Religious Regulation in India
Summary and Keywords
Freedom of religion is a constitutional right in India, but this religiously diverse democracy regulates religion in several ways, including enforcing religious personal laws, regulating religious minority educational institutions, monitoring conversions, limiting religious appeals during political campaigns, and outlawing acts that outrage religious feelings. The 42nd constitutional amendment in 1976 added the word “secular” to the Indian constitution, which provides a distinctive model of religion-state relations and regulation that is rooted in historical struggles with colonial rule and abundant religious diversity. The “personal law” system grants major religious communities distinct family laws. Religious minorities have regulated autonomy in the sphere of education based on constitutional commitments to minority colleges and educational institutions. The religious freedom clause in the Indian constitution is one of the most comprehensive in the world, yet several state-level “freedom of religion” acts prohibit “forcible” or “induced” conversions. Affirmative action or “reservation” policies also necessitate regulating conversions, as low castes lose their eligibility upon conversion to Islam or Christianity. Appealing for votes on the basis of religion or caste is a “corrupt practice.” A colonial-era statute continues to outlaw “deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.” Constitutional and state regulations of cow slaughter also protect the religious beliefs of some Hindus. Whether defending “religious freedom” by limiting conversions, or criminalizing insults to religious beliefs, laws in India to “protect” religions and religious persons at times threaten the practice and expression of diverse religious perspectives.
Freedom of religion is a constitutional right in India, but this religiously diverse democracy regulates religion in several ways, including enforcing religious personal laws, regulating religious minority educational institutions, monitoring conversions, limiting religious appeals during political campaigns, and outlawing acts that insult religious beliefs. The 42nd constitutional amendment in 1976 added the word “secular” to the Indian constitution, which provides a distinctive model of religion-state relations and regulation, rooted in historical struggles with colonial rule and abundant religious diversity.
Religious “personal laws” emerged under British colonialism, granting major religious communities some distinct family laws pertaining to marriage, divorce, inheritance, and adoption, among others; this system continued after independence. Judges and administrators interpreting and enforcing these laws are not necessarily devotees of the religion in question. These religious civil laws have sparked controversies over gender equity and the political impediments to reform. Various religious communities also have some regulated autonomy in the sphere of education based on constitutional commitments to minority colleges and educational institutions.
The religious freedom clause in the Indian constitution is one of the most comprehensive in the world, even protecting the right to “propagate” religions. Yet an increasing number of state-level “freedom of religion” acts prohibit “forcible” or “induced” conversions. Officials and activists use these laws to impede lower-caste, tribal, or female converts to minority religions based on assumptions that they are too naïve to exercise true religious freedom. Affirmative action or “reservation” policies for lower castes have resulted in regulation of conversions as well, as low-caste beneficiaries of these policies lose their eligibility upon conversion to Islam or Christianity, despite arguments that this denies their religious freedom.
Another contentious arena is the regulation of religious appeals in the context of political campaigns. In 2017, the Supreme Court of India expanded the scope of a law that makes appealing for votes on the basis of religion or caste a “corrupt practice.” Religious speech is also limited by a statute of the Indian penal code (295-A) passed in 1927, which outlaws “deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.” Hindu nationalists have increasingly used this statute to harass and threaten authors, including American scholar of Hinduism Wendy Doniger and Tamil novelist Perumal Murugan, who addresses caste and gender issues. Other threats have been inspired by constitutional and state regulations of cow slaughter. Hindu activists have attacked Muslims and Dalits (low castes, formerly known as untouchables) after rumors or accusations of slaughtering cows. Whether defending “religious freedom” through outlawing conversions by groups assumed to be gullible, or criminalizing insults to “religious feelings,” laws in India to “protect” religions and religious persons increasingly threaten the practice and expression of diverse religious perspectives.
Religious regulation must be understood in the context of India’s Constitution, which came into effect in 1950 and includes a detailed religious freedom clause:
Article 25 of the Indian Constitution (1950)
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I.—The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II.—In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
Clause 1 has typical caveats (public order, morality, and health) but wide-ranging protected activities (to profess, practice, and propagate). The former provide many reasons to restrict religious freedom, while the latter provide a broad right to freely practice religion, setting up tensions such as challenges to propagation in the name of preserving public order. Clause 2 retains the state’s broad regulatory rights (part [a]) and ability to redress caste discrimination (part [b]).
Explanations I and II reveal that India’s religious diversity immediately complicated religious regulation. Sikhs ensured that carrying the kirpan (a sword or knife, and one of five articles of faith in Sikhism) was specifically protected as religious profession. Explanation II, subsuming other religions (Sikhism, Jainism, and Buddhism) into Hinduism, set up legal debates about the definitions of religions, and the relationships between majority and minority religions, for years to come. A majority Hindu country, India is the birthplace of Buddhism and has the third largest Muslim population in the world, millions of Christians, and the majority of the world’s Sikhs, Jains, and Parsis (Sen, 1999, p. 157).
