The story so far: The Gujarat government recently issued a circular clarifying that Buddhism and Hinduism must be considered as two separate religions for religious conversions in the State. Accordingly, anyone converting from Hinduism to Buddhism, Jainism or Sikhism needs to get approval from the local district magistrate as defined under the Gujarat Freedom of Religion Act, 2003 (2003 Act).
The circular issued by the Home Department on April 8 noted that “applications seeking conversion to Buddhism were not being dealt with as per rules,” which prompted such a clarification. Signed by Deputy Secretary (Home) Vijay Badheka, the move comes amid growing concerns over the arbitrary interpretation of the 2003 Act by district magistrates, leading to delays in the approval process for religious conversions.
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What does the circular stipulate?
The circular issued by the Gujarat government highlights that district magistrates have been arbitrarily interpreting the 2003 Act, leading to inconsistencies in the approval process for such conversions. It stipulates that “in applications seeking permission for conversion from Hinduism to Buddhism, procedure as per rules are not being followed. Moreover, sometimes, representations are being received from applicants and autonomous bodies that for religious conversion from Hinduism to Buddhism, prior permission is not required.”
This misconception has led to some district magistrates disposing of applications while stating that under Article 25(2) of the Constitution, Sikhism, Jainism and Buddhism are included within Hinduism and so the applicant is not required to take permission for such religious conversions, the circular added. The constitutional provision guarantees freedom to profess, practice, and propagate religion and stipulates that laws can be enacted to provide social welfare or reform to “all classes and sections of Hindus”. The explanation for the provision further states that the reference to Hindus will include persons “professing the Sikh, Jain or Buddhist religion.”
In a bid to curb “judicial litigations” as a result of the existing ambiguities in the law, the circular underscores that “with reference to Gujarat Freedom of Religion Act, Buddhism will have to be considered a separate religion.” Further, a person seeking to convert as well as the individual facilitating the conversion are required to obtain prior permission from the district magistrate in the prescribed format. The circular also instructs district magistrates to carefully review applications for religious conversion, ensuring compliance with legal provisions and government instructions.
Notably, in 2006, a Bill seeking to amend the law was introduced in the State assembly which stipulated that “Jain and Buddhist shall be construed as denominations of Hindu religion.” However, it was later withdrawn by the Gujarat government in 2008 after Governor Nawal Kishore Sharma found it to be violative of Article 25 of the Constitution and refused to give his assent.
How are religious conversions regulated in Gujarat?
In 2003, as Chief Minister of Gujarat, Prime Minister Narendra Modi delivered on his election promise to prevent religious conversions in the State by enacting the Gujarat Freedom of Religion Act, 2003. He introduced the Gujarat Freedom of Religion Bill and it was passed by the State Assembly that year.
The law was introduced to deal with “religious conversion through allurement, force or by misrepresentation or by any other fraudulent means.” Section 3 of the Act criminalises attempts to convert any person from one religion to another “by use of force or by allurement or by any fraudulent means or by marriage or by getting a person married or by aiding a person to get married.” Further, Section 3A, inserted through an amendment in 2021, enables “any aggrieved person” or a person related to them to lodge a First Information Report (FIR) for any alleged unlawful conversion.
The legislation provides for the punishment of those who seek to forcibly convert for a period of up to three years imprisonment and a fine of up to ₹50,000. For a valid conversion to take place, the person performing the conversion ceremony such as a religious priest as well as the person seeking to get converted will have to obtain prior permission from the district magistrate through a prescribed format. Non-adherence will invite a punishment of up to one year or a fine of up to ₹ 1,000.
In 2021, the Act was amended to penalise forcible or fraudulent religious conversion by marriage or “love jihad” by bringing in a host of stringent provisions. As per its statement of objects, the amendment sought to curb the “emerging trend in which women are lured to marriage for the purpose of religious conversion.” Under the newly amended law, religious priests must obtain permission from the district magistrate to convert any person from one religion to another. It also prescribes an increased punishment of imprisonment in the range of three to five years and a fine of ₹3 lakh for unlawful conversion.
