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Introduction
“You are free to go to your temples, you are free to go to your mosques or to any other place of worship in this state of Pakistan. You may belong to any religion or caste or creed, that has nothing to do with the business of State.” ~ Quaid e Azam Muhammad Ali Jinnah.
Regardless, after 75 years, the pattern of limited developments in the country with regard to human rights is contrary to the provisions set in the Constitution of Pakistan, which ensures equal rights for all the minorities. There is a growing concern in the country regarding the diminishing social space for minorities. Religious minorities, instead of being treated as equal citizens of the state, are posed as vulnerable communities who are prone to suffer discrimination and fathomless injustice. Women who belong to religious minorities are more exposed to the dangers of prejudiced behavior for them as they are often subjected to conversion and forced marriages by their abductors. Despite the fact that Article 36[1] of the Constitution safeguards the legitimate rights and interests of minorities, there are a plethora of forced conversion cases being reported by the media yet the State has practically done nothing to protect the honor of the victims. The amplification in the cases of religious conversions leading to forced marriages of females in Pakistan calls for appropriate legislation and strict penalties to safeguard the rights of minorities in Pakistan.
Forced conversion
Forced conversions in Pakistan jeopardize religious freedom, freedom of conscience, and religious plurality. There have been numerous cases of Hindu and Christian underage young girls being persuaded to convert to Islam and married to Muslim men who are twice their age.[2] Forced conversion refers to the kidnapping/abduction of religious minorities’ girls for the purpose of seduction and the forced conversion of surnames to Islam, which has been a serious source of concern for minorities, particularly in Sindh and Punjab, where such incidents are rapidly rising. After being kidnapped, females are often compelled to marry their captors and are sexually exploited, raped, and subjected to coercive tactics such as limiting outside contact. If the abductors/captors are captured and brought to court after an inquiry, the absence of evidence in the case leads to their final acquittal with no repercussions. The lack of proof is mostly due to the danger of harm to the girl and her family, which forces the victim girl to testify in court that she converted to Islam of her own free will and without compulsion and/or married. The Center for Legal Aid and Assistance (CLAAS) has categorized conversion into eight different sorts or structures: (1) willful, (2) false, (3) for cover, (4) abusive, (5) encourage, (6) under duress or compulsion, (7) for hunger, and (8) forcible.[3]
Inconsistencies in social and financial circumstances, as well as poverty, continue to be powerful motivators for people to convert from Hinduism or Christianity to Islam. Non- Muslims are skillfully persuaded to convert to Islam in order to escape inevitable segregation and advance up the social ladder from their rural status. The prospect of progress is particularly enticing to minority females. When the reasons for conversion include a need for security, an escape from prejudice, or a fear of future brutality, the boundary between willful and coerced conversions becomes blurred.
Kidnappings and forced conversions are a problem that all minority religions in Pakistan are concerned about, but it is especially tough for Hindu and Christian girls and women. The number of people abducted, forcefully converted, and trapped is difficult to ascertain due to non-reporting and the complexity of the crime. Girls and women are kidnapped, forced to change their religions, and then offered to marry their kidnappers.[4] Christians endure societal defamation in urban areas due to their unequal representation in society due to which they are powerless in the face of social injustice.