Balancing majority (Hindu) and minority (Muslim, Christian, Sikh, Jain, Buddhist, Parsi, Jewish, etc.) concerns about religious freedom and religious regulation remain an ongoing political project and potentially rewarding focus for future research. Religious regulation in India also reveals tensions between constitutional law and state laws within India’s federal system. Several states have implemented laws such as cow slaughter bans and conversion statutes, which restrict religious minority communities and test the limits of religious freedom under India’s Constitution. This article will focus on legal and administrative regulations, but social forces can also impact what different communities are permitted to do, as discussed in the section “Cow Protection.” Those interested in the social enforcement of religious stances will find a vibrant literature examining the interplay of party politics and social activism in the name of Hindu nationalism and the ideology of Hindutva, a potent force despite India’s constitutional secularism (Basu, 2015; Khalidi, 2008; Udayakumar, 2005; Van der Veer, 1994; Williams & Moktan, 2018).
Partition along religious lines into predominately Muslim Pakistan and Hindu-majority India influenced the overarching sentiment at the time that secularism was an idea that newly independent India should embrace. Jawaharlal Nehru, India’s first prime minister, strongly emphasized the importance of India being “secular” in the Constituent Assembly debates. Nehru’s emphasis on secularism was informed in part by his religious skepticism as well as his commitment to minority rights in the wake of partition and its resulting mass migrations, which meant India was even more predominantly Hindu than before (Bajpai, 2002, p. 184; Tejani, 2008, pp. 258–259).
Although the framers of the Indian Constitution provided for the plurality of religious belief and practice, the term “secular” was initially not included in the constitution and was only added to its preamble 27 years later with the inclusion of the 42nd amendment. In 1991, the Supreme Court in S.R. Bommai v. Union of India (1994) further reinforced secularism by stating that it is part of the basic structure of the constitution. Despite the constitutional inclusion of the term “secular” and judicial reinforcement that India is indeed a secular state, debates persist as to whether secularism is the right path for India, and an agreed-upon definition of Indian secularism remains elusive.
For some scholars, secularism as a concept is flawed—a borrowed idea that cannot be transplanted to the Indian context without recognition of its traditions. One of the most evident challenges is the pervasiveness of religion and the role it plays in the lives of South Asians (Madan, 1987, pp. 747–759; Nandy, 1998, pp. 321–344). Unlike some Western democracies where a “wall of separation” exists between church and state, Indian secularism is described in less concrete ways. In the absence of a Hindi word for “secular,” Indian secularism is described as being more in line with the Hindi phrase sarva dharma samabhava or equal respect (Singhvi, 2009, p. 332). Others describe the relationship between the state and religion as one of equidistance, whereby there is an equal distance between the state and religion and where one religion is not favored over another. Amartya Sen describes this as a “basic symmetry of treatment,” where “in so far as the state has to deal with different religions and members of different religious communities there must be a basic symmetry of treatment” (Sen, 2005, p. 296).
Others see the relationship between the Indian state and religion not as one of neutrality or equidistance—or as the state engaging with all religions equally and in the same manner—but rather as what Rajeev Bhargava terms “principled distance.” In this iteration, nonestablishment of religion does not mean religion is wholly separate from public life. Instead, “the state intervenes or refrains from interfering in religion depending entirely upon whether or not some values are protected or advanced” (Bhargava, 2007, p. 40). Since independence, the nature of the relationship between the state and religion has varied. Williams and Jenkins’s research on Indian secularism concludes that “at times, under certain leaders, it meant equidistance between the state and religion, while at other times, under other leaders, it devolved into periods of state-religion entanglements” (Williams & Jenkins, 2015, p. 35).
The constitution allows for religious plurality and state interference. On the one hand, Article 25(1) grants citizens freedom of conscience and the right to profess, practice freely, and propagate religion, while Articles 15, 16, and 29(2) center on the equality of citizens regardless of religion, race, sex, or caste. The constitution also makes room for the state to interfere in religious matters in Article 25(2a), which states, “Nothing in this article shall affect the operation of any existing law or prevent the State from making any law regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice.” A 21st-century example of this involvement is a Supreme Court ruling on the issue of Muslim personal law and “triple talaq,” discussed in the section “Personal Laws.” However, interference by the state into religious matters is not limited to minority religions. Government involvement in the management of religious institutions, and specifically the involvement of the state in the management of Hindu temples, is another example (Chatterjee, 1994, p. 1770). Beyond family law rulings and temple regulations, other interference by the state into religious matters affects religious practice in a more indirect manner, such as through restrictions on foreign funding.
Restrictions placed on foreign funds in countries around the globe have increased in recent years. While vital to a variety of nongovernmental organizations (NGOs), governments often view foreign funding with suspicion. Concerned with potential challenges to their authority and cultural conflicts, governments tend to justify restricting the inflow of funds as necessary for state security and establishing accountability (Mayer, 2018). These regulations, enacted outside the sphere of religion, can in practice impact religious practices and organizations even more than overtly religious regulations. An example is the Indian government’s regulation of foreign funds via the Foreign Contribution Regulation Act (FCRA).
