THE PROHIBITION OF UNLAWFUL CONVERSION OF RELIGIOUSACT: BETWEEN CONSTITUTIONAL MORALITY AND LEGISLATIVE OVERREACH

ABSTRACT:

This article critically examines the *Prohibition of Unlawful Conversion of Religion Act, 2023*, arguing that it shifts personal conscience into the realm of State control. Although presented as a protection against coercive conversions, the Act’s ambiguous definitions, prior declaration requirements, and reversed burden of proof create a chilling effect on religious freedom. Grounded in constitutional guarantees under Articles 14, 19, 21, and 25–28, and drawing on landmark rulings such as *Puttaswamy*, *Navtej Johar*, and the “Hadiya” case, the paper asserts that faith is essential to privacy, dignity, and autonomy. Additionally, it references international human rights standards and the doctrine of proportionality to highlight the Act’s overreach. Concluding that democracy and secularism cannot flourish under regulated belief, it advocates for judicial scrutiny, clearer safeguards, and a reaffirmation of constitutional morality.

Keywords: “Freedom of conscience; religious conversion; secularism; constitutional morality; privacy and autonomy; Article 25; doctrine of proportionality; chilling effect; colourable legislation; anti-conversion laws; human rights; Indian Constitution; judicial review; faith and state control.”

INTRODUCTION:

Can Faith Be Regulated by Fear?

The term “conversion” has long been a point of contention in Indian constitutional discourse. From the debates in the Constituent Assembly, where Dr. B.R. Ambedkar championed the liberty of conscience, to today’s legislatures crafting anti-conversion laws, the tension between individual freedom and State control persists.

The Prohibition of Unlawful Conversion of Religion Act, 2023 (referred to as “the Act”) represents the latest attempt to navigate this delicate balance. It aims to criminalize conversions purportedly carried out through force, fraud, coercion, or inducement. However, beneath its stated objectives lies a contentious framework that requires prior State approval for what fundamentally should be a matter of personal conscience.

This article examines the Act through the prism of constitutional morality, judicial precedents, and comparative legal frameworks. It contends that while protecting individuals from fraudulent conversions is indeed important, the structure of the Act imposes an undue burden on personal liberty and creates a chilling effect on religious freedom.

CONSTITUTIONAL ANCHORS

1. Secularism as a Basic Feature

The Constitution (42nd Amendment) Act, 1976 introduced the term “secular” into the Preamble of the Constitution[1]. Secularism primarily serves as a normative doctrine that rejects all forms of inter-religious domination and opposes any institutionalized religious control. Its essence is captured in the idea of “sarwa dharma sambhava,” or tolerance for all religions. The controversial act undermines the secular fabric that is essential to Indian democracy. Secularism embodies a positive principle, advocating that the State should respect all religions equally and avoid discrimination between them. This was affirmed in the case of Bommai v. Union of India, where Justice Jeevan Reddy noted that while citizens are free to profess, practice, and propagate any religion or belief they choose, from the State’s perspective, an individual’s religion is irrelevant; all are equal and deserve equal treatment.

In S.R. Bommai v. Union of India (1994) 3 SCC 1, the Supreme Court recognized secularism as a fundamental aspect of the Constitution. In India, secularism is not just about State neutrality; it embodies a model of equal respect that prevents the State from favouring or discriminating against any religion. By treating conversions as inherently suspect and requiring prior State oversight, the Act undermines this neutrality and leans toward majoritarian concerns rather than upholding constitutional principles.

To emphasize the importance of secularism as part of the Constitution’s basic structure, the Court stated that “any step inconsistent with constitutional policy is, in plain words, unconstitutional.” It has become evident through various laws that states are actively intervening in a biased manner to facilitate state involvement in an individual’s right to change their faith.

The measures implemented are extensive and punitive in nature. Their overarching impact would be to create obstacles for all propagation activities and cast doubt on any legitimate conversions. These laws do not serve as neutral protections for vulnerable groups but rather represent an effort to enforce religious policing that harasses and intimidates religious minorities while intruding unreasonably into their personal lives. Thus, this approach stands in opposition to the principle of secularism and violates the fundamental structure of the Constitution.