National legal framework
The Pakistani government managed to plant the seeds of hope for religious minorities by drafting the Prohibition of Forced Religious Conversion Act in 2019 and then shatter those dreams by refusing to enact the Act.[5] The objections were that the provisions of such an Act violated the Pakistani Constitution and Islam, and that it would, ironically, “cause further issues for minorities.”[6]
However, the Constitution of Pakistan directs the government to create legislation essential to safeguard its residents, particularly women and children. Article 9 states that the state must preserve the basic rights contained in the constitution, including the right to life and liberty.[7] A person whose life or liberty is threatened may assert this right as a “right to access to justice.” The Supreme Court concluded that under Article 9, the state is required by law to safeguard the lives and property of its inhabitants from any infractions.[8] Next, Article 25 guarantees the citizens equal justice and legal standing. Importantly, clause three states that nothing in this Article precludes the state from passing legislation to safeguard women and children.[9] Specifically, the Supreme Court found that the presumption in Article 25 (3) that the State implements specific arrangements for the protection of women and children meant not only physical protection but also the enlargement of women and children’s rights.[10] Yet to date, such guarantees remain only on paper. The key provision for this topic is Article 20 which is not restricted to matters of faith. It also pertains to deeds performed in the name of ‘religion,’ and so includes the guarantee of rites, ceremonies, and attitudes of devotion that are essential to religion.[11] The freedom to propagate faith entails the ability to pass on one person’s beliefs to another or to lay out the foundations of that belief, but it does not involve the ability to forcefully convert another person to the former’s ideas. He is allowed to embrace another religion, but no one has the basic right to convert him if he does not do so willingly.[12] Since forced conversions affect all minority groups disproportionately, Article 36 stipulates that the state must protect minorities’ fundamental rights, including their equal representation in federal and provincial services.[13]
All offenses prosecuted in Pakistan are punished by the Pakistan Penal Code. Accordingly, anyone who knowingly and maliciously attempts to offend the religious sensibilities of any class of people with visible words, recordings, or images insults that class’s religion or belief and faces up to 10 years in prison, a fine, or both.[14] Moreover, if anyone willfully disrupts any assemblage lawfully worshiping religious ceremonies,[15] or utters, hears, or makes a gesture in order to offend a person’s religious sensibilities, they face up to one year in jail, a fine, or both.[16] Further, a year in jail or a fine awaits anybody who harms another person’s feelings, offends a religious community’s religion, or insults a human corpse or those gathered at a funeral.[17] Recently, the Criminal Law Amendment Act has amended Section 498-B to make forced marriage of a minor and non-Muslim woman a crime punishable by five to 10 years in jail and a fine of 500,000 rupees.[18]
To summarize, general laws are broad in reach and do not provide protection against forced conversion due to their inadequacy. There are no provisions in the Pakistani Penal Code that prevent conversations from one faith to another through violence, deception, provocation, or persuasion.
International obligations
Pakistan is a signatory to the Universal Declaration of Human Rights (UDHR), whose Article 18 states that “everyone has the right to freedom of thought, conscience and religion”.[19] “This right includes freedom to change its religion or belief”.[20] The right to convert is, therefore, an essential component of the human right to freedom of religion or belief. The right not to be forced to convert is implied in the fact that any conversion must necessarily occur voluntarily, through non-coerced means.
In June 2010, Pakistan ratified the 1966 International Covenant on Civil and Political Rights (ICCPR). Under Article 18(2), “no one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice”.[21] The Human Rights Committee has also highlighted its view in General Comment No. 22 on “the right to freedom of thought, conscience and religion”. The Human Rights Committee observed that Article 18(2) “bars coercion that would impair the right to have or adopt a religion or belief, including the use of threat of physical force or penal sanctions to compel believers or non-believers to adhere to their religious beliefs and congregations, to recant their religion or belief or to convert”.[22] Moreover “policies or practices having the same intention or effect, such as those restricting access to education, medical care, employment [..] and other provisions of the Covenant , are similarly inconsistent with Article 18(2).”[23]
In all cases where individuals or organisations try to convert people by resorting to means of coercion, the State has the duty to intervene and provide adequate protection.[24] Given the high level of forced conversion in Pakistan, it seems evident that the country has failed to comply with international obligations. The international community and several human rights organisations have therefore consistently called to stop forced conversion and marriages.[25] Non-discriminatory laws need to be enacted to protect people from being subject to forced conversions while allowing conversions based on free will and consent.
Comparative overview
When considering other Commonwealth countries, several of these have specific legislative frameworks to restrict forced conversions.
In India, for instance, several states have enacted legislation – also called “Freedom of Religious” Acts – to restrict religious conversions carried out by force, fraud or inducement of money.[26] Each of the laws states that “no person shall convert or attempt to convert, either directly or otherwise, any person from one religion to another by use of force or by allurement or by any fraudulent means nor shall any person abet such conversion”.[27] Only four states have, however, placed a ban on forced conversion through marriage.[28] Although sanctions are not uniform among the provinces and other provinces have not yet enacted legislation in this sense, the increase in anti-conversion laws demonstrates the importance of preventing forced or induced conversions. In addition, the Supreme Court of India, in Rev. Stanislaus vs State of Madhya Pradesh and Orissa, considered the anti-conversion laws entirely constitutional because religious forced conversions constitute a clear violation of freedom of conscience, granted by Article 25(1) of the Indian Constitution.[29]
Other anti-conversion laws have been likewise adopted by Nepal, Myanmar and Bhutan.[30] Pakistan is urged, thus, to adopt a similar framework to criminalize forced conversion.