Originally passed in 1976 under Prime Minister Indira Gandhi, and established under emergency rule, the FCRA monitors the inflow of foreign funds sent from individuals and associations into India. The law’s intent at first was to limit foreign interference in national elections; it was portrayed as an issue of national security and targeted political parties. Subsequent amendments, and a broadening of the scope of the FCRA in 2010, have increased the number of regulatory guidelines, which now impact thousands of NGOs. Foreign funds are vital to many NGOs, and the FCRA has become the “first tool any ruling government uses to control NGOs not in its favor” (Jalali, 2008, p. 184).
Government approval of the receipt of foreign funds is granted only after “prior permission” is granted from the Home Ministry or through a five-year renewable license. Reporting obligations are extensive, and the foreign funds are not to be used for activities that are likely to prejudicially affect the sovereignty and integrity of the country, the security, strategic, scientific, or economic interest of the state, the public interest, free and fair elections, friendly relations with any foreign state, or harmony between religious, racial, social, linguistic, regional or caste groups. The FCRA’s stated purpose is “to prohibit acceptance and utilization of foreign contribution or foreign hospitality for any activities detrimental to the national interest and for matters connected there with or incidental thereto” (Foreign Contribution [Regulation] Act, 2010). However, references to “national interest” and “public interest” are not defined and left to the interpretation of the government, prompting allegations that the FCRA is used as a tool of reprisal against dissenting voices in civil society that are critical of the government or do not align with its ideology (Amnesty International, 2017). The tightening of foreign funding has negatively impacted the activities of NGOs including religious organizations. One such example is Compassion International, a Christian charitable child welfare organization. The Christian charity, which had operated in India for 48 years, was accused of alleged proselytization and required to receive funds only with prior permission from the Home Ministry. Due to this financial restriction, Compassion International, despite advocacy efforts to defend it, closed its operations in India in 2017.
Personal laws in India are distinct sets of family laws for Hindus, Muslims, Christians, Jews, and Parsis (also known as Zoroastrians). For purposes of personal laws, the category of Hindus is supersized to include Sikhs, Buddhists, and Jains (Hindu Marriage Act, 1955, section 2), an issue featured in our discussion of Jains demanding to be recognized as a religious minority for purposes of education regulations. In a system originating under British colonial rule, these distinct family laws apply in certain civil cases, such as marriage, divorce, maintenance (akin to alimony), guardianship, adoption, inheritance, and succession. Regular civil judges (not religious authorities) oversee and interpret cases falling under these laws, which are adjudicated through the state court system. Although British colonial rulers considered personal laws to be part of their policy of neutrality in religious affairs in India and hoped thereby to avoid religious unrest, in practice the “very process of ‘preserving’ family laws effected fundamental transformations of them,” as varied texts, customs, and interpretations became codified (Williams, 2006, p. 607). Determining who was in which religious community and thus subject to which laws was complicated, as documented by historian Chandra Mallampalli in his analysis of the mid-19th-century case Abraham v. Abraham, involving lower-caste brothers married to Eurasian women and a lengthy dispute over inheritance (Mallampalli, 2011).
Personal laws continued after independence. Article 44 of the constitution calls for India to create a uniform civil code—“The State shall endeavour to secure for the citizens a uniform civil code throughout the territory of India”—but this is in the non-justiciable “Directive Principles” section of the constitution. The Constituent Assembly used Directive Principles to urge state action, but these are not mandatory. The government of India still has not standardized the civil code. The Special Marriage Act of 1954 created a religiously neutral option for interfaith couples or those not wanting to marry under one of the religious personal law systems, but familial or social pressures have impeded its widespread use. Even reforming personal laws has been an extraordinarily difficult political project. The tensions between personal laws and women’s rights, as well as the trajectories of related reform movements, have inspired much of the scholarship on personal laws (Solanki, 2011).
Shortly after independence, India’s first law minister, Dr. B. R. Ambedkar, fought for the reform of Hindu personal laws, particularly parts that perpetuated sex discrimination. His arguments “reveal Ambedkar’s commitment to the democratic struggles for women’s rights against the Brahmanical [upper caste] patriarchy of the state” (Rege, 2013, p. 219). In 1951, he resigned to protest the parliament’s failure to pass the Hindu Code Bill (Williams, 2006, pp. 104–105). Some limited Hindu reforms eventually took place. These bills contained so many concessions that Rina Verma Williams, in her book on postcolonial politics and personal laws, characterizes the idea of Hindu law being significantly reformed as a “myth” used to this day to criticize other communities for “lagging behind” (Williams, 2006, pp. 113, 119–120).
Although all Indian personal laws have elements that have been disadvantageous for women, Flavia Agnes’s nuanced analysis of each religion’s personal laws combats common perceptions that problems for women are rooted in regressive religious traditions, particularly Islam, in contrast to supposedly progressive government legislation, including the reformed Hindu code. Agnes challenges
a tendency to project all customary laws as anti-women and state enactments or official laws as pro-women. Contrary to popular belief, the history of women’s rights is not linear, with scriptural and customary laws forming one end of the scale and statutory reforms slowly and steadily progressing towards the other. The history is complex with various interactive forces constantly at play. Women’s rights are not only constrained by certain patriarchal norms, but are also shaped and moulded by several social, economic, and political underpinnings.