2. Article 14: Equality and Non-Arbitrariness

Article 14 prohibits arbitrary actions by the State (E.P. Royappa v. State of Tamil Nadu, (1974) 4 SCC 3). The Act distinguishes between religious associations and other types: one can freely change political parties or ideologies but must seek State permission to change their faith. This distinction lacks a rational connection to any legitimate goal and constitutes an arbitrary infringement on personal liberty.

3. Article 19: Propagation as Free Expression

Article 19(1)(a) protects free expression, which encompasses the right to promote one’s religion. In Rev. Stanislaus v. State of Madhya Pradesh (1977) 1 SCC 677, the Court upheld restrictions on forced conversions but did not outlaw voluntary persuasion. By equating “allurement” with illegality, the Act threatens even genuine charitable or persuasive efforts, chilling free expression in religious matters.

4. Article 21: Privacy, Dignity, and Autonomy

Does the requirement for prior permission and the mandatory inquiry process, as outlined in sections 8 and 9 of the acts, infringe on the right to privacy and personal liberty under article 21 of the constitution of india?”

The nine-judge bench in Justice K.S. Puttaswamy v. Union of India[2] (2017) 10 SCC 1 recognized privacy as essential to dignity and autonomy..The court affirmed that the Right to Privacy is a Fundamental Right protected under Article 21 of the Constitution of Bharat. Any restrictions on this Fundamental Right are deemed valid only if they meet a three-fold test:

(i) Legality, which requires that there be an existing law; 

(ii) Need, defined by a legitimate aim of the State; and 

(iii) Proportionality, ensuring a rational connection between the objectives and the means used to achieve them.

Privacy encompasses personal autonomy and the freedom to make decisions about one’s beliefs and faith without interference from the State.

Regarding Legality: Although the Act exists, its provisions require individuals to disclose their intent to convert, which is arbitrary and excessive. 

For Need: The Act’s professed aim of preventing forced conversions does not justify such significant intrusion into personal freedoms. 

On Proportionality: The methods imposed by the Act, like mandatory prior notice, far surpass any legitimate objective and are unreasonable.

The significance of personal autonomy in matters of faith is highlighted in Common Cause v. Union of India. In this case, a Constitutional Bench of the Supreme Court stated: “Our autonomy as persons is founded on our ability to decide when to speak and what we speak, on our right to believe or not believe, on whom to love and whom to partner with, and to freely make countless decisions that impact our daily lives.” The liberty of individuals is severely compromised by the mandatory inquiry into conversion processes. By compelling individuals to disclose personal information, the Act undermines the spirit of autonomy safeguarded by Article 21.

This principle was clearly articulated in Peoples Union for Civil Liberties (PUCL) v. Union of India, where the Supreme Court asserted that “the Right to Privacy is part of the Right to ‘Life’ and ‘Personal Liberty’ enshrined under Article 21 of the Constitution.” This right cannot be restricted “except according to procedure established by law,” which must be just, fair, and reasonable. Additionally, in cases like Gandhi v. Union of India and Govind v. State of Madhya Pradesh, the Hon’ble Supreme Court reaffirmed that “the Right to Privacy is implicit in the Right to Life and Liberty guaranteed to citizens by Article 21.” Religious choice, like sexual orientation (Navtej Singh Johar v. Union of India, (2018) 10 SCC 1), is fundamental to identity. In Shafin Jahan v. Asokan K.M. (2018) 16 SCC 368 the well-known “Hadiya case” the Court asserted that the right to choose one’s faith and partner is part of decisional autonomy. By requiring disclosure of intent to convert to State authorities, the Act encroaches on the private realm of belief.

Articles 25–28: Freedom of Religion

“Does the prohibition of unlawful conversion of religion act, 2024, violate the fundamental right to freedom of religion enshrined in article 25 of the constitution of India, especially regarding voluntary religious conversions? issue-2: does the requirement for prior permission and the mandatory inquiry process, as outlined in sections 8 and 9 of the acts, infringe on the right to privacy and personal liberty under article 21 of the constitution of India?”

