This blog has been updated on Jan 19, 2021 to also cover the Madhya Pradesh Ordinance which was promulgated earlier in the month. The comparison table has also been revised accordingly.
On November 27, 2020, the Uttar Pradesh (UP) Prohibition of Unlawful Conversion of Religion Ordinance, 2020 was promulgated by the state government. This was followed by the Madhya Pradesh (MP) government promulgating the Madhya Pradesh Freedom of Religion Ordinance, 2020, in January 2021. These Ordinances seek to regulate religious conversions and prohibit certain types of religious conversions (including through marriages). The MP Ordinance replaces the MP Dharma Swatantra Adhiniyam, 1968, which previously regulated religious conversions in the state. Few other states, including Haryana and Karnataka, are also planning to introduce a similar law. This blog post looks at existing anti-conversion laws in the country and compares the latest UP and MP Ordinances with these laws.
Anti-conversion laws in India
The Constitution guarantees the freedom to profess, propagate, and practise religion, and allows all religious sections to manage their own affairs in matters of religion; subject to public order, morality, and health. To date, there has been no central legislation restricting or regulating religious conversions. Further, in 2015, the Union Law Ministry stated that Parliament does not have the legislative competence to pass anti-conversion legislation. However, it is to be noted that, since 1954, on multiple occasions, Private Member Bills have been introduced in (but never approved by) the Parliament, to regulate religious conversions.
Over the years, several states have enacted ‘Freedom of Religion’ legislation to restrict religious conversions carried out by force, fraud, or inducements. These are: (i) Odisha (1967), (ii) Madhya Pradesh (1968), (iii) Arunachal Pradesh (1978), (iv) Chhattisgarh (2000 and 2006), (v) Gujarat (2003), (vi) Himachal Pradesh (2006 and 2019), (vii) Jharkhand (2017), and (viii) Uttarakhand (2018). Additionally, the Himachal Pradesh (2019) and Uttarakhand legislations also declare a marriage to be void if it was done for the sole purpose of unlawful conversion, or vice-versa. Further, the states of Tamil Nadu (2002) and Rajasthan (2006 and 2008) had also passed similar legislation. However, the Tamil Nadu legislation was repealed in 2006 (after protests by Christian minorities), while in case of Rajasthan, the bills did not receive the Governor’s and President’s assent respectively. Please see Table 2 for a comparison of anti-conversion laws across the country.
In November 2019, citing rising incidents of forced/fraudulent religious conversions, the Uttar Pradesh Law Commission recommended enacting a new law to regulate religious conversions. This led the state government to promulgate the recent Ordinance in 2020. Following UP, the MP government also decided to promulgate an Ordinance in January 2021 to regulate religious conversions. We discuss key features of these ordinances below.
What do the UP and MP Ordinances do?
The MP and UP Ordinances define conversion as renouncing one’s existing religion and adopting another religion. However, both Ordinances exclude re-conversion to immediate previous religion (in UP), and parental religion (in MP) from this definition. Parental religion is the religion to which the individual’s father belonged to, at the time of the individual’s birth. These Ordinances prescribe the procedure for individuals seeking to undergo conversions (in the states of UP and MP) and declare all other forms of conversion (that violate the prescribed procedures) illegal.
Procedure for conversion: Both the Ordinances require: (i) persons wishing to convert to a different religion, and (ii) persons supervising the conversion (religious convertors in UP, and religious priests or persons organising a conversion in MP) to submit an advance declaration of the proposed religious conversion to the District Magistrate (DM). In both states, the individuals seeking to undergo conversion are required to give advance notice of 60 days to the DM. However, in UP, the religious convertors are required to notify one month in advance, whereas in MP, the priests or organisers are also required to notify 60 days in advance. Upon receiving the declarations, the DMs in UP are further required to conduct a police enquiry into the intention, purpose, and cause of the proposed conversion. No such requirement exists in the MP Ordinance, although it mandates the DM’s sanction as a prerequisite for any court to take cognisance of an offence caused by violation of these procedures.