These complex histories and interactive forces call for more research on the various personal laws in India.
For example, after much pressure from Christian feminist activists, the Christian marriage law of 1872 was partially reformed in 2000. But beyond Flavia Agnes’s overview of all personal laws, Christian laws in India need more scholarly attention. The same can be said of Jewish laws. Even scholars comparing India and Israel’s approaches to religious family laws tend to ignore Jewish law in India (Lerner, 2014). Future research on these minorities could use legal historian Mitra Sharafi’s research on Parsis and their personal law as a model. She reveals that it was “invented by elite male Parsis of colonial Bombay, who excelled as lobbyists, lawyers, and judges,” and her contemporary overview includes ongoing debates over parentage, patrilinearity, and defining who is a Parsi (Sharafi, 2015, p. 305, 307).
The laws of the largest religious minority community, Muslims, have come under the most political fire from Hindu nationalist politicians, and much academic literature on personal law likewise focuses on Muslim personal law. A 1985 Indian Supreme Court case over maintenance for a divorced Muslim woman, Shah Bano, brought the issue of personal laws to national and scholarly attention (Mohammed Ahmed Khan v. Shah Bano Begum and Ors, 1985; Engineer, 1987; Hasan, 1999; Jenkins, 2000). In addition to disputes over maintenance, divorce cases have provoked other controversies. Because one’s religious community determines which personal laws one is subject to, conversions shortly before divorces have come under scrutiny to assess whether conversions are genuine or a ruse to secure a divorce or remarry under a different personal law system (Jenkins, 2001, p. 115). The pluralism of India’s family law has contributed to the scrutiny and regulation of religious conversion and community membership.
In 2017, Muslim divorce law made headlines again with an Indian Supreme Court decision banning “triple talaq.” Until recently, India has been one of only a few countries that allow this practice of instant divorce. The practice, abrogated by national governments in several Muslim-majority countries including Pakistan, Indonesia, and Bangladesh, allows a Muslim man to legally and instantly divorce his wife by stating the word “talaq” (the Arabic word for divorce) three times in one sitting. Some men, aided by technology, have even sought instant divorce via e-mail, text message, and social media (Ahmad, 2009, p. 56). Instant divorce or Talaq-e-Biddat allows for talaq to be repeated in one sitting instead of over a longer period. In India, religious interests including the All India Muslim Personal Law Board—a vocal nongovernmental entity that has frequently defended this set of laws against criticism or potential reforms—claimed that intervention by the state in this practice would be a violation of religious liberty. Other organizations of Muslims in India, such as the women’s advocacy group Bharatiya Muslim Mahila Andolan (BMMA), argued against this form of divorce to protect women’s rights.
In late August 2017, the Supreme Court in Shayara Bano v. Union of India ruled in favor of the government’s intervention in Muslim Personal Law on the basis that “triple talaq is not integral to religious practice and violates constitutional morality” (Shayara Bano v. Union of India and Others, 2017). The decision was made by a five-judge panel but was not unanimous, with two judges stating in the minority opinion that the issue was for the legislature to solve. Nevertheless, instant divorce in India is now unconstitutional. Many activists, politicians, and journalists hailed the decision as a triumph for women’s rights. The significance of the verdict lies in the court’s willingness to deem unconstitutional a practice that has historically been seen as a part of Muslim Personal Law. Monitoring the trajectory of this precedent is an important subject for future research. While even the All India Muslim Personal Law Board said it would not challenge the court’s decision, the overturning of triple talaq opens the door for further intervention by the state into religious matters.
Education and Religious Minority Institutions
The line between religion and state also blurs in the regulation of education. Of the 1.5 million schools in India, the central or individual state governments manage more than half (Ministry of Human Resource Development, 2016). While the constitution guarantees the educational rights of citizens, the responsibility for implementation is shared by the central, state, and local governments.
A number of constitutional provisions address the relationship between religion, the state, and education. Article 28(1) addresses religious instruction in schools and universities and states that “no religious instruction shall be provided in any educational institution if wholly maintained out of state funds.” Article 28(2) offers an exception for educational institutions administered by the state but established by a trust or endowment that requires religious instruction, but the following Article 28(3) grants citizens the right to not participate in religious instruction or attend religious worship in such institutions. One of the most contentious educational provisions is found in Article 30, which protects the rights of minorities to establish educational institutions based on either language or religion. Article 30 (in part) states:
(1) All minorities, whether based on religion or language, shall have the right to establish and administer educational institutions of their choice.
(2) The state shall not, in granting aid to educational institutions, discriminate against any educational institution on the grounds that it is under the management of a minority, whether based on religion or language.
While the constitution makes clear the right of minorities to establish and administer educational institutions, it is less clear as to who constitutes a minority.
