A familiar yet urgent question stands before the Indian Supreme Court. Rajasthan is the most recent addition to the list of Indian states that have enacted anti-conversion laws, targeting “unlawful conversions”—those brought about by “misrepresentation, force, fraud, undue influence, coercion, allurement.” Such laws are not new to the socio-political discourse in India. Their constitutionality was first affirmed in the 1977 ruling of Rev. Stanislaus’, along with the legislative competence to regulate religious activities affecting the community at large, including involuntary conversion. Notably, the Court clarified the right to “profess, practise and propagate religion” under Article 25 of the Constitution includes persuading others to convert. The only qualifying test is voluntariness. What naturally follows is that voluntary conversions are not only constitutionally permitted but constitutionally protected.

Unlike the earlier anti-conversion laws, however, modern criminalisation works on two levels. It goes further than restraining involuntary conversions, to casting  suspicion on any “marriage done for sole purpose of unlawful conversion or vice-versa”. While the statute seems to criminalise marriage involving coerced conversion (and vice versa), its mechanisms empower both societal and state actors to routinely police even consensual inter-faith unions. The law subjects a private decision like marriage to intrusive public scrutiny by mandating certain procedural pre-requisites, including but not limited to, intimating the proposed conversion to the executive authorities and seeking prior permission. Non-compliance not only carries a penalty of imprisonment but also renders the conversion illegal, obfuscating the validity of the marriage itself. Practically speaking, these administrative hurdles presume involuntariness in conversion-linked marriages, rendering the freedom to marry and convert an illusory right.

Viewing this problem from a theoretical standpoint exposes an inherent tension: criminal law is stretched beyond its legitimate bounds.  Since Puttaswamy (privacy judgement) and Shafin Jahan (choice in marriage judgement), the right to choose one’s partner forms an inviolable part of the right to life under Article 21. Bringing marriage into the net of criminal law, therefore creates a direct conflict between state power and individual liberty. Marriage falls within the innermost sphere of privacy i.e., the “intimate zone”, as articulated in Puttaswamy. The “intimate zone” is not as easily permeable as the “private zone” and the outermost “public zone”, and it demands extraordinary justification for state intervention. In effect, the criminalisation of marriage, preceding or succeeding the conversion, is simply a subset of broader criminalisation of unlawful conversion. The scope of its criminalisation, therefore, necessitates delineation.

Criminal law is meant to protect people from real harm, not to treat every private choice as suspicious. The work of  theorists like R.A. Duff reminds us that the idea of ‘social contract’ is not limited to individuals giving up their rights to the state for order. The state steps in only when this trust is broken (say, conversion against one’s will). The Indian anti-conversion laws, however, invert this logic. As discussed, the presumption that couples cannot make sincere choices on their own, strikes at the core of the modern contractarian model. The said statutes also blur key criminal law distinctions. Under the criminal law theory, unlawful conversion-linked marriage constitutes a mala prohibita offense, as its wrongness arises not from any inherent harm, but solely from legislative fiat, as opposed to mala in se offences. The inherent wrongs (here, involuntary conversions) justify punishment. But the wrongs, declared so by law, require greater caution.

The overreach, in criminalising the conversion-linked marriage as a derivative offence is two-fold. First, it pushes the limits of criminal law by punishing what is essentially a subset of an already covered offence. Second, it enters the personal domain of intimate choice. In “provid[ing] for prohibition of unlawful conversion”, inter alia, “by marriage”,  the law often punishes more than it can possibly protect. The inter-faith couples, who are already navigating societal resistance and religious frictions, endure the social costs of this law. In sum, such criminalisation is both doctrinally redundant and at odds with settled law. The normative limit is clear: the state may regulate coercion, but not choice.