Himachal’s ‘love jihad’ law has intent clause, which HC had struck down

Section 7 of the Himachal Act requires an individual to submit a “declaration” of intention to convert freely and without coercion from one religion to the other, to the District Magistrate. The provision also requires the priest or religious figure presiding over the conversion to give a month’s notice to the DM.

On August 30, 2012, a two-judge Bench of the High Court had struck down the Himachal Pradesh Freedom of Religion Act, 2006, passed during the then Congress regime, that had contained the exact same provision, holding it “ultra vires the Constitution of India”. Neither the BJP Himachal government in 2012 nor the private parties who intervened in the proceedings had challenged the decision of the High Court.

“Why should a human being be asked to disclose what is his religion?” “Why should a human being be asked to inform the authorities that he is changing his belief?” — the Bench comprising then Chief Justice of the High Court Deepak Gupta and Justice Rajiv Sharma had said.

The court had also cited the fundamental right to privacy of an individual to strike down provisions requiring prior notice to the authorities for conversion, even as it acknowledged that several rulings in the Supreme Court had upheld the validity of anti-conversion laws as the Constitution provides for “public order” as ground for restricting freedom of religion.

A violation of the above provision under the new Himachal law can result in a jail term of three months to one year for the person undergoing conversion and from six months to two years for the priest, respectively. The offence is non-bailable as well as cognizable, which means bail can be granted only on the discretion of a magistrate and not as a matter of right, and that the police can search or arrest an individual and launch an investigation on their own without a warrant from court.

Like the Uttar Pradesh Prohibition of Unlawful Religious Conversion Ordinance passed last month, the 2019 Himachal law specifically prohibits conversion for marriage, even if an individual testifies to have done so willingly, except when prior sanction has been obtained. Section 5 of the Himachal law and Section 3 of the Uttar Pradesh law which declare that “marriages for the sole purpose of conversion” will be null and void are worded exactly the same.

The 2006 Himachal law had been limited to forced religious conversions and did not touch upon conversions for marriage.

While borrowing provisions such as “marriage for the sole purpose of conversion”, the UP law goes further than the Himachal Act by shifting the burden of proof regarding the conversion from the converted to his/her partner; prescribing different jail terms depending on gender; and legitimising the intrusion of the State and third parties in the choice of who an individual wishes to marry.

Under Section 12 of the 2019 Himachal law, the burden of proving whether a religious conversion had been done through misrepresentation, force, coercion, undue influence, inducement or any other fraudulent means or “by marriage”, lies on the person converting or those facilitating.

The UP law also prescribes enquiry by a magistrate to give sanction for a conversion whereas the Himachal law only requires submitting a notice.

The new Himachal Pradesh anti-conversion law was promulgated in August last year, repealing the 2006 Act. Under Section 2 (J), it refers to conversion as “purification sanskar (purification ritual)”, and defines a religious priest for the purposes of the law as a person performing the conversion. The Act was notified only last week.

The 2006 law had been challenged by the Evangelical Fellowship of India and ANHAD, a non-profit run by activist Shabnam Hashmi. The Sanatan Dharam Sabha, Mahant Ram Mohan Das of the Brahmin Sabha, Shimla, and BJP leader Subramanian Swamy had intervened in the proceedings, defending the law.