By Rashad Khan 

Prior to the Karnataka State Assembly elections, India’s Congress party had promised that if elected, it would repeal the anti-conversion legislation passed during the Bharatiya Janata Party (BJP)’s tenure. Officially known as “Protection of Right to Freedom of Religion Act,” the Congress leadership viewed the act as controversial and divisive.

Upon forming the Karnataka state government after the declaration of the election results on May 13, Congress leaders announced that they would be removing the clauses added by the BJP government that had given the legislation its divisive characteristics. The rationale behind this move is that legislation against forced conversions has always been present, but that the bill introduced by the BJP government needs to be scrutinized and tweaked.

This moves away from Congress’ earlier promise to repeal the legislation completely. We will have to wait and see the nature of amendments that are made.

India has 12 states in which anti-conversion legislation has been passed, with circumstances that vary from state to state. The laws in all states share three common aspects: prohibitions on conversions, notification requirements to the government, and burden-shifting provisions that automatically presume guilt. All three violate protections for freedom of religion or belief under international human rights law. Article 18 of the International Covenant on Civil and Political Rights (ICCPR) provides that everyone has the right to freedom of religion or belief, including the “freedom to have or adopt a religion or belief.” This is violated by the anti-conversion laws, as they prohibit conversions for the purpose of marriage.

The state’s interference in citizens’ personal matters is also disconcerting. As per the anti-conversion legislation in Karnataka, the individual is to convey to the district magistrate their intention to convert, after which a public call will be made to check if any objections are raised by the public. In case of an objection, an investigation is organized. If it is found that the conversion is not “legitimate” and violates the anti-conversion legislation, the findings are provided to the police, who then initiate a criminal investigation.

According to the United Nations Human Rights Committee’s interpretation of ICCPR’s Article 18, the state cannot compel an individual to reveal their adherence to a belief and international human rights law prohibits the state from interfering in an individual’s right to convert and requiring the issuing of notifications regarding the same.

Another contentious element present in the anti-conversion legislation is the shift of the burden of proof onto the accused. Article 11 of the Universal Declaration of Human Rights states that those charged with a penal offense have a right to be presumed innocent until proven guilty. The presumption of innocence of the accused is echoed by Article 14 of the ICCPR, which states that the burden of proving the charge must be imposed on the prosecution and the defendant does not share the burden of proving their innocence.

Article 25 of the Indian Constitution guarantees freedom of conscience and the free profession, practice, and propagation of religion. However, due to religion being a matter that concerns the state and central governments, both have the capacity to make laws regarding the same. The Supreme Court of India has ruled that anti-conversion laws are valid and constitutional as long as they do not infringe upon an individual’s right to freedom of religion. The crux of the matter lies in the intention behind the laws and whether their implementation is detrimental to the prospect of communal harmony…

This story was originally published in thediplomat.com. Read the full story here