Conclusion
In the current circumstances, enacting a legislation forbidding forced conversion at the national and provincial levels is crucial. Provincial governments and Prime Minister needs to take measure to end forced conversions. The media should also support victims with a victim-centered approach, as well as families that have been forced to convert, by providing legal advice, legal aid, and support, as well as involvement in public and social interest litigation and guidance to assert their rights. There is also a need to improve religious minorities’ financial and social standing. The government may ensure that they have equal access to education, employment, and health facilities by enacting anti-conversion laws to acknowledge the rights of religious minorities.
[1] The Constitution of the Islamic Republic of Pakistan 1973 art 36.
[2] Forced Marriages & Forced Conversions in the Christian Community of Pakistan, (2014), M.S.P. <https://d3n8a8pro7vhmx.cloudfront.net/msp/pages/162/attachments/original/1396724215/MSP_Report_- _Forced_Marriages_and_Conversions_of_Christian_Women_in_Pakistan.pdf?1396724215> accessed 23 June 2022.
[3] ibid.
[4] Reuben Ackerman, Javaid Rehman, Morris Johns, ‘Force conversion and force marriages in Sindh Pakistan, BIRMIGHAM, ac.uk <https://www.birmingham.ac.uk/Documents/college-artslaw/ptr/ciforb/Forced- Conversions-and-Forced-Marriages-in-Sindh.pdf> accessed 23 June 2022.
[5] ‘Parliamentary Panel Rejects Bill Against Forced Conversions’ (Newsweek Pakistan, 14 October 2021) <https://www.newsweekpakistan.com/parliamentary-panel-rejects-bill-against-forced-conversions/> accessed 25 June 2022.
[6] ibid.
[7] Constitution of Pakistan (n 1) art 9.
[8] Watan Party v Federation of Pakistan PLD 2011 Supreme Court 997.
[9] Constitution of Pakistan (n 1) art 25.
[10] Fazal Jan v Roshan Din PLD 1992 Supreme Court 811.
[11] Constitution of Pakistan (n 1) art 20.
[12] Ghulam Mustafa v Judge Family Court 2021 CLC 204.
[13] Constitution of Pakistan (n 1) art 36.
[14] Pakistan Penal Code (Act XLV of 1860) s 295 A.
[15] ibid s 296.
[16] ibid s 298.
[17] ibid s 297.
[18] ibid s 498 B.
[19] Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR) art 18.
[20] ibid.
[21] International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR) art 18(2).
[22] OHCHR ‘General Comment No. 22: The right to freedom of thought, conscience and religion (Art. 18)’ (30 July 1993) UN Doc CCPR/C/21/Rev.1/Add.4, para 5 <https://www.equalrightstrust.org/ertdocumentbank/general%20comment%2022.pdf> accessed 21 June 2022.
[23] ibid.
[24] International Commission of Jurists, ‘Violations of the Right to Freedom of Religion or Belief in Pakistan: A Briefing Paper’ (June 2021) 35 < https://www.icj.org/wp-content/uploads/2021/07/Pakistan-FoRB-Advocacy-Analysis-biref-2021-ENG.pdf> accessed 21 June 2022.
[25] ‘Pakistan minorities at risk due to forced conversions, marriages’ (The Economic Times, 21 January 2022) <https://economictimes.indiatimes.com/news/international/world-news/pakistan-minorities-at-risk-due-to-forced-conversions-marriages/articleshow/89043862.cms?from=mdr> accessed 21 June 2022.
[26] ‘Anti-conversion laws in India: How states deal with religious conversion’ (India Today, 23 December 2020), <https://www.indiatoday.in/news-analysis/story/anti-conversion-laws-in-india-states-religious-conversion-1752402-2020-12-23> accessed 21 June 2022.
[27] Orissa Freedom of Religion Act of 1968, Article 2; Madhya Pradesh Freedom of Religion Act of 1968, art 3; Arunachal Pradesh Freedom of Religion Act of 1978, art 3; Gujarat Freedom of Religion Act of 2003, art 3; Himachal Pradesh Freedom of Religion Act of 2006, art 3; Jharkhand Freedom of Religion Act of 2017, art 3; Uttarakhand Freedom of Religion Act of 2018, art 3; Uttar Pradesh Freedom of Religion Act of 2020, art 3.
[28] Library of Congress, ‘FALQs: The Controversy Over Marriage and Anti-Conversion Laws in India’ (25 March 2021), <https://blogs.loc.gov/law/2021/03/falqs-the-controversy-over-marriage-and-anti-conversion-laws-in-india/> accessed 21 June 2022.
