Wednesday, January 23, 2008

A critical analysis of recent anti-conversion legislation: Focus on the SAHRDC

Before getting to the substance of this post, I want to join Vikram and V. Venkatesan in welcoming our new contributors. The success of this blog depends on regular contributors and commentators (and a healthy debate among them), and its great to see the heightened activity on the blog at the start of the new year. Let us hope that this trend continues. Though this continues to be a hectic time at work for me, I am inspired by the recent enthusiasm exhibited on the blog, and this post is the result. I hope other contributors (some of whom have remained silent for what seems like an eternity) will be similarly inspired.

An area that I follow closely in my own research is that of secularism, especially the evolving model of secularism in
India in the aftermath of the rise of the BJP as a national party, as exhibited in legal developments. In recent years, several states (especially those where the BJP is in power, but even those ruled by non-BJP parties) have experimented with laws on issues that have either a direct or incidental impact on religion. We have already seen how the anti-cow slaughter laws passed by BJP governments have resulted in a drastic revision of some basic elements of the Indian legal model of secularism (I refer here to the over-ruling of the Mohd. Qureshi case by a seven-judge Constitution Bench headed by Chief Justice Lahoti, which was briefly adverted to in this previous post).

One such trend is the recent enactment of anti-conversion laws by several states. As is somewhat typical in our country, much of what passes for legal discussion and debate remains focused on the output of the Supreme Court (a charge that most contributors to this blog, myself included, are equally guilty of). Fortunately, there are at least some organisations that focus on these legislative changes, which could have momentous consequences.

A recent issue of the EPW carries an excellent article by the South Asia Human Rights Documentation Centre (SAHRDC), which focuses on several such anti-conversion laws. The article lists out the germane provisions in a law that was recently passed by the legislative assembly in Himachal Pradesh, which in turn is similar to laws passed in Orissa, Gujarat, Chattisgarh, Madhya Pradesh, Rajasthan and Arunachal Pradesh. It then analyses these laws against the backdrop of applicable constitutional provisions (including an analysis of debates in the Constituent Assembly), Supreme Court precedents, and the relevant international law. The article concludes as follows:

It is clear that the anti-conversion legislations [sic], as they stand, pose serious challenges to both the intrinsic structure of Indian society and the international perception of the country’s legal system. It is difficult to escape the conclusion that these legislations [sic] are primarily motivated by a religious ideology and will detrimentally impact religious minorities. Should the courts acquiesce in this emasculation of tolerance and secularism amid an increasing number of such laws passed by different state governments, Indian democracy and its founding principles of equality and tolerance will be seriously weakened.

The issue in general, and the specific arguments raised by SAHRDC, deserve closer scrutiny and analysis.

The institutional author of the piece, SAHRDC, is an interesting NGO, with a long track record of publications on issues of human rights in the South Asian region. Though the website of SAHRDC is parsimonious in providing details about the organizational structure and people involved, it does provide links to publications that bear the promise of containing rich information on a wide variety of topics.

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