Haryana’s anti-conversion Bill hits legal hurdle

‘It’s in violation of constitutional scheme of private liberty and privacy of an individual; against the constitutional scheme in terms of fundamental duties enshrined under Article 51-A of the Constitution and against provisions of the Special Marriage Act, and contains contradictory and legally weak provisions’

The much-flaunted Freedom of Religion Bill piloted by the BJP-led Haryana government has hit a legal hurdle with the state government’s law and legislative secretary raising serious objections on the proposed legislation.

The Bill which was planned for being introduced during the recently-concluded assembly session could not be tabled due to concerns raised by the law and legislative secretary. (Getty Images)

The proposed legislation, which state home minister Anil Vij likes to term a law against ‘Love-Jihad’, is primarily aimed at stopping forced religious conversions.

The Bill which was planned for being introduced during the recently-concluded assembly session could not be tabled due to concerns raised by the law and legislative secretary or legal remembrancer (LR).

The law and legislative secretary, who is tasked with legally vetting the draft Bill, said that not only it was in violation of constitutional scheme of private liberty and privacy of an individual; against the constitutional scheme in terms of fundamental duties enshrined under Article 51-A of the Constitution and against the provisions of Special Marriage Act, it also contains contradictory and legally weak provisions.

Vij said objections raised by the law secretary were clarified by the advocate general.

Haryana advocate general BR Mahajan said he has answered issues raised by the law secretary and recommended that the Bill can be tabled in the Haryana assembly.

The law secretary, however, does not seem convinced with the clarifications given by the advocate general. In a March 16 communication, the law secretary said that observations raised by the law and legislative department regarding the Bill have not been dealt properly with reasoning.

“Some observations of the department were not dealt with in depth and only general passing observations were made by the office of advocate general,” the note reads.

OBJECTIONS RAISED BY LAW DEPT

The law secretary, in the note, has said that the substance material in the proposed draft Bill is contrary to the constitutional scheme, which confers every individual the fundamental right to profess, practice and propagate his religion, as it provided for penal provision of professing, practising and propagating another religion without the permission of a district magistrate even in the non-eventuality of marriage.

The law department said that since the fundamental duties enshrined in the Constitution provided for promotion of harmony and the spirit of brotherhood among people transcending all religious, linguistic and regional diversities, the proposed Bill was against this constitutional scheme as well as against provisions of the Special Marriage Act which was enacted to enable marriages of couples of different religions.

‘VIOLATES LIBERTY, PRIVACY OF INDIVIDUALS’

“The proposed Bill violates constitutional scheme of private liberty and privacy of an individual. The fundamental right to privacy as envisaged under Article 21 protects an individual’s ability to make choices and decisions that are intimate. A Supreme Court’s nine-judge landmark judgment upheld the fundamental right to privacy and clearly said that it is upon an individual how she wanted to exercise her freedom to make those personal choices. Whether one’s partner would be of the same faith or not, is a private decision,” the law secretary said.

Objecting to a provision in the Bill which provided that return of any person to his ancestral religion shall not be deemed to be conversion, the law secretary said that this expresses bias and arbitrariness and this provision may not withstand legal scrutiny.

The law secretary said that another provision providing for filing of complaint by the parents or siblings or with the leave of the court by any other person even if the conversion is that of an adult, conveyed bad legal sense.

Another clause of the Bill, which shifts the burden of proof upon the accused to prove that conversion is not fraudulent, is against the spirit of fundamental premises of Indian Jurisprudence and Evidence Act, the note said.

Also, the proposed Bill nowhere has a provision for appeal which is against the principles of natural justice, the law secretary said.