The government should work with community leaders and civil society organisations to address the root causes of forced conversion and promote interfaith harmony
s we enter 2023, the issue of forced conversions remains a serious concern in Pakistan, with many reported cases of individuals being coerced to convert. This violation of religious freedom has the potential to cause conflicts within communities and contribute to religious intolerance.
In order to address this issue in the coming year, it will be important for the government to take a proactive stance in protecting the rights of all individuals to freely practice and profess their religion. This includes strictly enforcing laws that criminalise forced conversion.
Article 20(a) of the constitution guarantees the right of every citizen to freely profess, practice and propagate their religion. According to Article 22 (1), individuals attending educational institutions are not required to participate in any religious instruction, ceremonies or worship that pertain to a religion other than their own. This is meant to provide safeguards with regard to religious freedom of children.
The Lahore High Court, in its Judgment of WP No 45156 of 2019 (Nasira vs Judicial Magistrate and five others) (PLD 2020 Lahore 489), further clarified that while Article 20 of the constitution grants the citizens the right to propagate their faith, this right does not extend to forcing or inducing others to convert to a different religion. Forced conversion or the imposition of beliefs on others is a violation of the right to freedom of religion.
The Parliamentary Committee on Forced Conversion has recently noted the need for clear definitions and differentiation between forced and voluntary conversions. Forced conversion, frequently involving the kidnapping of individuals, often girls from religious minorities, has been a significant concern for minority groups in parts of Sindh and the Punjab, where the incidents have been increasing. It is important to recognise that forced conversion might also involve giving up adherence to a denomination of Islam and adopting another.
Once the victims, mostly underage girls, are abducted, they are often forced to marry their captors and may be subjected to sexual exploitation, rape and coercive measures, including restrictions on outside contact. When the abductors are brought to court after investigation, a lack of evidence often leads to their acquittal, with no consequences for their actions. This lack of evidence is often the result of threats against the victim and their family, leading the victim to claim in court that the conversion to Islam and/ or marriage was voluntary and not coerced. The various elements that make up the category of forced conversion are all criminal in nature.
The Pakistan Penal Code 1860 and the Protection of Women (Criminal Laws Amendment) Act 2006 contain provisions that address abduction, kidnapping and forced marriages. Specifically, Section 365 B criminalises the abduction of a woman. Section 366A prohibits inducing a minor girl (under the age of 18) to participate in any act that leads to forced or coerced sexual intercourse. In 2011, Section 498B was added to the Pakistan Penal Code to criminalise forced marriages, but it is classified as a non-cognizable offence.
In 2017, an amendment was made to Section 498B of the Pakistan Penal Code to enhance penalties for forced marriages. The amendment included a provision stating that in cases involving female children or non-Muslim women, the accused shall be punished with imprisonment for a term of at least five years and a fine of up to one million rupees. This amendment was made to the Child Marriage Restraint Act of 1929. A provision was inserted as; “Provided that in case of a female child as defined in the Child Marriage Restraint Act, 1929 (XIX of 1929), or a non-Muslim woman, the accused shall be punished with imprisonment of either description for a term which may extend to ten years but shall not be less than five years and shall also be liable to fine which may extend to one million rupees.”
Prior to the Sindh Child Marriages Restraint Act, the police in Pakistan often relied on Sections 364A, 365B and 498B of the Pakistan Penal Code to address cases of forced conversion. However, these laws have been subject to various interpretations, leading to confusion over when a person is considered capable of consenting to marriage and under what circumstances free will or consent is accepted in a marriage contract.
Police officers frequently fail to uphold the right to file FIRs and to follow proper criminal procedure, leading to feelings of helplessness among the families of victims and diminishing their motivation to pursue legal action.