The UP Ordinance also lays down a post-conversion procedure. Post-conversion, within 60 days from the date of conversion, the converted individual is required to submit a declaration (with various personal details) to the DM. The DM will publicly exhibit a copy of the declaration (till the conversion is confirmed) and record any objections to the conversion. The converted individual must then appear before the DM to establish his/her identity, within 21 days of sending the declaration, and confirm the contents of the declaration.
Both the Ordinances also prescribe varying punishments for violation of any procedure prescribed by them, as specified in Table 2.
Prohibition on conversions: Both, the UP and MP Ordinances prohibit conversion of religion through means, such as: (i) force, misrepresentation, undue influence, and allurement, or (ii) fraud, or (iii) marriage. They also prohibit a person from abetting, convincing, and conspiring to such conversions. Further, the Ordinances assign the burden of proof of the lawfulness of religious conversion to: (i) the persons causing or facilitating such conversions, in UP, and (ii) the person accused of causing unlawful conversion, in MP.
Complaints against unlawful conversions: Both Ordinances allow for police complaints, against unlawful religious conversions, to be registered by: (i) the victim of such conversion, (ii) his/her parents or siblings, or (iii) any other person related to them by blood, and marriage or adoption. The MP Ordinance additionally permits persons related by guardianship or custodianship to also register a complaint, provided they take the leave of the court. Further, the MP Ordinance assigns the power to investigate such complaints to police officers of the rank of Sub-Inspector and above.
Marriages involving religious conversion: As per the UP Ordinance, a marriage is liable to be declared null and void, if: (i) it was done for the sole purpose of unlawful conversion, or vice-versa, and (ii) the religious conversion was not done as per the procedure specified in the Ordinance. Similarly, the MP Ordinance declares a marriage null and void, if: (i) it was done with an intent to convert a person, and (ii) the conversion took place through any of the prohibited means specified under the Ordinance. Further, the MP Ordinance explicitly provides for punishment (as specified in Table 2) for the concealment of religion for the purpose of marriage.
Right to inheritance and maintenance: The MP Ordinance additionally provides certain safeguards for women and children. It considers children born out of a marriage involving unlawful religious conversion as legitimate and provides for them to have the right to property of only the father (as per the law governing the inheritance of the father). Further, the Ordinance provides for maintenance to be given to: (i) a woman whose marriage is deemed unlawful under the Ordinance, and (ii) her children born out of such a marriage.
Punishment for unlawful conversions: Both the MP and UP Ordinances provide for punishment for causing or facilitating unlawful religious conversion, as specified in Table 1. Also, all offences under both Ordinances are cognisable and non-bailable.
Additionally, under the UP Ordinance, the accused will be liable to pay compensation of up to five lakh rupees to the victim of conversion and repeat offences will attract double the punishment specified for the respective offence. However, under the MP Ordinance, each repeat offence will attract punishment of a fine, and imprisonment between five and 10 years. Further, it provides for the Session Court to try an accused person, at the same trial, for: (i) an offence under this Ordinance, and (ii) also for other offences he has been charged with, under the Criminal Procedure Code, 1973.
Table 1: Punishments prescribed under the UP and MP Ordinances for offences by individuals for causing/facilitating the conversion
|
Punishment |
Uttar Pradesh |
Madhya Pradesh |
|
Mass conversion (conversion of two or more persons at the same time) |
||
|
Term of imprisonment |
3-10 years |
5-10 years |
|
Fine Amount |
Rs 50,000 or more |
Rs 1,00,000 or more |
|
Conversion of a minor, woman, or person belonging to SC or ST |
||
|
Term of imprisonment |
2-10 years |
2-10 years |
|
Fine Amount |
Rs 25,000 or more |
Rs 50,000 or more |
|
Any other conversion |
||
|
Term of imprisonment |
1-5 years |
1-5 years |
|
Fine Amount |
Rs 15,000 or more |
Rs 25,000 or more |
If any of the above three offences are committed by an organisation, under the UP Ordinance, the registration of the organisation is liable to be cancelled and grants or financial aid from the state government is liable to be discontinued. Under the MP Ordinance, only the registration of such organisations is liable to be cancelled.
* - It is not clear if the Chhattisgarh Law is currently in force or not.
