Freedom of Religion and the Limits of Criminal Law

Seventy years on, the Indian state is yet to have a clear grasp of its relationship with the ideas of religious identity that each of its citizens is free to express under the Constitution. A secular state that has always been uncomfortable with expressing aloofness about religious beliefs, India has often struggled to clearly draw a line separating the ideas of religion from that of a nation, often creating a situation where the state finds its way into the realm of an individual's private space of her religious beliefs. This is not to say that I am in favour of a hard separation or think that it is necessary in each case, but only to make the limited point that these struggles to clearly demarcate zones of non-interference have existed for quite some time. 

At the same time, perhaps one basic line that (somehow) the state had maintained up till recently was a formal recognition of personal autonomy: laws might curb activities of those who aggressively proselytise to get people to change their religion (such as the Orissa Freedom of Religion Act 1967), but the law would not directly penalise the persons making this choice itself.     

Somewhere along the road though, it seems a switch was flipped, and it became acceptable for legislatures to no longer respect this precept. What followed is many laws which actively penalise the temerity to exercise the freedom of choice in favour of retaining a broader community interest in the expression of religious identity. In this version of reality, many laws masquerading as tools to secure the freedom of religion can be found, such as the Himachal Pradesh Freedom of Religion Act 2019. It is nothing short of a state-sponsored effort to create mechanisms and pathways which enable the society to totally overwhelm individual autonomy in matters of religious identity. After all, how else can one explain the law's bias when it creates a truly monstrous legal apparatus to deal with individuals who move out of a religious fold, but keeps it at bay if individuals are returning to whatever religious beliefs one is deemed to have had by virtue of being born into a fold.

The legal scheme works in two ways: criminalisation against those who allegedly force / induce / marry another to change their religion by way of offences that are non-bailable in nature and permit arrests without any warrants, but this is now broad and also punishes anyone who abets this act and so potentially applies to the person changing their religion. This is coupled with the creation of an oppressive legal regime which requires any person desirous of changing religious beliefs to make declarations to this effect before a District Magistrate, with similar notice requirements also being imposed on priests involved in any ceremonies that might be involved (All this, remember, won't apply if one returns to the parental religious fold). The Magistrate is legally-bound to inquire into the intention behind any such proposed move, and what's more, this inquiry can even be through the police. Yes: a law requires you to tell the state if you plan on changing your religious beliefs, and empowers the police to "inquire" into why you're doing it — all this while the Constitution is busy guaranteeing your privacy.

But all this is not what makes the law monstrous: this epithet is earned by the provision which states that the burden to prove that any "conversion" of religion is free from fear / inducement / even marriage, lies on the person who chooses to change her religious beliefs along with whoever facilitated this exercise of religious freedom. In one fell swoop, not only does the law manage to place individual autonomy under suspicion, but it also exposes the individuals and their loved ones to a trial by fire for a private choice that they make. This is the bottom line in a system like ours — it is never about trial and punishment, which rarely anyone cares about, but it is about merely triggering the criminal process which ensures even the innocent must face considerable harassment before clearing their name. 

What is this "Freedom of Religion Act" telling us then? That one is free to exercise the right to choose one's religious beliefs, subject to the state's satisfaction with possible penal consequences. Of course, the state will bother to inquire only if individuals choose to leave their parental religious fold, not when they "choose" to return to it. Thus, state and society seamlessly merge to combine the forces of public disapproval with the might of police / other agencies, leaving privacy and individual autonomy out in the cold. 

I won't be surprised if the current sprint between many states to suitably "protect" individuals being forced / conned into changing their religion ends up with the Himachal Pradesh statute being replicated across the length and breadth of the country soon. I will wonder, though, if that might be that gust of wind which blows out the dying embers of India's tryst with its transformative constitutional vision.