Article 25 guarantees the right to profess, practice, and propagate religion, though it is subject to public order, morality, and health considerations. However, “propagation” should not be equated with “conversion by persuasion.” The Act imposes restrictions that exceed constitutionally permissible grounds, effectively replacing constitutional morality with legislative morality.

Article 25 of the Constitution grants every individual the ‘freedom of conscience’ along with the right to freely profess, practice, and propagate religion though it is subject to public order, morality, and health considerations. However, “propagation” should not be equated with “conversion by persuasion.” The Act imposes restrictions that exceed constitutionally permissible grounds, effectively replacing constitutional morality with legislative morality.

According to the Black’s Law Dictionary, conscience refers to the moral sense; it is the ability to judge the moral qualities of actions and distinguish between right and wrong, particularly in assessing one’s own conduct. This freedom of conscience implies that a person can choose to be non-religious while exercising their right to conscience or adhere to a religion while enjoying the same right. “Every citizen shall enjoy freedom of conscience and the right freely to profess and practice his religion[3].” Dr. Donald Smith asserted that “the State could have no power over an individual’s freedom of conscience, and therefore, the wording of Article 25, which seems to suggest state restrictions, resulted from poor drafting[4].” Dr. Radhakrishnan explained that “when we refer to India as a secular State, it does not imply a denial of the reality of an unseen spirit or the significance of religion in life nor does it elevate irreligion. It doesn’t mean that secularism itself takes on a positive religious role or that the State assumes divine rights. While faith in the Supreme is fundamental to Indian tradition, the Indian State will not align itself with or be governed by any particular religion. We maintain that no single religion should receive preferential treatment or unique distinction, nor should any one religion be granted special privileges in national life or international relations, as this would violate basic democratic principles.”

“Best interests of both religion and government. This perspective on religious impartiality, understanding, and tolerance has a vital role to play in both national and international contexts. No group of citizens should claim rights and privileges that they deny to others. No individual should face any form of disability or discrimination due to their religion; everyone should have the freedom to fully participate in communal life.

In the case of Hadiya vs. Ashokan K.M., the Supreme Court affirmed that an adult has the right to marry and convert to a religion of their choice without state interference. Similarly, in Lata Singh v. State of UP, the court stated: “This is a free and democratic country, and once an individual reaches adulthood, they can marry whomever they choose. If parents disapprove of an inter-caste or inter-religious marriage, their only recourse is to sever social ties with their child; they cannot resort to threats, violence, or harassment against anyone who enters such a marriage.”

According to Article 16 of the Universal Declaration of Human Rights (UDHR), “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, as well as the freedom, alone or in community with others and in public or private, to express his religion or belief through teaching, practice, worship and observance[5].”

III. ANATOMY OF THE ACT: PROVISIONS UNDER SCRUTINY

Section 3: Prohibition on Conversion by Force, Fraud, or Allurement

At first glance, Section 3 seems benign as it criminalizes conversions through coercion or fraud. However, the issue arises from the ambiguity surrounding “allurement.” This term includes promises of a “better lifestyle,” potentially encompassing ordinary acts of kindness or genuine spiritual encouragement. In Shreya Singhal v. Union of India (2015) 5 SCC 1, the Court invalidated Section 66A of the IT Act due to vagueness. Similarly, Section 3 runs the risk of being unconstitutionally broad.

Section 8: Prior Declaration Requirement

The Act requires individuals planning to convert to submit a prior declaration to the District Magistrate, who may investigate their “real intent.” This resembles a demand for prior approval before exercising a fundamental right. As noted in Bijoe Emmanuel v. State of Kerala (1986) 3 SCC 615, matters of conscience should not require State consent. Forcing disclosure to a secular authority not only violates privacy but also exposes converts to potential social hostility.

