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A Division Bench of Justice Sanjeev Sachdeva and Justice Tushar Rao Gedela on Friday put a plea filed by lawyer and activist, Mr. Ashwini Kumar Upadhyay, for further consideration though it refused to issue notice to respondent parties. 

The plea seeks directions to the Central Government and the Delhi Government to frame laws prohibiting and pushing forceful religious conversions. 

The petitioner argued before the court that Centre and Delhi Government have failed to control menace of black magic superstition & deceitful religious conversion, though it’s their duty under Article 51A. He further argued that the injury caused to the public is extremely large because there is not even one district in India which is free of religious conversion under the pretences of black magic and superstition and by the 'carrot and the stick' and 'by hook and crook' approach.

"Incidents of massive religious conversion are being reported every day as religious conversion has continued by intimidating, threatening, deceiving and luring through gifts and monetary benefits and by using the black magic, superstition and miracles", the petitioner alleged. 

At the outset, Court refused to interfere, saying that the power to legislate the same was the government's mandate. "What you can't get directly, you also can't get indirectly", remarked Justice Sanjeev Sachdeva.

The petitioner proposed to provide the court with evidence of such incidents by way of newspaper reports and articles, reporting the incident.  To this, the bench orally observed, "Newspapers, whatsapp forwards, cannot be the basis of a petition".

ASG Chetan Sharma, appearing for the Union Government, argued that the tenor of the petition was systematic conversion by forced means such as allurement, deceit, Monterey benefits, etc. 

To this, Justice Sachdeva remarked, "Yes but there has to be some material on the basis of which we can take action". "Give us some material to act upon", added Justice Tushar Rao Gedela. 

The bench has put the matter for further consideration on the ground that the petition raises a serious issues which deserves greater examination by the court. 

The matter has been posted on July 25th for further hearing. 

Background 

The short submissions of the petitioner are:

• The Constitution of India under Article 14 ensures equality before law and secures equal protection of laws. Presently, religious conversion by intimidating, threatening and deceivingly luring through gifts and monetary benefits is an offence in Ghaziabad but not in adjoining East Delhi. Similarly, religious conversion by using black magic and superstition is an offence in Gurugram but not in adjoining West Delhi. It not only violates Articles 14 but is also contrary to principles of secularism and rule of law, which are basic structure of the Constitution.
• Women & Children are the main target of foreign funded conversion mafias but Centre and Delhi Government has not taken appropriate steps to control the religious conversion by ‘the carrot and the stick’ in spirit of Article 15(3). Hence, the Hon’ble Court may intervene.
• Religious conversion by ‘the hook and crook’ directly offends the right to life liberty dignity, guaranteed under Article 21 of the Constitution.
• Right to religion guaranteed under Article 25 is not an absolute right but subject to public order, health and morality. Religious conversion by using miracles, superstition and black magic is not protected under Article 25. Many foreign funded individuals and NGOs are converting EWS-BPL citizens to foreign religions by intimidating, threatening, deceivingly luring through gifts and monetary benefits.
• Article 25 is a protective as well as an enabling provision. On one hand, it secures right to custom and on another hand, it enables the State to prohibit ill custom. On one hand, it secures right to tradition, on the other hand, it permits the State to control ill tradition (कुप्रथा). On one hand it secures right to religion on other hand, it empowers the State to control conversion (धर्मांतरण).
• Article 46 is nevertheless fundamental. It directs the State to protect the SC-ST community from social injustice and exploitation. Undoubtedly, religious conversion by intimidating, threatening, deceivingly luring through gifts and monetary benefits and by using black magic and superstition is an injustice and exploitation.
• Article 51A: Centre and State has to: abide by the Constitution and respect its ideals and institutions; uphold and protect unity and integrity of India; promote harmony and spirit of brotherhood; renounce practices derogatory to dignity of women; value and preserve rich heritage of our composite culture; develop scientific temper, humanism and spirit of inquiry and reform; and strive towards excellence in all individual and collective activities; but Centre and State is not taking steps in spirit of Article 51A.
• Article 18 of International Covenant on Civil-Political Rights: Article 18(2) inter-alia states: “No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.” Article 18(3) states: “Freedom to manifest one’s religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedom of others.”
• The 1981 Declaration on the Elimination of All Forms of Intolerance and Discrimination based on Religion or Belief: Article 1(2) states: “No one shall be subject to coercion which would impair his freedom to have a religion or belief of his choice.” It carries a significant influence as it is entirely devoted to religious freedom.
• On 17.01.1977 in Rev. Stainislaus Case [(1977) 6 SCC 677], Apex Court had held that State can prohibit religious conversion by use of force or allurement or fraudulent means. [Annexure-1]
• On 10.5.1995, in Sarla Mudgal Case [(1995) 3 SCC6 635] the Apex Court had directed to ascertain the feasibility of enacting Anti Conversion Law but Centre did nothing. [Annexure-2, para 36-46]
• Situation Is Alarming as many individuals and organizations are carrying mass conversions of socially economically underprivileged people, particularly belonging to SC-ST. The foreign funded NGOs operate smoothly targeting socially-economically underprivileged sections particularly belonging to the SC-ST community.
• Unethical predatory conversion strategies are commonly used. One method is material enticement in which humanitarian aid or economic, educational, medical or social assistance is offered on the condition that the person converts. Another is the denigration of the person's religion to make a new religion appear superior. A third unethical, predatory method is the promotion of ‘bigotry’ i.e. knowingly and intentionally promoting religious hatred & violence. Predatory proselytization tears apart the fabric of the communities where it occurs and has led to the annihilation of cultures.
• The Law Commission of India in Report No-235 (Conversion and reconversion to another religion) after considering several judgments of the Supreme Court and of different High Courts observed that for converting into Hinduism no specific ceremony or documentary evidence is required. After considering all the relevant laws, provisions of the Constitution and the ground reality, there is a need to frame strict laws against conversions by use of force, fraud, allurement, charity or by any other means and such persons must be dealt with strict penal provisions and religious identity and sanctity of the indigenous people of India must be protected and restored.
• Chapter-XV of the Indian Penal Code deals with offences relating to religion. Therefore, religious conversion by “the carrot and the stick” and by “Hook and Crook” can be prohibited by inserting Section 296A and 298A. Likewise, Section 375A, 409A and 493A can be inserted in IPC to prohibit religious conversion by intimidating, threatening and deceivingly luring through gifts and monetary benefits and by using black magic and superstition. There is massive foreign funding through FCRA and Money Laundering to convert followers of Indian religion. But the Centre has not amended the FCRA and Money Laundering Act. Hence, the petitioner is filing PIL.

Cause Title:- Ashwini Kumar Upadhyay v Union of India [WP(c) 9422/2022]