The move by the Rajasthan government has reignited discussions over whether or not such laws are necessary to safeguard vulnerable populations from threats to individual liberties as opposed to the fundamental right to “propagate” one’s religious faith enshrined under Article 25 of the Constitution.

Historical context of anti-conversion laws in India

India's history of anti-conversion laws dates back to the pre-Independence era. Although the British did not enact any such laws, many princely states did so to restrict missionary activities. Such examples include the Raigarh State Conversion Act (1936), Patna Freedom of Religion Act (1942), Sarguja State Apostasy Act (1945), and Udaipur State Anti-Conversion Act (1946). Specific laws against conversion to Christianity were also enacted in Bikaner, Jodhpur, Kalahandi, and Kota.

Post-Independence, attempts to pass central legislation on religious conversion have repeatedly failed. In 1954, the Indian Conversion (Regulation and Registration) Bill was introduced, followed by the Backward Communities (Religious Protection) Bill in 1960. Both bills failed to garner sufficient support. The last attempt was in 1978 when Morarji Desai’s Janata Party government introduced the All India Freedom of Religion Bill in the Lok Sabha, which was dropped after the government fell in 1979.

Despite the lack of central legislation, several states have enacted their own anti-conversion laws. Orissa, Madhya Pradesh, and Arunachal Pradesh passed such laws in 1967, 1968, and 1978, respectively. Later, similar laws were enacted in Gujarat, Himachal Pradesh, Chhattisgarh, Jharkhand, Uttarakhand, Uttar Pradesh and Karnataka.

Rajasthan's historical attempts and recent developments:

Rajasthan attempted to pass an anti-conversion law in 2006, but it has not come into force due to the lack of assent from the governor and the president. However, a set of guidelines issued by the Rajasthan high court in December 2017 allows scrutiny and prior approval by the state machinery for interfaith marriages, aiming to check forcible conversions for marriage.

The UP government passed the law, famously known as the ‘love-jihad’ law in February 2023, following enacting the ordinance on the same subject in November 2020. The law, considered one of the most stringent laws on the subject, prescribes a jail term of up to 10 years and a fine of up to ₹ ₹50,000 for conversion under marriage, fraud, coercion or enticement.

Karnataka, under BJP rule at the time, enacted one of the harshest anti-conversion laws in 2022, prescribing a minimum jail term of three years. However, the law was repealed in June 2023 after the Congress came to power.

Legal and constitutional debates

The debate on religious conversion centres on the fundamental right to “propagate” one’s religious faith versus unlawful conversion. The Preamble of the Indian Constitution, which underscores the “secular” nature of the republic, and the fundamental rights guaranteeing freedom of conscience, have anchored the Supreme Court in striking a balance.

Article 25 maintains that all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion, subject to public order, morality and health. Apart from the caveats mentioned above, the provision adds that the State shall still be entitled to regulate or restrict any economic, financial, political or other secular activity which may be associated with religious practice.

Similarly, Article 26 entitles every religious denomination to manage its own affairs in matters of religion, but this right is also subject to public order, morality and health. Articles 27 to 30 also guarantee freedom to manage religious affairs, monetarily contribute to the promotion of any religion, and set up and administer educational institutions.

From early decisions, the Supreme Court has protected the rights under Articles 25 and 26, stressing how the right to choose religion is a natural right of choice.

The Supreme Court’s stance on religious conversions has evolved through several landmark judgments. In Punjabrao Vs DP Meshram (1965), the Court interpreted the meaning of professing religion, holding that if a public declaration is made by a person that he has ceased to belong to his old religion and has accepted another religion, he will be taken as professing the other religion.

In the Rev Stainislaus Vs State of Madhya Pradesh (1977), the apex court upheld anti-conversion laws, ruling that Article 25(1) does not grant the right to convert another person but to propagate one’s religion by exposition of its tenets. “What is freedom for one is freedom for the other in equal measure and there can, therefore, be no such thing as a fundamental right to convert any person to one’s own religion,” it said.

In Sarla Mudgal Vs Union of India (1995) and Lilly Thomas Vs Union of India (2000), the Court held that conversions to Islam solely for practising polygamy were invalid. “A person who mockingly adopts another religion where a plurality of marriage is permitted so as to renounce the previous marriage and desert the wife, he cannot be permitted to take advantage of his exploitation as religion is not a commodity to be exploited,” said the Lilly Thomas judgment.

The M Chandra Vs M Thangamuthu & Another (2010) case laid down a test to prove conversion, requiring evidence of both conversion and acceptance into the new community. “It is a settled principle of law that to prove a conversion from one religion to another, two elements need to be satisfied. First, there has to be a conversion and second, acceptance into the community to which the person converted. It is obvious that the need for conversion cannot be altogether done away with,” it held.

In its 2011 judgment on the murders of Graham Staines - an Australian missionary who worked with the tribal people in Orissa, and his two sons – the apex court said: “It is undisputed that there is no justification for interfering in someone’s belief by way of the use of force, provocation, conversion, incitement or upon a flawed premise that one religion is better than the other.”

Recent judgments, particularly the nine-judge bench ruling in the right to privacy case (2017), have emphasised the constitutional right to freedom of religion, including the ability to choose and express faith. The judgment underscored that the state's interference must be proportionate to its needs. “The constitutional right to the freedom of religion under Article 25, thus has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world,” asserted the 2017 verdict.

The Supreme Court has yet to provide a definitive ruling on the legal interpretation of “propagate” while over a dozen petitions remain pending on various aspects of religious conversion. It becomes pressing for the Court to establish a precedent guiding the judiciary, executive and citizens.

As Rajasthan prepares to introduce its new anti-conversion law, it enters a complex legal landscape marked by historical precedents, evolving judicial interpretations, and ongoing constitutional debates. The new legislation will not only reflect the state's stance on religious conversion but also contribute to the broader discourse on religious freedom and state intervention in India.