Without an enshrined constitutional definition of “minority,” who qualifies as a minority is left to the courts, and judgments have been more contextual than consistent. Religious minority status not only affords a group constitutional rights and protections under the National Commission for Minorities but can also make minority individuals eligible for social benefits, thus making it a sought-after designation. The lack of a precise definition has been a point of contention among religious minorities (Jain, 2005, p. 2430). One such example is the Jain community, which although awarded minority status by several states, has advocated for decades for minority status at the national level. In Bal Patil v. Union of India (2005), the Supreme Court denied the petition put forth by a Jain organization to recognize the community as a “minority” under section 2(c) of the National Commission of Minorities Act 1992.
In that case, the court held that minority status should be determined by a group’s numerical proportion at the state rather than the national level and by their socioeconomic status within the state. In short, the court opined that the socioeconomic standing of the majority of the Jain minority group mitigated the need for official minority status. Furthermore, the court also questioned the legitimacy of Jains as a distinct religious community and instead, in its decision, subsumed Jainism under Hinduism (Jenkins, 2009, pp. 928–929). The giving and taking away of religious minority status as a regulatory mechanism is ambiguous and can become politicized. Nine years later, Jains gained minority status on the national level, joining five other nationally recognized minority religions, namely, Muslims, Christians, Sikhs, Buddhists, and Zoroastrians (Ministry of Minority Affairs, 2014). More recently, the Jewish community has initiated steps to gain minority status at the national level, but they still await a decision (Press Information Bureau Government of India, 2016).
Minority religious educational institutions, although guaranteed by the constitution to be self-administered, can also be subject to the actions of the state. State involvement in minority educational institutions has over time centered on the “increasing regulation of the management of state-aided and other schools and colleges, sometimes as a price for state aid, and the assimilation of state-aided and other schools into the general educational framework” (Dhavan, 1987, p. 233). An example of the state’s impact on minority educational institutions is the regulation of Aligarh Muslim University via its on-again-off-again minority status (Akhtar, 2014). Originally established in the 19th century as the Mohammedan Anglo-Oriental College, Aligarh Muslim University (AMU), was reconstituted by the state as Aligarh Muslim University by the Aligarh Muslim University Act of 1920. Its university powers, according to the act, include, among others, the ability “to promote especially the educational and cultural advancement of the Muslims of India” (Aligarh Muslim University Act, 1920).
The minority status of the institution came into question when petitioners to the Supreme Court in Azeez Basha v. Union of India (1968) argued that “the Muslim minority had established the University and had a right to administer it under Article 30 of the Constitution” (S. Azeez Basha and Anr. v. Union of India, 1968). The Supreme Court in response contended that the university was established not only by Muslims but also by the government via a statute (Azeez Basha at 664). Since 1967, the institution has lost and regained its minority status at different times through legal judgments and initiatives put forth by ruling political parties. The university is once again at risk of losing its minority status after the ruling government rescinded the support of minority status offered by its predecessor. The government withdrew its support on the basis that the university was established by a secular government and not by the Muslim community and therefore could not be considered a minority educational institution (Rajagopal, 2016). Such arguments based on legal technicalities show that while the constitution guarantees religious minorities the right to establish and administer educational institutions, the government, by regulating which educational institutions qualify, continues to wield authority over those protections.
Regulation of religious conversions comes up in at least two contexts: religious freedom acts and reservation policies. First, state-level “Freedom of Religion” statutes in several Indian states prohibit conversion via force, inducement, or allurement. The rules associated with these acts require reports to district magistrates and in some cases their prior permission for conversions. Second, the caste and religious certification needed to access “reservations” (affirmative action quotas for lower castes in legislatures, government employment, and higher education) mean conversions can be scrutinized and, in some cases, conversion can make one ineligible for reservations (Jenkins, 2003, pp. 35–38, 79–81, 111–123). Dalits are the lowest castes. The government lists them on a schedule (the British colonial term for official list), so recognized Dalit communities are officially known as scheduled castes (SCs). Scheduled caste individuals who convert to Christianity or Islam lose their SC status and are not eligible for reservations.
Laws regulating conversion preceded independence in the form of colonial public safety, apostasy, and conversion laws. Over a dozen princely states had laws regulating conversions (Ghose, 2001). For instance, Goldie Osuri discusses the Prince of Raigarh’s regulations on conversions in her book on colonial and postcolonial anticonversion laws and discourses. Chakradhar Singh ruled the small, northern princely state of Raigarh from 1925 to 1947. The 1936 Raigarh State Conversion Act was the precursor for several subsequent acts. Osuri’s analysis of the Raigarh Act traces the “twin discourses of order and protection” used to justify limits on conversion (Osuri, 2013, pp. 35, 29–35). Although these limits on conversion actually did more to protect the status quo, narratives about protecting supposedly naïve and vulnerable lower castes and tribes continued in the Constituent Assembly debates and were reflected in the conversion laws to follow.
After independence, the Constituent Assembly’s Advisory Committee on Fundamental Rights considered but ultimately rejected a constitutional clause against conversion by “coercion or undue influence” (Kim, 2003, pp. 43–50). Instead, they delegated this issue to future legislators (Constituent Assembly Debates, 1947; Granville, 1999, p. 344). From the 1960s to the 2000s legislators in several Indian states, including Odisha, Madhya Pradesh, Chhattisgarh, Arunachal Pradesh, Gujarat, and Himachal Pradesh, passed “Freedom of Religion” acts and related rules. Tamil Nadu’s 2002 act was repealed after only a few years, but most of these remain. In several other states, lawmakers proposed similar bills, but they have not yet become law.
