Basic Structure Touchstone for Anti-Conversion Laws

Hindustan Times

1. Introduction and Context

This editorial, authored by Insiya Vahanvaty and Ashish Bhardwaj, critically examines the constitutional and ethical validity of India’s anti-conversion legislations — with a specific focus on the Uttar Pradesh Prohibition of Unlawful Religious Conversion Act, 2021.

Using judicial precedents and the Basic Structure Doctrine, the authors analyze whether these laws — originally intended to prevent coercion in religious conversions — violate fundamental freedoms such as:

• Freedom of Religion (Article 25)
• Freedom of Speech & Conscience (Article 19(1)(a))
• Right to Privacy and Personal Liberty (Article 21)

The piece contextualizes the issue as part of India’s larger constitutional struggle between individual autonomy and state control over faith, especially in an era marked by rising majoritarian sentiment and moral policing of interfaith relationships.

2. Key Arguments and Core Discussion

a. Rise of Anti-Conversion Laws

• As of August 2024, Uttar Pradesh alone recorded 1,682 arrests and 883 cases under its anti-conversion law.
• Similar legislations exist in Uttarakhand, Gujarat, Rajasthan, Madhya Pradesh, and Himachal Pradesh, showing a nationwide legislative trend.
• The authors argue that these laws have expanded beyond curbing coercion, now imposing restrictions even on voluntary conversions, particularly in cases linked to interfaith marriages.

b. Judicial Interpretation and Tension

• Cites Rev. Stainislaus v. State of MP (1977), where the Supreme Court upheld state power to regulate conversions through coercion or fraud.
• However, the authors claim that current laws exceed constitutional intent, turning individual faith decisions into administrative matters.
• Provisions like mandatory prior notice to the District Magistrate and verification of “genuine intent” convert a private act of conscience into a public bureaucratic procedure, exposing individuals to harassment and social stigma.

c. Constitutional Conflict and Basic Structure Doctrine

• Drawing from Kesavananda Bharati v. State of Kerala (1973), the authors argue that secularism, liberty, and rule of law form part of India’s basic structure, immune from legislative violation.
• Any law that curtails individual liberty in matters of faith, they assert, erodes this basic structure — making judicial review essential.
• Thus, while states can regulate coercion, they cannot criminalize personal spiritual autonomy.

d. Religion, Choice, and Privacy

• The editorial cites K.S. Puttaswamy v. Union of India (2017) to affirm that religious belief and conversion are integral to one’s right to privacy and conscience.
• By requiring state approval or notice for conversion, anti-conversion laws effectively invade the private realm of belief, violating Articles 21 and 25.
• Faith becomes state-certified rather than self-determined.

e. Secularism under Threat

• The authors argue that these laws institutionalize mistrust between communities and reinforce the “love jihad” narrative, turning secularism into selective tolerance.
• They warn that moral policing of interfaith marriages and conversions threatens India’s plural ethos, transforming a secular republic into a surveillance-based moral state.

3. Author’s Stance

The authors take a liberal-constitutional and rights-based stance.
They defend individual autonomy, secularism, and judicial oversight as non-negotiable pillars of India’s democracy.

Their tone is analytical, not polemical — but clearly critical of the expanding scope and misuse potential of anti-conversion laws.
They advocate judicial review as the means to ensure such laws pass the “basic structure” test of the Constitution.

4. Biases Present

5. Pros and Cons

 Pros

• Constitutional Depth: Strong legal reasoning using Articles 19, 21, and 25 alongside Kesavananda Bharati and Puttaswamy.
• Judicial Relevance: Frames the issue through the basic structure doctrine, elevating debate above politics.
• Ethical Clarity: Defends secularism and personal liberty as foundational democratic values.
• Educational Value: Provides a lucid explanation of the difference between “coercive” and “voluntary” conversion.

 Cons

• Security Oversight: Ignores state’s legitimate concern over organized or coercive conversions.
• Limited Federal View: Overlooks the concurrent jurisdiction of state and union under List III (public order, religion, criminal law).
• Minimal Reform Suggestion: Critiques without providing a balanced regulatory alternative.
• No Socio-Cultural Insight: Doesn’t capture community perspectives or field-level enforcement realities.

6. Policy and Governance Implications

a. For Lawmakers

• Review state laws to ensure distinction between coercion and free will in conversions.
• Replace permission-based clauses with post-facto declarations to protect privacy.
• Align legislation with constitutional morality and international human rights standards.

b. For the Judiciary

• Exercise judicial review to safeguard secularism and liberty under Articles 32 & 226.
• Revisit Stainislaus (1977) in light of privacy jurisprudence post-Puttaswamy.

c. For Governance

• Adopt a trust-based governance approach instead of surveillance mechanisms.
• Promote community-level awareness and interfaith harmony initiatives.

d. For Civil Society

• Use constitutional literacy campaigns to educate citizens on freedom of religion and secular ethics.
• Encourage legal aid to individuals facing harassment under such laws.

7. Real-World Impact

Positive:

• Reinvigorates public debate on constitutional morality and freedom of conscience.
• Strengthens judicial scrutiny of laws that threaten fundamental rights.
• Empowers civil society and minority voices to demand accountability.

Negative:

• May be perceived as elitist or anti-majoritarian, widening ideological divides.
• Risks being dismissed as theoretical by communities demanding stricter anti-conversion enforcement.
• Could politically polarize discourse on religion and personal liberty.

8. Alignment with UPSC GS Papers

9. Conclusion

The editorial articulates a powerful constitutional critique:
Anti-conversion laws, as presently framed, risk eroding the secular and liberal core of the Indian Republic.

By invoking the Basic Structure Doctrine, the authors transcend political debates and place the issue within the larger moral architecture of the Constitution.
While acknowledging that coercive conversions must be curbed, they argue that criminalizing faith choices undermines the dignity and autonomy of individuals — the very essence of democracy.

India’s secularism, they conclude, thrives not on control, but on trust in the citizen’s conscience.

10. Future Perspectives

1. Judicial Re-examination:
   The Supreme Court should revisit Stainislaus (1977) through the lens of Puttaswamy and privacy jurisprudence.
2. Model Central Law:
   Enact a national framework clearly defining “coercion” while protecting voluntary conversions.
3. Community Dialogue:
   Promote interfaith trust-building forums rather than criminal investigations.
4. Educational Integration:
   Introduce constitutional ethics modules in schools and colleges to nurture tolerance and awareness.
5. Data Transparency:
   Public disclosure of arrests, acquittals, and conviction rates to prevent misuse of anti-conversion provisions.