Additionally, the amendment puts the burden of proof on the accused “who has caused the conversion” and declares such marriages to be void. If the victim is a minor, a woman or a person belonging to the Scheduled Castes or Scheduled Tribes, then the offenders will be punished with a jail term of 4-7 years and a fine of not less than ₹3 lakh.
Why is the Act facing a legal challenge?
In July 2021, the Jamiat-Ulema-e-Hind, and Mujahid Nafees, leader of the Minorities Coordination Committee, filed separate petitions in the Gujarat High Court challenging the Gujarat Freedom Of Religion (Amendment) Act, 2021 and requested a stay on the provisions governing conversion through marriage. The petitioners contended that the Act violates Article 25 of the Constitution (freedom to practise any religion) in addition to Articles 14 (equality before the law), 19 (freedom of opinion and expression), 21 (protection of life and personal liberty) and 26 (freedom to manage religious affairs).
“This bogey of ‘love jehad’ was created into a movement primarily by certain vested interests who evidently stood to benefit from pursuing such a communal agenda. The term love jehad as a phenomenon singles out one kind of conversion by vilifying one community as conspiring to convert young girls and, by implication, Islam as a religion whose co-religionists allegedly increase the strength of their own religion by getting people from other religions converted to their own religion,” Mr. Nafees’s plea stipulates.
On August 19, 2021, a Division Bench comprising Chief Justice Vikram Nath and Justice Biren Vaishnav in an interim order stayed the challenged sections. “[These sections] shall not operate merely because a marriage is solemnised by a person of one religion with a person of another religion without force or by allurement or by fraudulent means and such marriages cannot be termed as marriages for the purposes of unlawful conversion,” the Bench said.
However, the Bench did not bar the operation of the 2003 Act in cases that do not concern interfaith marriages, clarifying that the order only intends to “protect the parties of interfaith marriage from being unnecessarily harassed.” The larger challenge to the 2021 amendment is still pending before the High Court.
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In the following September, the Gujarat government challenged the limited stay before the Supreme Court. It argued that Section 5 constitutes the “core” of the entire Act and a stay on it is effectively a stay on the entire legislation, and implies that anyone converting, whether for a marriage or otherwise, does not need the State’s permission.
Before the apex Court, the case has been tagged along with other petitions challenging the constitutionality of anti-conversion laws in Uttar Pradesh, Madhya Pradesh, Uttarakhand and Himachal Pradesh. A Bench comprising Chief Justice of India D.Y. Chandrachud and Justices J.B. Pardiwala and P.S. Narasimha is currently considering whether to transfer to itself all the various cases against anti-conversion laws pending beforeHigh Courts so that they can be clubbed together and heard at the same time.
How has the circular been received?
Every year, Gujarat sees mass conversions by Hindus — predominantly Dalits— to Buddhism on festivals like Dussehra and Ambedkar Jayanti. Buddhism was the faith Dr. B.R. Ambedkar embraced when he decided to leave Hinduism. Hindus seeking to convert to Buddhism are often told that prior permission from the district magistrate is not required since the religion is considered to be a part of Hinduism. Over the years, such misconceptions have hindered the smooth execution of the conversion process and underscored the need for clearer guidelines.
Accordingly, the recent government circular is being hailed by various Dalit collectives as an effective step towards curbing administrative hurdles faced by Dalits seeking conversion.
Welcoming the circular, the Secretary of the Gujarat Buddhist Academy, Ramesh Banker, pointed out that at least 2,000 people, mainly Dalits, converted to Buddhism in 2023 alone and that the clarification has abated confusion over the law. As per the 2011 Census data, there are 30,483 Buddhists in Gujarat – 0.05% of the State’s population. However, stakeholders argue that the actual number of Buddhists in the State is not reflected because Census officials record them as Hindus.
