Three years on from the date that Nepal adopted its new constitution, there are concerns about its ‘anti-conversion’ clause, which seemed designed to specifically protect Hinduism at the expense of other religions.
The clause, in Article 26 (3) of the constitution, states:
“No person shall, in the exercise of the right conferred by this Article, do, or cause to be done, any act which may be contrary to public health, decency and morality or breach public peace, or convert another person from one religion to another or any act or conduct that may jeopardize other’s religion and such act shall be punishable by law.”
These provisions were strengthened in the Penal Code 2017 which came into force in August 2018. Section 158 states that “No person shall convert any one from one religion to another or make attempt to or abet such conversion” and carries a punishment of up to five years imprisonment and a fine of up to fifty thousand rupees.
The criminalisation of conversion is a direct infringement on freedom of religion or belief as it robs individuals of the right to change their religion. These provisions also threaten the right to freedom of expression as they could be used to prohibit a range of legitimate expressions of religion or belief such as charitable activities or speaking about one’s faith.
Fuelling religious intolerance
Similar laws exist in Burma and several states in India, where they have been abused to foster social intolerance and violence towards peaceful religious activities. Recent events appear to confirm initial fears that the laws would have the same effect in Nepal.
For example, in May 2018 four Christian churches were set on fire and one was bombed in just over a week. No-one was killed in the attacks, but these incidents illustrate a worrying increase in hostilities towards Christian groups in Nepal, and suggest that religious intolerance is increasing in the country.
Another indicator of increased religious intolerance in Nepal is the cancellation of December 25th as a public holiday by the Nepalese government. Now, only Christian civil servants are given a Christmas holiday. The decision to cancel this public holiday is considered the result of strong anti-Christian tendencies; the fact that the government gave in to these pressures illuminates the extent to which such tendencies are becoming more prevalent in Nepal.
Nepal has already seen several cases which demonstrate the ease with which the constitution’s anti-conversion laws can be misused.
In June 2016, Article 26(3) was used to charge eight Christians in Charikot with attempting to convert children through distributing a comic book on the story of Jesus. While the accused were acquitted of all charges in December 2016, the Religious Liberty Forum Nepal have since documented multiple similar cases which have taken place this year, these include:
- Sonia Chanda Thakuri, arrested along with her six month-old baby on 22 March after being falsely accused with attempting religious conversion and destroying Hindu idols. Sonia has since been released, but her case remains ongoing.
- Devi Rai, arrested with her friends in Chitwan on 30 April and accused of attempting to convert a Hindu family and encouraging them to destroy the Hindu idols. They were reportedly released a few days after the arrest.
- Sumitra Gauli, Radhika Maharjan and Phuldevi Bhattarai, arrested in their church in Kathmandu on 8 May, falsely accused of attempted religious conversion.
- Bhim Br. Pradhan and Nabin Kumar Mandal, arrested in Morang on 19 May for presenting Christian materials on a laptop. They are accused of speaking against Hindu gods and attempted conversion.
It is clear from the above cases that the anti-conversion laws can be used to make false accusations against anyone, which makes them highly vulnerable to misinterpretation and misuse for personal vendettas.
The cases also appear to suggest that the criminalisation of conversion is specifically designed to protect Hinduism.
Although Article 4 (1) of the constitution claims that Nepal is a secular state, the word secular is defined as the “protection of religion and culture being practised since ancient times and religious and cultural freedom,” which has been interpreted as affording special position to Hinduism. The constitution also stipulates that ‘Sanatana Dharma’ (the Hindu faith) will be protected by the state
This continues a long-standing history of protection of Hinduism in Nepal. In a famous case long before the new constitution was introduced, Christian pastor Charles Mendes was charged with “creating a disturbance to Hinduism” by distributing pamphlets about Christianity and eventually sentenced to six years in prison.
It is important to note that not all Hindus benefit from the anti-conversion laws. The Dalit minority group face severe discrimination in the Hindu caste system, many Dalits therefore change their religion in order to escape this. By prohibiting this practice the anti-conversion laws essentially lock Dalits and other minority groups into positions of subordination within the caste system.
Falling foul of international law
Nepal has made several national and international commitments to uphold and implement acts that will protect fundamental human rights. The country ratified the ICCPR in 1991, which it followed by introducing a national law, the Nepal Act, to fulfil its obligations. The Covenant is legally binding, and Articles 18 and 19 guarantee the right to freedom of religion or belief and freedom of expression respectively. By undermining these two fundamental rights, Nepal’s anti-conversion laws mean that the country falls short of its obligations under the ICCPR.
Nepal has also been elected to be a member of the HRC from 2018 to 2020, which makes these contraventions of international human rights law even more striking. As the country is now supposedly responsible for the promotion and protection of human rights around the world, it must first prioritise the promotion and protection of such rights within its own borders.
Under Nepal’s last Universal Periodic Review Cycle in November 2015, the government chose not to accept recommendations from both the USA and Spain relating to the amendment of the constitution, in order to ensure that freedom of religion or belief was fully upheld.
The misuse of the anti-conversion laws observed in subsequent years demonstrate that this cannot continue: Nepal must amend Article 26(3) of the constitution to prohibit only forceful conversion, and remove any clause prohibiting conversion in and of itself.
As a secular republic, Nepal now has the opportunity to achieve remarkable political, economic and social transformation since it attained ‘independence’ from a Hindu monarchy that ruled for over 200 years. To do so, it must not succumb to policies and practices that pave the way for polarisation of the country’s cultural and religious diversity.