Certificates from religious institutions not mandatory for change of faith, says Kerala government order

Published : August 01, 2020 18:14 IST

A boy offering prayers. Photo: The Hindu Archives

R. Krishnakumar

A person converting to another religion will no longer have to produce certificates from religious organisations to apply for changes in official records in Kerala. According to a government order issued by the Principal Secretary (Revenue), if “something suspicious” needs to be verified, the authorities can ask for an inquiry to be conducted by the local tahsildar.

The order issued on July 23 is in response to a clarification sought by the State Director of Printing on whether people seeking publication of gazette notifications regarding change of religion need to produce certificates from authorised religious organisations.

Dr A. Jayathilak, Principal Secretary (Revenue), said: “You don’t need validation from anybody else to change your name, age, or even gender in the government records. It is a matter of personal freedom. The government order upholds this fundamental right of people in the case of change of religion also. The clarification is based on the order issued by the Kerala High Court in January 2018.”

‘Fundamental right’

The High Court judgment on January 15, 2018 barred the government from insisting on certificates from any authorised institution “for acting upon a request made by a citizen for declaring a change of his religion and change of name, as a mandatory requirement”.

The government can conduct any inquiry as to such a declaration by a person, if so warranted, through its officials, the court said.

The petitioner in the case was a 67-year-old woman, Aysha (earlier Devaki), who had converted to Islam from Hinduism following the example of her son, a doctor. Her request for a notification of her change of name and religion in the gazette was denied by the Director of Printing, the authority concerned, on the grounds that it was “not supported by a certificate from a government-recognised institute/organisation vouching for her conversion”.

Justice A. Muhammed Mustaque of the High Court said in his order that the government may indeed require some evidence for effecting changes in the official records and streamlining any procedure. “But the issue whether a person requires a certificate from an institution to declare that she had converted to another religion or not, for effecting changes in the government records, raises an important question concerning the freedom to practice religion,” the order said.

Reiterating that “the right to profess and practice religion is a fundamental right” and that “one has the liberty to choose one’s faith”, the court said that the government would have to act upon a person’s declaration as to the change of her faith or conscience. “The maturity of such a decision cannot be subjected to any examination by any authority.”

Pointing out that “free exercise of religion means there are no restraints in practice”, the court said the right to practice religion cannot, therefore, “be burdened with a requirement of a certificate issued by an organisation or an institution”. If it is so, a person who changes his faith would be at the mercy of such an organisation to declare his status of change of faith.

The order further said: “The government cannot compel a person to affirm his change of religion, only through a particular mode vis-a-vis the certificate issued by the authorised organisation. Freedom of practice of religion, as guaranteed under the Constitution, is unrestricted by any qualification. The power of faith is something which one has inherently possessed in himself. Mere declaration of change of religion would be sufficient for the government to act upon such changes to be effected in the government records.”

The petition had also challenged a government order authorising certain organisations to issue certificates of conversion into Islam. But the court said the direction in the order “can be treated only as directory and not mandatory”, because the government cannot give “any exclusive right” to such authority for acting upon a request made by a citizen.

Article 25

In a subsequent case (Pranav A.M. and Arielle Seychelle Fosticon Lauro vs Chief Registrar General of Marriages, Government of Kerala) that came up before the High Court in April 2018 too, the question arose as to whether or not the Registrar of Marriages is bound to register a marriage based on a declaration made by the parties concerned without looking at the “legality of such marriage”.

In that case, an Indian citizen, a Hindu, had married a Filipino woman after the latter converted to Hinduism at a temple, but the Registrar had refused to register the marriage as he had “doubts regarding the legal validity of the marriage in accordance with the Hindu Marriage Act”, despite the petitioners declaring that they belonged to the Hindu community.

Justice Muhammed Mustaque ruled (quoting also the Aysha judgment) in this case too that “when a person declares that he has converted to Hinduism, that would be sufficient for the public authorities to act”. The ruling also said that in the absence of any particular mode prescribed for conversion as a Hindu, without there being any mala fides that can be pointed out, “the public authority cannot refuse to act upon such request”.

The freedom to practice any religion as mentioned in Article 25 of the Constitution of India is available both to citizens as well as non-citizens. The government or any other public office cannot insist that they can only act upon such declaration based on a certificate issued by any authority appointed by the government in this regard, the court said.

The government order comes nearly two years after the High Court judgment.

Jayathilak said that such cases came up rarely before the government for review, even though they deal with the important issue of freedom of an individual to choose his religion.

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