[29] Supreme Court of India, Rev. Stanislaus vs State of Madhya Pradesh and Orissa (17 January 1977) 1977 SCR (2) 611 <https://indiankanoon.org/doc/1308071/> accessed 21 June 2022.
[30] Meghan Grizzle Fischer, ‘Anti-Conversions Laws and the International Response’ (2018) <https://adfinternational.org/wp-content/uploads/2021/08/Anti-Conversion_Laws_ebook_FINAL.pdf> accessed 21 June 2022.
Bibliography
Primary Sources
International Treaties and National Legislation:
Arunachal Pradesh Freedom of Religion Act of 1978
Gujarat Freedom of Religion Act of 2003
Himachal Pradesh Freedom of Religion Act of 2006
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into force 23 March 1976) 999 UNTS 171 (ICCPR)
Jharkhand Freedom of Religion Act of 2017
Madhya Pradesh Freedom of Religion Act of 1968
OHCHR ‘General Comment No. 22: The right to freedom of thought, conscience and religion (Art. 18)’ (30 July 1993) UN Doc CCPR/C/21/Rev.1/Add.4
Orissa Freedom of Religion Act of 1968
Pakistan Penal Code (Act XLV of 1860)
The Constitution of the Islamic Republic of Pakistan 1973
Universal Declaration of Human Rights (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR)
Uttarakhand Freedom of Religion Act of 2018
Uttar Pradesh Freedom of Religion Act of 2020
Case Law:
Fazal Jan v Roshan Din PLD 1992 Supreme Court 811
Ghulam Mustafa v Judge Family Court 2021 CLC 204
Supreme Court of India, Rev. Stanislaus vs State of Madhya Pradesh and Orissa (17 January 1977) 1977 SCR (2) 611
Watan Party v Federation of Pakistan PLD 2011 Supreme Court 997
Secondary Sources
Ackerman R, Rehman J and Johns M, ‘Force conversion and force marriages in Sindh Pakistan, BIRMIGHAM, ac.uk <https://www.birmingham.ac.uk/Documents/college-artslaw/ptr/ciforb/Forced- Conversions-and-Forced-Marriages-in-Sindh.pdf> accessed 23 June 2022.
‘Anti-conversion laws in India: How states deal with religious conversion’ (India Today, 23 December 2020), <https://www.indiatoday.in/news-analysis/story/anti-conversion-laws-in-india-states-religious-conversion-1752402-2020-12-23> accessed 21 June 2022.
Fischer M G, ‘Anti-Conversions Laws and the International Response’ (2018) <https://adfinternational.org/wp-content/uploads/2021/08/Anti Conversion_Laws_ebook_FINAL.pdf> accessed 21 June 2022.
Forced Marriages & Forced Conversions in the Christian Community of Pakistan (2014), M.S.P. <https://d3n8a8pro7vhmx.cloudfront.net/msp/pages/162/attachments/original/1396724215/MSP_Report_- _Forced_Marriages_and_Conversions_of_Christian_Women_in_Pakistan.pdf?1396724215> accessed 23 June 2022
International Commission of Jurists, ‘Violations of the Right to Freedom of Religion or Belief in Pakistan: A Briefing Paper’ (June 2021) <https://www.icj.org/wp-content/uploads/2021/07/Pakistan-FoRB-Advocacy-Analysis-biref-2021-ENG.pdf> accessed 21 June 2022.
Library of Congress, ‘FALQs: The Controversy Over Marriage and Anti-Conversion Laws in India’ (25 March 2021), available at <https://blogs.loc.gov/law/2021/03/falqs-the-controversy-over-marriage-and-anti-conversion-laws-in-india/> accessed 21 June 2022.
‘Pakistan minorities at risk due to forced conversions, marriages’ (The Economic Times, 21 January 2022) <https://economictimes.indiatimes.com/news/international/world-news/pakistan-minorities-at-risk-due-to-forced-conversions-marriages/articleshow/89043862.cms?from=mdr> accessed 21 June 2022.
‘Parliamentary Panel Rejects Bill Against Forced Conversions’ (Newsweek Pakistan, 14 October 2021) <https://www.newsweekpakistan.com/parliamentary-panel-rejects-bill-against-forced-conversions/> accessed 25 June 2022.
Authors
Esha Amer, Research Assistant, RCIL & HR (eshaamer@yahoo.com)
Firdes Shevket, Research Assistant, RCIL & HR (firdes.schwkt98@gmail.com)
Sara Ciucci, Research Assistant, RCIL & HR (sara.ciucci3@gmail.com)