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Can't Recommend Legislature To Frame Anti-Conversion Law In Absence Of Specific Allegations Of Forced Religious Conversions: Delhi High Court

Padmakshi Sharma
25 July 2022 10:37 AM GMT
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The Delhi High Court on Monday orally said it cannot direct the government to frame an anti-religious conversion law, especially in the absence of any material indicating instances of forced conversions.

A division bench comprising Justices Sanjeev Sachdeva and Tushar Rao Gedela was hearing a PIL filed by Advocate Ashwini Upadhyay, seeking directions on Centre and Delhi government to frame laws prohibiting forced religious conversions, which, as per him had become a serious problem in Delhi.

The court stated that allegations, if true, are very serious. However, it added that said allegations are "unsubstantiated claims" based on mere apprehension and action could only be taken on the same unless some material was bought on record to substantiate the same.

At the outset, Advocate Upadhyay submitted that organisations, often funded by foreign nations, lure individuals to undergo religious conversion by promising them treatments for various ailments such as cancer, or knee pain in certain circumstances. The petitioner submitted that he could provide the bench with various videos establishing the same. The petitioner argued that due to the lack of any laws or guidelines on the subject of forced religious conversion, Delhi had become "a safe haven for conversion mafia."

However, the bench interjected to the same stating that in order to establish the averments made, the petitioner will have to place statistics and other such material on record. The bench noted that the documents placed on record by the petitioner only included newspaper reports and matters pending before different courts.

The bench stated that no cognisance could be taken of newspaper articles as the same did not represent facts and were unsupported. The court also noted that it was not mandatory to frame law on each subject. It stated that in order to frame laws on a subject, there needs to exist a problem which makes it necessary for a law to be framed in that area.

To this, the petitioner stated that even the Chief Minister of Delhi had agreed that a law should be made against forced religious conversions. The bench then opined that if the legislature itself recognises the problem, it should frame a law regarding the same and a mandate from the Court was not necessary for the same. The court stated that–

"If the government is conscious about the issue, it can frame a law. It is in the domain of legislature...Court cannot direct the government to make law, it can only recommend...If you want the court to recommend, you have to make a case for the same. Something more than just your apprehension. Are you in a position of filing an affidavit that you witnessed something like this happening?"

The court further stated that there was no quarrel about the fact that the court can advise the legislature to make laws when necessary, however, the petitioner was asking for the court to prohibit all conversion forced as null without informing the court of any instance where forced conversion had happened.

The petitioner stated that there were various cases pending before the courts regarding forced conversion. However, all such cases were filed under Section 295 (Injuring or defiling place of worship) of the IPC. To this, the court stated that the petitioner had an option to exercise his rights under the Right to Information Act and produce data or statistics which showed that a number of cases filed under Section 295 were internally matters of forced religious conversion.

The petitioner also referred to the 2010 Law Commission of India's report on Conversion/reconversion to another religion. He stated that as per this report, even if law is not made regarding conversion, the recommendation can be implemented through executive order. Further, the case of Sarla Mudgal v. Union of India was cited by the petitioner to quote that–

"The Government may also consider feasibility of appointing a Committee to enact Conversion of Religion Act, immediately, to check the abuse of religion by any person."

Here, the court opined that the Sarla Mudgal case was not regarding the prohibition of Conversion and the Law Commission report merely recommended and did not direct the State to make any law on forced religious conversion. The court asked the petitioner to bring relevant material on record to prove his averments by filing an additional affidavit regarding the same.

The matter is now listed for 31st August 2022.

Also Read: Religious Conversion Not Prohibited Unless Forced, Every Person Has Right To Choose Religion: Delhi High Court

CASE TITLE: ASHWINI KUMAR UPADHYAY v. UNION OF INDIA & ORS.

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