the fundamental right of a person to choose a partner of his or her choice. The Chief Justice Bench has sought details of all such cases and their status in various High Courts.
Mr. Singh, on Tuesday, had pointed out that such Acts were being enacted one after the other and contained identical provisions.
In the current case, the Madhya Pradesh High Court, on November 14, had found strong prima facie reasons to grant citizens protection against the coercive action the State could take under Section 10 of the 2021 Act.
“Section 10 makes it obligatory for a citizen desiring conversion to give a declaration in this regard to the District Magistrate, which in our opinion is ex facie unconstitutional… Thus, till further orders, the respondent [Madhya Pradesh] shall not prosecute adult citizens if they solemnise marriage on their own volition and shall not take coercive action for violation of Section 10 of Act of 2021,” the order had read.
In December, the Gujarat Government, buoyed by an oral observation by the Supreme Court that forcible or fraudulent religious conversion would ultimately affect national security, had pushed for the revival of a provision in its State law which required a District Magistrate’s prior permission for converting or “taking part” in a ceremony involving religious conversion.
The operation of Section 5 and several other key provisions of the Gujarat Freedom Of Religion Act, 2003 was stayed by the State High Court in August 2021.