Section 10: Burden of Proof

By placing the burden of proof on the accused to demonstrate that their conversion was lawful, Section 10 undermines the presumption of innocence — a foundational principle in criminal law. In Maneka Gandhi v. Union of India (1978) 1 SCC 248, the Court interpreted fairness and reasonableness within the framework of Article 21. A statute that criminalizes belief while assuming guilt is clearly unreasonable.

DOCTRINAL DEBATES

Doctrine of Proportionality

“The principle of proportionality holds that a public authority should strike a balance between its specific objectives and the means it employs to achieve those objectives, ensuring that its actions impact individual rights only to the minimal extent necessary to protect the public interest.”

The proportionality test, reaffirmed in Modern Dental College v. State of Madhya Pradesh (2016) 7 SCC 353, requires that restrictions on rights be necessary, appropriate, and minimally intrusive. The Act does not meet this standard. If the goal is to prevent coercion, existing penal provisions (Sections 361, 366 IPC, etc.) are sufficient. Additional requirements for prior approval are neither essential nor the least restrictive option. In the case of R v. Minister of Agriculture, Fisheries and Food, Ex Partee Federation Europeanness de la Santé Animale (FEDESA), the European Court of Justice subsequently adopted the four-stage test for applying this doctrine.

1. Legitimacy: Does the act (decision, rule, policy, etc.) being reviewed serve a legitimate general aim in relation to the right in question?
2. Suitability: Is the act capable of achieving that aim?
3. Necessity: Is the act the least intrusive means to achieve the desired level of realization of that aim?
4. Fair balance or proportionality: Does this act provide a net benefit when weighing the reduction in enjoyment of rights against the achievement of the aim?

Void-for-Vagueness

Vague terminology undermines the guarantee of equality under Article 14. In Shreya Singhal, the Court struck down laws due to their imprecision which could lead to arbitrary enforcement.”

“Reading fairness and reasonableness into Article 21 reveals that a statute criminalizing belief while assuming guilt is clearly unreasonable.

The terms “undue influence” in the Act suffers from the same flaw, leaving individuals vulnerable to subjective interpretations.

Chilling Effect

A law can be unconstitutional not just for what it punishes but also for what it discourages. The doctrine of chilling effect, established in Chintaman Rao v. State of Madhya Pradesh (AIR 1951 SC 118), is directly applicable here. The fear of harassment or prosecution can discourage individuals from exercising their rightful freedom to adopt or promote their faith. The mandatory inquiry and prior notice requirements outlined in Sections 8 and 9 create a chilling effect on individuals’ fundamental rights to privacy and liberty. This discourages people from making voluntary choices out of fear of state scrutiny. The impact of this chilling effect was underscored in Navtej Singh Johar v. Union of India, where a constitutional bench of this court found that Section 377 severely restricted individuals’ freedom, presenting a serious threat to the unimpeded expression of one’s sexual orientation as part of dignity and privacy.

In Shafin Jahan v. Asokan K.M., the Supreme Court emphasized the negative consequences of State intervention in such matters, stating that “interference by the State in these issues has a seriously chilling effect on the exercise of freedoms.” The petitioners contend that State interference in personal affairs undermines constitutionally protected freedoms and liberties. In Shakti Vahini vs. Union of India and Ors, it was noted that “liberty, in its concrete sense, consists in the ability to choose.” When this ability is stifled under the guise of class honour, it threatens an individual’s autonomy. “Frame is subjected to absolute indignity, creating a chilling effect that permeates the minds and bodies of society as a whole. In the current case, according to Article 21 of the Constitution, every individual has a right to privacy, yet this right is being violated by sections 8, 9, and 10 of the challenged Act. Section 10 enforces penalties for failing to comply with the procedures outlined in sections 8 and 9. Consequently, the Act exerts a chilling effect on individual rights.