These laws prohibit conversion by force, inducement, allurement, or fraudulent means. Registration rules associated with these laws range from requirements to report a conversion afterward to the district magistrate (as in Madhya Pradesh), to giving notice 30 days ahead (as in Himachal Pradesh, prior to a successful legal challenge), to obtaining prior permission from the district magistrate (as in Gujarat). Twenty-first-century anticonversion laws are championed not only by overtly Hindu nationalist politicians but also by other political elites, such as the Congress Party–led state government in Himachal Pradesh that passed that state’s act and rules in 2006 and 2007. Proposed national anti-conversion bills have failed, and state laws have faced legal challenges, reflecting the tension between these “freedom of religion” initiatives and the religious freedom clause of the Indian Constitution.
Banning conversion in the name of protecting religious freedom rests on the premise that certain converts are duped or incapable of exercising religious freedom. Critics of the “Freedom of Religion” acts limiting and monitoring conversions argue that the laws are paternalistic and discriminatory (Adcock, 2014; Coleman, 2008; Jenkins, 2008). Pratap Bhanu Mehta, for instance, writes, “Anti-conversion legislation is illegitimately paternalistic. It sets up the state as an agency that is in the business of saving our souls by putting it in judgement of our motives when we ‘choose’ our religion” (Mehta, 2003). The laws are discriminatory because they cast extra suspicion on the motives and agency of certain communities, namely lower castes (Dalits), tribes (Adivasis), and women by including higher fines for conversions of these communities in Odisha, Madhya Pradesh, Chhattisgarh, Gujarat, and Himachal Pradesh (and previously in Tamil Nadu).
Evangelical Fellowship of India and Act Now for Harmony and Democracy v. State of Himachal Pradesh (2012) challenged that state’s Freedom of Religion Act and Rules. The 2012 Himachal Pradesh High Court decision upheld the ban on conversions by force, fraud, or inducement but struck down the 1,000-rupee fine for not reporting one’s conversion 30 days in advance. In addition, the two-judge bench found unconstitutional the clause that converts do not need to report their conversions if they are converting to their “original” religion, on the grounds that this clause was discriminatory and violated Article 14: “The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India.”
Another policy arena in which conversions face scrutiny and regulation is that of reservations, which is a form of affirmative action. In order to qualify for various social welfare protections and benefits including reservations, which are quotas in government jobs, legislative seats, and higher education, Dalit communities must be officially listed as “Scheduled Castes.” In addition, individual members of a Scheduled Caste must be Hindu, Sikh, or Buddhist to qualify for SC reservations. Potential beneficiaries need to produce Scheduled Caste certificates, and if they are in reserved positions, they are supposed to notify the government if they convert to a religion, such as Islam or Christianity, which would disqualify them from their position. Dalit Christians and Muslims have pressed the government for decades to remove the religious limitations on eligibility for SC reservations but have not been successful, despite documented caste disparities in their communities (Jenkins, 2003, pp. 79–80, 111–126).
In a comparative assessment of the impact of “judicializing religious freedom,” a study of eighty High Court and Supreme Court decisions related to conversions from 1950–2006 in India showed that 42% were about affirmative action, 38% about personal laws, and 15% about religious propagation. Of the affirmative action cases, over half resulted in stripping Muslim or Christian converts of welfare benefits, but Hindu converts found it relatively easy to regain them (Schonthal, Moustafa, Nelson, & Shankar, 2016, p. 973). More recently, a 2015 Supreme Court decision about the grandson of Dalits who had converted to Christianity allowed him to “regain” his SC status by converting to Hinduism, even generations after it was lost (K. P. Manu v. Chairman, Scrutiny Committee for the Verification of Community Certificate, 2008). The grandson of Christian converts, K. P. John converted to Hinduism in 1984 at age 24, changed his name to K. P. Manu, and received a community certificate documenting that he had changed from Christian Pulaya to Hindu Pulaya. The Scrutiny Committee did not accept that he was a member of the Hindu Pulaya community and removed his SC status. The High Court of Kerala upheld their decision. K. P. Manu appealed. The Supreme Court overruled the High Court by arguing that his caste could be resurrected generations later via reconversion to Hinduism. The decision selectively linked and delinked caste and religion via an “eclipse” metaphor, in which caste (the sun) was for a time in the shadow of Christianity but emerged upon conversion to Hinduism. This narrative enabled the judges to materially reward a convert to Hinduism by granting him SC status, while acknowledging but disregarding caste discrimination within Christian communities, thus avoiding the implication that he or his family merited SC reservations even when they were Christians.
