India’s Religious Freedom failings ‘Enshrined in Constitution’
Religious freedom in India will never be achieved unless the country is willing to make substantial amendments to its constitution and legal framework, says a new report. It also asks the US to put human rights at the heart of trade and diplomatic interactions with India.
A tide of religiously motivated nationalism in recent years has seen India rise up the Open Doors World Watch List of the 50 countries in which it is hardest to live as a Christian. This year, India is ranked 15th.
The new report, released this month by the US Commission on International Religious Freedom (USCIRF), suggests the heart of the problem relates to the law.
USCIRF says that while on the one hand India's constitution emphasises the "complete legal equality" of its citizens and prohibits faith-based discrimination, on the other "there are constitutional provisions and state and national laws in India that do not comply with international standards of freedom or religion or belief".
"Anti-conversion laws" in seven Indian states, and discrimination based upon caste and religion, are among the issues highlighted.
The situation has worsened since the rise to power of Narendra Modi's Hindu nationalist BJP party, the report says.
Since 2014, when Modi took power, "hate crimes, social boycotts, assaults, and forced conversion [to Hinduism] have escalated dramatically," it says.
The report accuses India of moving away from its secular, democratic and pluralistic foundations to become a country where "religious minorities have witnessed a deterioration of their rights".
Regarding the so-called "anti-conversion laws", USCIRF says: "Although the laws do not explicitly ban conversions, in practice these laws 'both by their design and implementation, infringe upon the individual's right to convert, favour Hinduism over minority religions, and represent a significant challenge to Indian secularism'.
"While the laws apparently protect religious communities only from efforts to encourage conversion by inappropriate ways, the failure to clearly define what makes a conversion inappropriate gives state governments unregulated discretion to accept or reject the legitimacy of religious conversions."
One of the major points of contention regarding these laws is a tendency in India to suggest that freedom of conscience is incompatible with the freedom to convert.
USCIRF quotes a 1977 Indian Supreme Court judgment, in which it was written: "If a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the 'freedom of conscience' guaranteed to all the citizens of the country alike."
As USCIRF points out, such language allows state governments to determine which conversions are valid, and which are not, and in this regard it is the Hindu majority which receives clear preferential treatment.
"Ironically", writes USCIRF, the laws are "not enforced when the religious minorities are converted to Hinduism, which instead is interpreted as 'reconversion'", taking place in Ghar Wapsi, or "homecoming", ceremonies.
Meanwhile, although discrimination due to caste is prohibited in the constitution, the caste system, which is discriminatory at its root, remains, as USCIRF notes, a "fundamental part of Hinduism".
Under this system, the "untouchables", or Dalits, have faced "unique discrimination", writes USCIRF, the only parallel of which was apartheid in South Africa.
Many Dalits are Christians. In fact, Dalits account for two-thirds of India's Christian population, who number more than 80 million, or 7 per cent of India's total population, by some estimates.
USCIRF concludes that religious minorities and Dalits face "discrimination and persecution due to a combination of overly broad or ill-defined laws, an inefficient criminal justice system, and a lack of jurisprudential consistency."
USCIRF makes the following recommendations for the Indian government - it should:
- Increase training opportunities on human rights and religious freedom standards and practices for the members of its legislature, police, and the judiciary.
- Operationalize the term "minority" in its federal laws and comply with the United Nations Declaration on the Rights of Persons Belonging to National or Ethnic, Religious, and Linguistic Minorities.
- Drop Explanation II in Article 25 of its constitution and recognize Sikhism, Buddhism, and Jainism as distinct religions with their own separate religious identities. The government of India also should adopt the recommendations of the Venkatachaliah Commission (2000-2002).
- Not impose Hindu personal status laws on Sikh, Buddhist, and Jain communities, but instead provide them with a provision of personal status laws as per their distinct religious beliefs and practices.
- Adopt the International Convention on the Elimination of All Forms of Racial Discrimination.
- Implement the recommendations of the Commission for Religious and Linguistic Minorities (2007).
- Stop its harassment of nongovernmental organizations, religious freedom activists, and human rights defenders under the Foreign Contribution Regulation Act (FCRA) of 2010. The discriminatory amendment in the FCRA (introduced in March 2016 with retroactive implementation from 2010) should be revoked. The revised FCRA now states the government can block funds "for any activities detrimental to the national interest".*
- Reform the anti-conversion laws and appreciate that both conversion and reconversion by use of force, fraud, or allurement are equally bad and infringe upon a person's freedom of conscience.
- Establish a test of reasonableness surrounding the Indian state prohibitions on cow slaughter. If the Indian government is keen to maintain this legislation based on religious sentiments, then it should also introduce legislation to recognize as hate crimes the desecration and mockery of sacred texts of any religion, places of worship, or prophets of any religion.
*One current casualty of this amendment is the NGO Compassion International, which, after a long legal battle, has to close its work in India by 15 March. The NGO has been meeting the physical needs of 145,000 children while promoting emotional and spiritual development, including the incorporation of Christian teachings into its work. The government says it's identified several "black sheep" within Compassion who worked against "national interests".