In Soni Gerry vs. Gerry Douglas, the Court noted: “She has unequivocally stated her intention to return to Kuwait to continue her career. Given this context, we believe that as an adult, she is entitled to make her own choices and exercise her freedom; the Court need not determine whether she has been pressured by her father. While there may be numerous reasons for her decision to return to her father in Kuwait, those reasons are irrelevant here. What matters is her statement before the Court; that is central to our reasoning and keeps all disputes at bay.””

Colourable Legislation

The doctrine of colourable legislation prevents the State from accomplishing indirectly what it cannot do directly. While the Act purports to protect public order, its true focus seems to be on interfaith marriages, often vilified in the political narrative of “love jihad.” This underlying intent makes the law colourable in nature.

VII. CRITICISMS AND COUNTER-ARGUMENTS

Supporters’ Perspective:

The Act protects vulnerable communities from exploitative conversions. It safeguards against the exploitation of illiterate or economically disadvantaged groups. Public order serves as a valid basis for limiting conversions.

Critics’ Perspective:

The Act uses vague language, which can lead to the harassment of minorities. Prior approval requirements shift the presumption of liberty. It promotes social distrust and moral policing, which threatens secularism.

VIII. THE LARGER DEMOCRATIC QUESTION

At its heart, the Act poses a significant democratic question: can democracy flourish if personal beliefs require government approval? Dr. Ambedkar emphasized during the Constituent Assembly debates that the freedom of conscience is essential to democracy. By regulating an individual’s choice to adopt a belief, the State risks substituting constitutional morality with majoritarian values.

1. THE WAY FORWARD
2. Judicial Review: Courts should rigorously examine the Act, striking down any vague or disproportionate provisions.
3. Reading Down: Terms like “allurement” need to be narrowly defined to exclude genuine persuasion.
4. Safeguards: There should be procedural checks, independent oversight, and privacy protections in place.
5. Balance: While it is important to prevent coercion, the law must align State interests with individual liberties.
6. CONCLUSION

The Prohibition of Unlawful Conversion of Religion Act stands at the intersection of liberty and legality. While its stated goal of preventing fraudulent conversions may seem commendable, its implementation leans towards an intrusive oversight of personal beliefs. Faith should not be treated as a commodity; it is a deeply personal aspect of one’s identity.

As the Supreme Court has frequently emphasized, the Constitution serves to protect both unpopular and popular choices alike. Ultimately, this Act does not safeguard faith; rather, it undermines freedom. The judiciary must reaffirm that in India, conscience belongs to the individual, not to the State.

BIBLIOGRAPHY:

1. N. Shukla, Constitution of India A-23 (Eastern Book Company, London, 12th edn., 2013).
2. Justice K.S. Puttaswamy (Retd.) v. Union of India, A.I.R. 2018 S.C. 1841 (India).
3. Nitin, Right to Freedom of Conscience, Free Profession, Practice and Propagation of Religion Under Article 25 of the Constitution of India, 84 Int’l J. L. _ (2022).
4. Nimita Aksa Pradeep, Doctrine of Proportionality in Indian Administrative Law: An Analysis, 5 Indian J. L. Polity & Admin. _ (year).
5. N. Gen. Ass., Universal Declaration of Human Rights, art. 12, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217 A(III), 10 Dec. 1948, https://www.un.org/en/universal-declaration-of-human-rights.

[1]V.N. Shukla, Constitution of India A-23 (Eastern Book Company, London, 12th edn., 2013).

[2] Justice K.S. Puttaswamy (Retd.) v. Union of India, A.I.R. 2018 S.C. 1841 (India).

[3] Nitin, Right to Freedom of Conscience, Free Profession, Practice and Propagation of Religion Under Article 25 of the Constitution of India, 84 Int’l J. L. _ (2022).

[4] Nimita Aksa Pradeep, Doctrine of Proportionality in Indian Administrative Law: An Analysis, 5 Indian J. L. Polity & Admin. _ (year).

[5] U.N. Gen. Ass., Universal Declaration of Human Rights, art. 12, G.A. Res. 217 (III) A, U.N. Doc. A/RES/217 A(III), 10 Dec. 1948, https://www.un.org/en/universal-declaration-of-human-rights.