Cases of forced conversion often follow a similar trajectory in Pakistan. Girls from religious minorities are abducted and converted to Islam, sometimes being married to the abductor or a third party. In some cases, the nikahnama (marriage deed) or free will affidavit bears the same date as the alleged abduction or disappearance. If the victim’s family files a first information report against the abduction, the police may insert Section 365B of the Pakistan Penal Code, which applies to women over the age of 18, without conducting a preliminary inquiry into the age of the girl. The abductor may file a counter FIR, alleging that the girl’s family is harassing her after she willingly converted and married of her own free will. In many cases, the abductor will file a constitutional petition in the High Court to register the counter FIR or obtain a restraining order to prevent the arrest of the accused. The victim girl may be asked to testify before a magistrate under Section 164 of the Criminal Procedure Code about whether she converted and married of her own free will. In the case of Arzoo Raja, this process was delayed due to the leave of the magistrate concerned and the refusal of the duty magistrate to record the victim’s statement. As a result, the accused party approached the High Court.
In many cases, a girl who has been abducted remains in the custody of her abductor during legal proceedings. This was the case in the Arzoo Raja matter, in which an initial court order allowed the girl to live with her abductor. However, this order was later modified. Often, the girl will testify that she willingly converted to the abductor’s religion and consented to the marriage. This statement is sometimes recorded without verifying the girl’s age despite the strict provisions of relevant laws, such as the Child Marriage Restraint Act of 1929 and 2013 in Sindh, and Sections 498B and 375(v) of the Pakistan Penal Code, which forbid sexual intercourse with girls under the age of 16, regardless of consent.
There are issues surrounding the investigation of cases of forced conversion by law enforcement agencies, particularly the police, due to widespread biases against minorities. These biases often lead to a reluctance to register cases and, when they are registered, to a failure to properly incorporate relevant laws and thoroughly investigate allegations of forced conversion. Biases are fuelled by general intolerance and hatred towards minorities in society, which can also affect the mind set of law enforcement officials. The first step in reporting a forced conversion case is often the registration of an FIR and the recovery and recording of the victim’s statement. However, it is common for the statements recorded and compiled in the form of a charge sheet to be based on inaccurate information, particularly when some influential members of the community are involved.
Police officers frequently fail to uphold the right to file FIRs and to follow proper criminal procedure, leading to feelings of helplessness among the families of victims and diminishing their motivation to pursue legal action. In 2005, a 13-year-old Hindu girl in Mirpurkhas, Sindh, was reportedly converted to Islam and married, with the court accepting her alleged consent as valid. The police refused to investigate the circumstances surrounding the alleged conversion or speak with the girl’s parents, despite the fact that Section 164 of the Code of Criminal Procedure requires that a judicial magistrate record such statements. In addition to displaying apathy, some police officers may also actively facilitate or provide immunity to criminals due to unequal social and political power dynamics.
It is recommended that the government and legislative bodies, including the parliament and provincial assemblies, take steps to prevent, prosecute, and provide redress for cases of forced conversion and related forced marriages among minority communities. This may include the promulgation of laws prohibiting forced conversion at the national and provincial levels. It is also suggested that the government address inconsistencies in current child marriage laws and various sections of the Pakistan Penal Code, such as 498-B, relating to forced and child marriages, as well as the relationship between personal laws and the conversion of minors belonging to other faiths for the purpose of marriage.
Law enforcement agencies, including the police, may invoke several legal provisions to address cases of forced conversion in Pakistan. Under Section 365-B of the PPC, no valid marriage can take place between the abductor and the person abducted as long as the latter remains under the control of the former. Sections 371-A, 366 A, 375, and 376, which were added to the PPC by the Protection of Women Act of 2006, provide remedies for crimes associated with forced marriage and forced conversion. Section 375 and 276 of the PPC define rape and provide for punishment. In cases of forced conversion involving child marriages and violations of fundamental rights, strict enforcement of legal prohibitions is necessary. District judges and magistrates should be instructed to follow the appropriate procedures for handling such cases.
The writer is an advocate of the High Court and a PhD scholar.He can be reached atadvocate.ahmedgmail.com