Rajasthan Unlawful Conversion Act : aspiration of Constituent Assembly coming true

 

Rajasthan Unlawful Conversion Act :

aspiration of Constituent Assembly coming true

 

The preamble of the Rajasthan prohibition of unlawful conversion of religion, Act 2025,  seeks to attain  prohibition of unlawful conversion from one religion to another by misrepresentation, misinformation, fraud, undue influence, allurement online solicitation, or by any fraudulent means, or by marriage or pretext  of marriage, and for the matters connected there with. The civil society  welcomes this Act 2025  because it punishes conversion from one religion to another where religious conversion is not with free consent.

Marriage  across the world, is considered an act of civil society where mutual trust and purity remains the foundation of relationship. It would be relevant to mention that  Special Marriage Act, Muslim Marriage Act, Christian Marriage Act, Hindu Marriage Act etc, consider the element of fraud in marriage as one of the legitimate and legal  ground for divorce. Principal of Caveat emptor can not be used for marriage.In India wedding is not an individual act but it involves extended family members also.  Hence, illiterate  reading of the Act breeds fear of law who indulge in  dishonest act, having regard to the solemnization  of marriage and the conversion of religion under the influence of fraud and the similar factors. In case,  marriage is done for the sole purpose of unlawful  conversion, or vice versa shall be declared null and void by competent Court as per the scheme of the Act2025.

A brief survey of the Act 2025  makes it clear that the illegal conversion has been identified by certain acts. Procedure has been provided which fulfill the conditions of principle of natural justice. Secularism has been upheld which is the part of basic structure of the constitution. Element of arbitrariness has been properly checked by following due process of law, with the sufficient time to prove the stand  of the stakeholders

The constitution bench of five judges of the Honorable Supreme Court has upheld, the legislative power of the state to make laws on anti conversion law having regard to the public order being entry If the list II  of this schedule seven of the constitution of India. In the same case Apex Court has in  clear and  explicit words expressed that the propaganda cannot by any stretch of imagination include right to convert.

 

There is an illiterate reading of the Act 2025 for spreading misinformation about the Act  that the illegal conversion being non bailable  and  cognizable is  harsh . Constitution of India provides for federal structure of governance. State of Rajasthan in its wisdom and as per the division of Legislative powers is within the competence to enact this Act which seeks to deter  illegal conversion from one religion to another on the grounds which are in furtherance  of securing and maintaining public order in asmuch as establishing and maintaining  law and order   is the sovereign function of state. Hence,Act is  not in conflict with the national policy of India in asmuch as the doctrine of parens patriae justifies for the object sought to be achieved to be read with maxim salus populi est suprema lex. That he penalty is too harsh and disproportionate is the charge levelled against Act, 2025 is not tenable. Criminal jurisprudence provides the graded  punishment in as much as the reasonable classification based on intelligible differentia and the nexus between the object sought to be achieved must be established. This Act provides more graded and more harsh  punishment for the offences involving vulnerable sections of society like  minor, woman, person with disability, members of schedule tribes and schedule caste, and minimum punishment with fine. Also this is to deter persons who are anti social, antinational and pose threat to unity and integrity of this ancient land of India  in the committee of nations.

 

The Act neither  violates  right to privacy nor  personal liberty  It is settled  law that judicial review seeks to strike a balance between personal rights, liberty and public Interest which includes public order. The element of arbitrariness has been duly addressed in the scheme of the Act 2025.Right to  privacy is not an absolute right . It  has limits and the same has been allowed in the form of same sex relationship in private space. But if there is an element of fraud even the same  sex relationship is punishable under law . Registration of marriage , birth , death etc  is a norm in the welfare society for planning schemes , projects etc. There is an attempt  to frustrate this Act under the garb of invasion of right to privacy and personal liberty.

India is a secular country hence such anti conversion law are not  against the spirit of secularism in  spirit and letter. Understanding of the secularism, we need to refer to the constant assembly  debates. It is relevant to mention the debate dated 27 December 1948 of Constituent Assembly highlighted the real nature of secularism  and Dr Ambedkar  on Tuesday, the 7th December, 1948 in Debate underlined the real character of religions which are not of Indian origin . The claims of brotherhood of these religions  is restricted to the followers of the particular  religion only . The outsiders are looked down upon and found not worthy of Divine pleasure .Hence Right to convert cannot be claimed under the selective, vested and discriminatory  interpretation of secularism.

The Act 2025  is not in conflict with the international conventions and the treaties. No international law promotes illegal conversion which is thread to the communal harmony  and law and order of the society.

The property where the offence of unlawful conversion of the person from one releasing to another religion has taken place, shall be forfeited. It  takes place after  holding the inquiry by gazetted officer appointed by District Magistrate or the state government. The property found  involved in illegal conversion has been allowed to be forfeited  by the law, which is in the competence of the state Legislative Assembly. The said  property is liable to be demolished as per the time limit and the procedure enumerated in detail in the Act 2025.

 Onus of  proof and guilt  lying on the accused to prove the  innocence is not new in criminal jurisprudence. The existing laws like PCPNDT, NDPS, POCSO, Negotiable Instrument Act, dowry death, Insurance law ,Anti corruption laws are some of the examples where the burden of proof lies on the accused. When there is a special law to address special  issues ,law need not follow general principal of innocence till prove guilty .Hence Act 2025 is not in conflict with the criminal jurisprudence.

Advance intimation is not in violation of Article 20(3) of the constitution of India. Whoever desires to convert his or her religion is required to furnish declaration, at least 90 days in advance, to the designator authority in prescribed format. Similarly, the religion converter and the religious priest who performs conversions ceremony shall give two months advance notice to the designated authority in  prescribed format. District Magistrate after receiving the information as above mention shall cause such information to be published/displayed  in public notice for calling objections. After 60 days of objection ,if required ,an inquiry shall be made within 10 days of the objection. Violation of this provision is considered as an illegal act. After conversion , within 72 hours of the day of conversion, the converted person is required to submit the declaration to District Magistrate of the district, in which converted person resides ordinary.

In order to protect the privacy of the person, having being converted, certified copies of the declaration, confirmation and the extract from the register  shall be furnished only to the parties who gave declaration, therefore, this provision of holds the right to privacy, which is the part of the article 21 of the constitution of India.

Act 2025 provides equal opportunity to all   persons to convert to original religion that is ancestral religion. It is by any stretch of imagination, not discriminatory, because it applies to all the persons inasmuch as  no discrimination has been allowed on the basis of religion, cast sex place of residence, etc. Hence, it passes the constitutional test of equality, reasonableness, and  fairness.

Therefore  it can be  concluded  that Act 2025 providing opportunity of being heard, public inquiry, reasonable time in inquiry, protection of privacy, having regard to the declaration and  confirmation pass  the constitutional scheme of the reasonableness, transparency ,equality, upholding the spirit and the letter of article 14, 20, 21 and 25 enshrined in the Fundamental rights in  the constitution of India.

 

Surya Pratap Singh Rajawat

Advocate

Rajasthan High Court

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