Several pending cases, including one Dalit Muslim plaintiff and several Dalit Christian plaintiffs, demand SC status for these communities. They are asking for the removal of religion from the definition of who is an SC. Dalit Christian and Muslim litigation and social movement petitions have sparked various government inquiries, including “Dalits in the Muslim and Christian Communities,” a report documenting caste discrimination and disparities among Muslims and Christians, prepared for the National Commission for Minorities (Deshpande & Bapna, 2008). The cases remain in limbo at the Supreme Court level (Jenkins, 2019).
Religious Speech and Protections Against Outraging Religious Feelings
Regulations of religious appeals in political campaigns and limitations on outraging “religious feelings,” even if defended as a means to keep the peace in a multireligious society, spark disputes and debates in India. Article 123 of the 1951 Representation of the People Act (RPA) limited religious appeals in political campaigns to prevent separatist or communal political mobilizations in the newly independent India. Under the RPA, corrupt practices in elections include: appealing for votes on the grounds of religion or religious symbols, inducing voters to fear divine displeasure or spiritual censure, or promoting enmity on the grounds of religion. In addition, the Election Commission’s Model Code of Conduct—which unlike the RPA is monitored by the Election Commission rather than adjudicated by the courts—does not allow candidates to “create mutual hatred or cause tension between different castes and communities, religious or linguistic” (Sen, 2010, p. 15).
Ronojoy Sen (2010) brilliantly synthesized many of the cases and Supreme Court rulings stemming from the RPA and religion in Indian elections. These rulings address several issues, such as Sikh and Hindu religious leaders endorsing candidates, Muslim candidates’ statements regarding their religion or that of their rival candidates, religious or ethnic agendas of political parties (which are allowed) and implications for permitted election discourse, and the choice of party symbols for ballots. Some of the most controversial rulings in this area have become known as the Hindutva judgments. These seven decisions in 1996 allowed some electoral appeals to Hindu identity, based on the argument that references to Hinduism or Hindutva in elections are not necessarily religious appeals but could refer to the Indian “way of life” (Sen, 2010, pp. 160–164). Hindutva is a term originated by Hindu nationalists and subsequently equated with the ideology of the Hindu right (Nussbaum, 2007, pp. 156–164).
The scope of the RPA was central to Abhiram Singh v. C. D. Commachen, and in a 4–3 decision, the Supreme Court of India ruled in 2017 that appealing for votes on the basis of religion (or race, caste, community, or language) is a corrupt practice that can disqualify a winning candidate from taking office even if the appeal is not about the candidates’ or their rivals’ own identities (Abhiram Singh v. C. D. Commachen [Dead] by Lrs. and Ors, 2017; Narayan Singh v. Sunderlal Patwa and Ors, 2017). By seeming to limit any appeals to these social categories, this ruling troubled the dissenting justices, who anticipated that the majority decision could be used to ban dialogues about deprivations along any of these societal lines. In the words of Justice D. Y. Chandrachud, “How can this be barred from being discussed in an election? Religion, caste and language are as much a symbol of discrimination imposed on large segments of our society” (Rajagopal, 2017). The parameters of what an impermissible religious appeal is will be a sphere of religious regulation to watch.
A statute of the Indian penal code (295-A), which originated under colonialism in 1927 but persists in postcolonial law, outlaws “deliberate and malicious acts, intended to outrage religious feelings of any class by insulting its religion or religious beliefs.” This regulation, initiated to control a colony, became a tool to keep the peace in postcolonial India. But increasingly Hindu nationalist activists use it to harass and threaten people who write about Hinduism in ways that challenge dominant or upper-caste Hindu perspectives (Truschke, 2017). Noted Tamil novelist Perumal Murugan’s books, including Seasons of the Palm, Pyre, and One Part Woman (Murugan, 2014, 2016, 2017a), address caste and gender issues in direct and compelling detail. Hindu nationalists accused him of outraging religious feelings, threatening him to the point that he publically announced in 2015 his decision to give up writing. He nevertheless went on to publish a book of essays by writers from over 20 castes in Tamil Nadu (Murugan, 2017b). A lawsuit against an eminent American scholar of Hinduism, Wendy Doniger, and her book The Hindus: An Alternative History (2009), prompted Penguin Books India to stop publishing—and destroy remaining copies of—Doniger’s book in India (Public Radio International, 2016). Doniger has also faced death threats.
Portrayals of religious epics, figures, and images in film and television are also politically fraught (Rajagopal, 1994). In 2017, activists from the Rajput community (a Hindu caste) sued the makers of the Bollywood film Padmaavati (subsequently titled Padmaavat) under several statutes, including 295-A, before it was even completed or released. Threats of death or physical harm to its actors and director precipitated a title change and possibly directorial adjustments to the content of the film itself to avoid retribution. Based on news accounts that the characters of a Rajput princess and a Muslim king would be in a song or love scene together, the Rajput litigants argued that the film hurt their feelings, but the Rajasthan High Court and Indian Supreme Courts found that Rajputs were portrayed in a heroic light (Manohar Lal Sharma v. Sanjay Leela Bhansali & Ors, 2017; Sanjay Leela Bhansali & Ors. v. State & Ors, 2018). Noting that it was the Muslim character who was depicted as “beast,” an Economic and Political Weekly editorial observed that “only when you have the power, can you afford to be hurt and to show it” and critiqued “this game of ‘hurt sentiments’ that includes casual communalism, entrenched patriarchy, and caste pride” (Economic and Political Weekly, 2017).