** - Madhya Pradesh originally enacted a law in 1968. And has now replaced it with an Ordinance in 2021.
Note: For Odisha, Jharkhand, and Uttarakhand, some of the penalties have been specified in the Rules published under their respective Acts. For the rest of the states, the penalties have been specified in the respective Acts itself.
In November 2017, the 15th Finance Commission (Chair: Mr N. K. Singh) was constituted to give recommendations on the transfer of resources from the centre to states for the five year period between 2020-25. In recent times, there has been some discussion around the role and mandate of the Commission. In this context, we explain the role of the Finance Commission.
What is the Finance Commission?
The Finance Commission is a constitutional body formed every five years to give suggestions on centre-state financial relations. Each Finance Commission is required to make recommendations on: (i) sharing of central taxes with states, (ii) distribution of central grants to states, (iii) measures to improve the finances of states to supplement the resources of panchayats and municipalities, and (iv) any other matter referred to it.
Composition of transfers: The central taxes devolved to states are untied funds, and states can spend them according to their discretion. Over the years, tax devolved to states has constituted over 80% of the total central transfers to states (Figure 1). The centre also provides grants to states and local bodies which must be used for specified purposes. These grants have ranged between 12% to 19% of the total transfers.
Over the years the core mandate of the Commission has remained unchanged, though it has been given the additional responsibility of examining various issues. For instance, the 12th Finance Commission evaluated the fiscal position of states and offered relief to those that enacted their Fiscal Responsibility and Budget Management laws. The 13th and the 14th Finance Commissionassessed the impact of GST on the economy. The 13th Finance Commission also incentivised states to increase forest cover by providing additional grants.
15th Finance Commission: The 15th Finance Commission constituted in November 2017 will recommend central transfers to states. It has also been mandated to: (i) review the impact of the 14th Finance Commission recommendations on the fiscal position of the centre; (ii) review the debt level of the centre and states, and recommend a roadmap; (iii) study the impact of GST on the economy; and (iv) recommend performance-based incentives for states based on their efforts to control population, promote ease of doing business, and control expenditure on populist measures, among others.
Why is there a need for a Finance Commission?
The Indian federal system allows for the division of power and responsibilities between the centre and states. Correspondingly, the taxation powers are also broadly divided between the centre and states (Table 1). State legislatures may devolve some of their taxation powers to local bodies.
The centre collects majority of the tax revenue as it enjoys scale economies in the collection of certain taxes. States have the responsibility of delivering public goods in their areas due to their proximity to local issues and needs.
Sometimes, this leads to states incurring expenditures higher than the revenue generated by them. Further, due to vast regional disparities some states are unable to raise adequate resources as compared to others. To address these imbalances, the Finance Commission recommends the extent of central funds to be shared with states. Prior to 2000, only revenue income tax and union excise duty on certain goods was shared by the centre with states. A Constitution amendment in 2000 allowed for all central taxes to be shared with states.
Several other federal countries, such as Pakistan, Malaysia, and Australia have similar bodies which recommend the manner in which central funds will be shared with states.
Tax devolution to states
The 14th Finance Commission considerably increased the devolution of taxes from the centre to states from 32% to 42%. The Commission had recommended that tax devolution should be the primary source of transfer of funds to states. This would increase the flow of unconditional transfers and give states more flexibility in their spending.
The share in central taxes is distributed among states based on a formula. Previous Finance Commissions have considered various factors to determine the criteria such as the population and income needs of states, their area and infrastructure, etc. Further, the weightage assigned to each criterion has varied with each Finance Commission.
The criteria used by the 11th to 14thFinance Commissions are given in Table 2, along with the weight assigned to them. State level details of the criteria used by the 14th Finance Commission are given in Table 3.
Grants-in-Aid
Besides the taxes devolved to states, another source of transfers from the centre to states is grants-in-aid. As per the recommendations of the 14th Finance Commission, grants-in-aid constitute 12% of the central transfers to states. The 14th Finance Commission had recommended grants to states for three purposes: (i) disaster relief, (ii) local bodies, and (iii) revenue deficit.
