Rajasthan HC 'guidelines' on religious conversion burden women, seem to contradict Right to Privacy law

By Sharanya Gopinathan

Converting your religion and spiritual faith is a deeply personal decision that only you get to make, right? Wrong! The Rajasthan High Court has just turned religious conversion into a reality game show, where for the first time, the general public gets to call in and vote on your conversion. Okay not exactly, but really close.

File image of Rajasthan High Court. Courtesy: raj.nic.in

File image of Rajasthan High Court. Courtesy: raj.nic.in

On 15 December, the high court was hearing a case (which bears alarming likeness to that of Kerala’s Hadiya) about Arifa (nee Payal), who converted to Islam and married a Muslim man.

In hearing this case filed by Arifa’s brother, the high court took it upon itself to set some “guidelines” in order to change religions or have an interfaith marriage. Now, Rajasthanis who wish to convert need to put up their names on a government notice board, where it will remain for a week, and people will be allowed to file objections before “permission” is granted for the conversion.

The directive doesn’t specify who these people are, so it looks like anyone, from your mother to your sworn enemy to your ex-lover to a member of a religious extremist group, can file an objection to your conversion.

How is this different from existing anti-conversion legislations?

This isn’t the first barrier to free conversion we’ve seen in India, although it’s still pretty unique. Several states, such as Odisha, Tamil Nadu, Himachal Pradesh, Gujarat, Arunachal Pradesh and Madhya Pradesh, have tried with varying degrees of success to enact legislation (many of them audaciously named “Freedom of Religion” Bills) that aimed to check “forced” conversion. Many of these required people to intimate a government official of their decision to convert, and in Gujarat, to obtain permission too.

These legislations have had tumultuous legal journeys, with many of them having sections struck down by high courts, as in Himachal Pradesh, or by the president, as in the case of Madhya Pradesh’s first attempt, or repealed by the government itself, a la Tamil Nadu.

Significantly, while striking down sections of the concerned Bill, the Himachal Pradesh High Court opined, “A person not only has a right of conscience, the right of belief, the right to change his belief, but also has the right to keep his beliefs secret.” [emphasis ours]

So, the differences to note here are that even in previous instances of legislation dealing with forced conversion, the courts have been known to strike down legislation formed by the government requiring the prior intimation of a government official.

In Rajasthan, the high court has actually taken it upon itself to introduce a rule that goes beyond government officials, and brings the general public into your choice to convert, even in the absence of such a legislation by the government. (Rajasthan’s “anti-conversion Bill” is still awaiting the president’s approval).

How unconstitutional is this?

The immediate question upon seeing this rule isn’t “is this unconstitutional”, but rather “how unconstitutional is this?” Short answer: 10/10.

Long answer: It does appear to violate several fundamental rights. The most obvious is Article 25, the right to freedom of religion and conscience (which guarantees your right to free thought too). It flies in the face of Article 21, the right to life and liberty, and Article 19, which gives you the right to free speech, expression and association.

It also seems to be violative of the spirit of the brand-new Right to Privacy law.

Picture this: You’re a resident of Rajasthan, and this rule has been in place for a month now. Members of religious extremist groups have parked themselves opposite this notice board, with the sole intention of beating up couples who have inter-faith marriages or people who choose to convert.

In this climate, would you be able to make the choice to convert, an extremely personal and intimate decision, without coercion or external influence? Isn’t that, in essence, what a right to privacy actually means?

While India hasn’t seen such a case yet to test the boundaries of its new right to privacy, the US Supreme Court did invoke this right in a strikingly similar situation in 1958.

In Alabama vs the NAACP, the court told Alabama that it couldn’t actually require the National Association for the Advancement of Colored People (NAACP), a civil rights group that helmed the massive social justice movement for African-Americans at that time, to make their membership lists public.

Pointing out that members were likely to be targeted by violence and other forms of societal retribution, the court ruled that such a stipulation would therefore discourage people from joining. This would in turn violate their right to privacy or to make private decisions freely.

While the NAACP wasn’t religious group, this legal reasoning would apply perfectly to Rajasthan and the violent discrimination faced by religious minorities in India, especially given the recent rise in cases of religiously motivated violence, like the murder of Afrazul Khan by Shambhu Lal Regar in Rajasthan just this month on 6 December, which actually inspired people to collect Rs 3 lakh for Regar and his family.

As constitutional lawyer Akhila Ramalingam points out, this move puts an unfair burden on those who wish to convert. While issuing this directive, the court said that the person officiating the conversion must satisfy that the person “is having full faith in the newly adopted religion”.

This is an extremely weird reading of the idea of “free and informed choice” that facetiously brings to my mind pujaris conducting on-the-spot General Knowledge tests for converts. This is probably not how the directive will actually play out, but it still puts an unfair onus on converts to be more “fully faithful” than people who don't convert.

Don’t you know utterly faithless people who are technically Hindus or Muslims or Christians? Is every person who chooses not to convert thoroughly well-versed in their family’s religion?

Furthermore, as Ramalingam says, the existing legislation dealing with religious conversions have all dealt with forced conversions. In creating new barriers for all conversions, the court sends the message that conversion itself is inherently suspicious and needs to be regulated.

She points out dryly, “The courts are meant to protect and enhance your existing freedoms, not create new barriers to freedom and social movement.”

So how will this affect women?

While the original panic over conversion in India began due to hysteria around Christian proselytisation, it’s interesting that in the most contentious cases of religious conversion this year, Hadiya and now Arifa, both women converted to Islam.

Another thing to note here is the other instance in which the law requires you to put up a public notice: When you get married under the Special Marriage Act (which is mostly used for interfaith weddings). It’s hard not to think that the requirement of public notices for interfaith marriages, and now, for religious conversions, comes from panic around ‘losing’ women of ‘our’ communities to others.

The verbiage of existing anti-conversion bills reflects this sentiment, given that many stipulate higher penalties for forcibly converting women, and include caveats that exempt reconversion to your natural religion (ie Hinduism). This new rule, of having the community object to religious conversion, feels like it will play more heavily on women, given that women have always been seen as historical keepers of the culture, and signifiers of cultural tradition and purity.

Given that women have less economic and social mobility and freedom than men, and face more pressure from the family and community, women also have more cause to worry about publicly declaring their religion and inviting objections, and fewer tools to deal with the repercussions.

So now what? Well, while the case does carry worrying echoes of Hadiya, it’s probably only a matter of time until it’s struck down. Until then, I guess we just keep the good folks of Rajasthan in our thoughts and prayers. Because they apparently aren’t allowed to think and pray for themselves.

Sharanya Gopinathan is a writer at The Ladies Finger (TLF), which is a leading online women’s magazine delivering fresh and witty perspectives on politics, culture, health, sex, work and everything in between.

Updated Date: Dec 20, 2017 16:10 PM

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