While scholars, authors, and filmmakers have previously faced harassment and attacks for their depictions of religious or social issues, the recent use of a colonial-era regulation to take legal action against people for outraging religious feelings illustrates how the state regulation of religion in India can pave the way for additional threats from society. These legal actions also show how religious regulations can repress dissenting or nondominant narratives and groups. The growing number of regulations pertaining to cows, considered holy by many (especially upper-caste) Hindus, alongside increasing attacks on Muslims and lower-caste communities in the name of cow protection, are other examples of the repression that can be triggered by regulation (Nadal, 2016).
The framers of the constitution extensively debated the issue of cow slaughter. While some called for the ban of cow slaughter on religious grounds, others argued in favor of limiting cow slaughter and made arguments on economic grounds. These types of arguments extend back to colonial-era debates over cow protection (Adcock, 2010). In the Constituent Assembly, the arguments about the economic utility of limiting cow slaughter won, yet various scholars acknowledge that the underlying foundation for protecting cows in India is religion (Chigateri, 2011, pp. 142–146; Chiriyankandath, 2000, p. 16).
The religious sentiment underlying cow protection has at different times been used as a political tool to accommodate majoritarian sensibilities and for electoral gains. Even Mughal emperors Akbar and Aurangzeb, in the mid-16th and 17th centuries, respectively, implemented temporary bans on cow slaughter to accommodate other groups (Jha, 2002, p. 18). In the 19th century, the prohibition of cow slaughter as a movement emerged. While the movement stayed clear from advocating against cow slaughter on religious grounds, the activities of the movement did have an undeniable anti-Muslim tone (Adcock, 2010, pp. 297–300). More recently, political parties have engaged in cow protection rhetoric, including a call for a national ban on cow slaughter. Amrita Basu notes that the Bharatiya Janata Party, in close collaboration with Hindu right-wing organizations, has pursued three Hindu nationalist commitments—namely educational reform, cow protection, and religious conversion—in ways that have discriminated against minorities (Basu, 2015, p. 301).
Article 48 of the Indian Constitution, a directive principle of state policy, supplies the legislative foundation for the prohibition of cow slaughter:
The State shall endeavour to organise agriculture and animal husbandry on modern and scientific lines and shall, in particular, take steps for preserving and improving the breeds, and prohibiting the slaughter, of cows, and other milch and draught cattle.
(Constitution of India, Article 48)
Despite the linkage of cow protection and economic concerns in the constitution, on the whole, states have used the license provided in Article 48 to restrict the slaughter of cows based on religion (Chigateri, 2011, pp. 137–159). However, state laws vary significantly, with some states completely banning the slaughter of all cattle and others instituting partial bans. And still others, like the state of Kerala with its large Muslim and Christian populations, have no ban at all. State laws vary on whether one can slaughter, consume, possess, or transport cows or the flesh of cows, and what a cow is (whether the term encompass bulls, bullocks, heifers, calves, oxen, etc.).
The constitutional protection of cows has been challenged over the years and remains a contentious issue. The constitutional validity of state laws banning cow slaughter has been questioned and brought before the Supreme Court by various groups representing both economic and religious interests. In Mohd Hanif Quareshi & Ors. v. State of Bihar (1958), Muslim cattle dealers, butchers, and vendors from Bihar, Madhya Pradesh, and Uttar Pradesh unsuccessfully argued that the acts from these states banning cow slaughter violated their fundamental rights. These rights included the right to equality, the right to practice any profession, and the right to freedom of religion (Chigateri, 2011, p. 147). More recently, the issue of cow protection has taken a violent turn, with self-appointed cow vigilantes committing heinous attacks against Muslims, based on rumors that they consumed beef or engaged in the sale or purchase of cows (Raj, 2016). As in riots in the state of Gujarat in 2002, this antiminority violence stems from the interplay between society and state action (or strategic inaction) and appears to have an electoral logic (Dhattiwala & Biggs, 2012). The increased outbreaks of violence prompted the Supreme Court to intervene in response to a private petition and order the central government to direct each state to appoint a senior officer to curb the violence (Ananthakrishnan, 2017).
Key problems motivating extant research on the regulation of religion in India include perennial tensions over the nature of Indian secularism, religious personal laws, minority educational institutions, religious conversion, limitations on religious speech in political campaigns and on words or actions that outrage religious feelings, and antiminority violence. Further research should continue to document the regulations themselves, their roots, and the ways they are (or are not) implemented in the 21st century. Within India’s federal system, tensions between constitutional law and state laws as well as different state regulations or degrees of implementation merit further comparative scrutiny. Particularly urgent is further research on the varied impact of regulations on the many different religious communities in India, as well as on groups within each community, which vary tremendously due to gender, caste, region, ethnicity, and other factors. Finally, societal responses to religious regulations in the form of compliance, resistance, vigilantism, litigation, or protest are a promising area for future research within this fascinating field of study.
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