On 27th November 2020, the Governor of the Indian state of Uttar Pradesh promulgated an anti-religious-conversion ordinance. This ordinance prohibits all unlawful conversions from one religion to another which take place by employment of any one or more than one of the following methods – misrepresentation, force, undue influence, allurement or by any fraudulent means or by marriage. The law attempts to curb the growing instances of ‘love-jihad’, which, as a theory, alleges that Muslim men dupe and fraudulently marry Hindu women only to convert them into Islam.
The concept has gained significant political currency over the years and as Pratap Bhanu Mehta, a leading academic suggests, is a demographic anxiety. The legislation continues to face tremendous heat, including from the liberal quarters as they allege that the legislation curbs an individual’s agency to choose her religion freely and criminalizes choice. For present purposes, I am not even remotely inclined to raise doubts or cast aspersions on the ruling government’s obscure objectives of fueling a majoritarian version of politics. The original dispute is much finer and equally deeper.
The popular position on the Indian religious freedom right is, to put it bluntly, ‘specious’. Some counteroffensive efforts here and there are always underway questioning the State’s intrusion in the public’s mode of religious freedom. However, most of them suffer the blemish of being ‘knee-jerk’ in their original spirit. Consequently, through this commentary, my attempt would be to initiate a discussion towards a substantive theory of religious freedom, which is reflective of the practitioner’s position when pitted against the State’s interferential authority. I do not seek to engage with the constitutionality considerations of the legislation as that would be a fairly surficial (and mundane) solution.
Instead, I undertake a simple analysis of the entire regime and respond with a normative descriptive framework. Accordingly, the first step is to determine what is at stake when the State dictates the terms of an individual’s religious freedom. My response to this inquiry is ‘autonomy’. I construct a more nuanced version of the same and use it to ask what are the permissible justifications to interfere with autonomy. This response is, in turn, premised on what John Rawls has called as overlapping consensus.
Testing Justificatory Claims in a Democratic Polity
A legitimate use of political power involves what Rawls understands as a political conception of justice in a liberal democratic polity. At the heart of this political conception of justice lies what Rawls has famously called as brokering an overlapping moral consensus.
In an overlapping consensus, all citizens endorse a core set of laws for different reasons. In normative terms, each citizen supports a political conception of justice for reasons internal to her own comprehensive doctrine. For instance, the Rawlsian version of overlapping moral consensus would ensure that each individual supports the right to religious freedom for all – it is however a different fact that each individual will support such right for a reason intrinsic and best known only to her.
This endorsement, as he envisages, is imperative for maintaining stability and ensuring that laws made by the State are not complied with only out of compulsion or due to fear of external threat. At the cost of too much simplification, I term that this Rawlsian approach is loosely teleological in most senses. This is primarily because irrespective of the foundational reason, an unhindered realisation of a right or a value is sufficient and achieves some purpose. A great deal of achieving that consensus is, however, met through what Rawls has subsequently argued as public reason.
The idea of public reason is one which aims towards attainment of a well-organised democratic polity. It specifies the very basic moral, political and philosophical values, which determine a democratic government’s relationship with its citizens and their inter se relationship. It is this public reason, which binds the State (as well as the citizens) to justify its political decisions by referencing to those public standards, which are not private to some and most importantly, do not impose a homogenized conception of the good. This is because this homogenized idea may most generally reflect the dominant perspective, leaving out concerns of the remaining citizenry.
As ‘public reason’ demands that the justificatory claims are based on publicly endorsed and available standards, the challenge for legislations like the one regulating anti-religious conversion is that they fail to pass the muster of public endorsement. They appeal to a sectarian notion of validity and do not register themselves as legislations of simple public endorsement. In that limited sense, it would not be incorrect to say that the Indian Constitution is a culmination of all reasonably foreseeable public values and standards. This is because a vertical application of the Constitution has consistently ensured that it is invoked time and again by the State as well as the Indian citizens (and very often by the non-citizens too) for defending the legitimacy of their decisions and actions.
Autonomy Considerations for the Religious Freedom Right
Using the framework I have prepared in the foregoing section as the premise, I will now turn to how this political idea of justice better explains a more nuanced version of autonomous religious freedom.
Amid other provisions which regulate the spectrum of Indian religious freedom, Article 25 of the Constitution provides an individual with the right to free profession, practise and propagation of religion. The constitutional mandate is to enhance the autonomous decision-making ability of an individual in matters of religion. A cursory reading of the anti-conversion statute suggests something antithetical to what the constitutional mandate provides for. I will discuss this phenomenon through one example.
Section 6 of this law declares that any marriage done solely for the purpose of religious conversion shall be declared null and void. Not just a marriage, even if any person undergoes religious conversion solely for the purpose of a marriage, such conversion as well shall be declared null and void. The provision further discriminates on the lines of gender by treating a woman inferior to a man in terms of agency as it specifically states that any religious conversion of a woman before or even after the marriage will render such conversion or marriage void. The rationale underlying this provision is beyond any credible justification.
This is the very point where the very precept of the law could be questioned by what I call as the autonomy rationale of rights. To respond to this situation, Kai Möller has devised a special category within autonomy protectable by constitutional rights – excluded reasons conception of autonomy. According to this conception, the State is forbidden from relying on certain reasons while treating its citizens. These reasons, as I suggest now, are what I have discussed earlier and as Rawls has termed as ‘public reason’. As public reasons are integral to a political conception of justice, so is autonomy central to freedom and equality of citizens. I argue that these public reasons comprise of what Möller has suggested being the excluded reasons – paternalism and moralism.
If the State places its reliance for justifying its conduct on a reason, which is either paternalistic or moralistic, such justification is invalid and harms the personal autonomy of an individual. Personal autonomy is the ability of an individual to conduct her life without any paternalistic and moralistic considerations – unless, it is a nonperfectionist conception of autonomy, a non-Razian one – where an individual may ‘consent’ to be governed even by paternalistic or moralistic laws. This is a different discussion and I would leave that for some other day. However, when the State through such anti-conversion legislations imposes views about the good life on the individual person, by promising her protection from even those choices which she wishes to make voluntarily, it relies upon paternalistic considerations for making such policy decisions.
The difficulty of external and non-willful imposition of paternalistic or moralistic considerations is limited not just to this particular legislation. This is merely a small piece of the puzzle. As I argue, the Indian State’s interferential drive with religious freedom has many stoppages but no final destination.
Its vehement position on anti-cow slaughter legislations is one of most authoritative and classic examples of the State deciding an individual’s dietary choices purely on moralistic considerations. While reliance is placed on a non-binding and merely directive provision of the Indian Constitution to justify these prohibitions, such legislations find succor from a broader vision of the State that cow is a holy animal considered by people belonging to a particular religion.
While appealing to majoritarian sentiments is certainly at the heart of decisions such as cow-slaughter bans, it will be logically as well as morally incorrect to argue that to ensure equality in secularism, the State must crack equally hard at consumption of pork as well. This is purely because such choices are very personal to an individual as an autonomous agent of herself and are certainly not supported by the society in toto. This is because public standards are principles of reasoning and evidence that all citizens could reasonably endorse and support.
Conclusion and the Way Forward
The Indian Constitution’s posture towards secularism has been very interesting. While it borrowed a mixture of the ‘anti-establishment’ as well as ‘free-exercise’ temperament from the United States, it is unclear what really guides the Indian State’s steel while intervening with the matters of religion.
It is also doubtful if the domains provided by the constitutional text are exhaustive areas delineated for the State’s intervention (abolition of untouchability, for instance) or that they are illustrative credos signaling a greater revamp of the religious lives of its individuals. An honest affiliation to the constitutional text, even if that suggests a crude form of positivistic reverence, seems to be a better option at the moment.
A choice otherwise would let the State (and more often than the State – the constitutional courts) renege on its commitment to a more secular polity with minimum government in matters central to an individual and ‘her’ version of the almighty.