Controversies surrounding conversion must be used by the apex court to expand the meaning of religious freedom as has been done with regard to other fundamental rights such as right to life and personal liberty, writes FAIZAN MUSTAFA
The first seven months of the Modi government would be remembered for the revival of religion in politics. The word “conversion” is as old as religion. Some kind of crisis precedes conversion. The crises may be social, economic, religious, political, psychological or cultural. Certain rights (to citizenship, reservation, alimony, divorce etc.) vary depending on one’s religious identity, making conversion both a religious and a political act. Conversion is located at the nexus of spiritual and material interests.
Conversion is the hotly debated subject today. The BJP is daring the opposition to agree to an anti-conversion law. BJP itself promised such a law in its election manifesto.
What is the history of anti-conversion laws in India? Are such laws constitutional? How Indian judiciary has responded to conversion laws is an issue of great significance. Such a law would not put a blanket ban on conversions. It is not right to see a convert as a mere object rather than as the subject of conversion. The focus of conversion laws is on ‘weaker sections’ who are converted by ‘others’. But these laws do not give adequate importance to one’s right to convert ‘oneself’ and thus limits freedom of conscience.
Conversion has been a component of colonialism. The British rulers in India never imposed any restriction on the right to propagate one’s religion and converting others. They themselves professed a proselytizing religion and kept away throughout their rule from any measure that would have any adverse effect on their missionary activities.
On the contrary, they greatly encouraged the evangelists and facilitated conversion to Christianity by introducing new measures in the domain of private law in order to remove hurdles in the way of conversion. Conversion is the fate of losers in an imperialist struggle, part and parcel of forced assimilation. The resurgent right today wants to follow the British.
But outside British India, a number of princely States did enact anti-conversion laws. Among these the prominent laws were Rajgarh State Conversion Act 1936, the Patna Freedom of Religion Act, 1942, the Sarguja State Apostasy Act 1945, and the Udaipur State Anti-Conversion Act 1946.
Similar legislations were also promulgated in Bikaner, Jodhpur, Kalahandi and Kota. Raigarh law was actually a threat from the government officials to the missionaries and the oppressed classes of Hindus, such as Adivasis not to adopt other religions. The enactment banned the preaching of Christianity and prohibited the entry of Christian missionaries into the Kingdom of Rajgarh, Jashpur, Surguja etc. of Chhotanagpur areas.
Surguja State Hindu Apostasy Act, 1945 was the second enactment on conversion from Hinduism to Islam and Christianity by vesting the power to allow or disallow conversion in the Darbar of the Rajas under the guise of maintaining law and order and establishing public peace. Udaipur State Conversion Act, 1946 required all conversions from Hindu religion to other faiths to be registered officially.
The known purpose of all these laws was to protect Hindus against the “onslaught” of Christian missionary activities. It is interesting to note that no parallel laws were enacted in the princely states ruled by the Muslims, e.g. Hyderabad, Rampur, and Junagarh etc.
After independence in 1954 a member of the then ruling party moved in Parliament the ‘Indian Converts Regulation and Registration Bill’ providing for compulsory licensing of the missionaries and for registration of conversion with government functionaries. It was opposed mainly by Christians, the Bill was eventually dropped at the behest of Prime Minister Nehru.
In 1960 another Bill was introduced in Parliament. The Backward Communities (Religion), Protection) Bill aimed at checking conversion of Hindus to “non Indian religions which, as per the Bill, included Islam, Christianity, Judaism and Zoroastrianism. It was soon rejected by Parliament for its apparent affront on specific religious faiths.
No further attempt in this direction was made in Parliament till 1979, when the House witnessed introduction and imminent fall of a “Freedom of Religion Bill” seeking official curbs on inter-religious conversion, which was opposed among others by the National Minorities Commission.
During 1967-1968, two Indian States, Orissa and Madhya Pradesh, enacted laws strangely called Freedom of Religion Acts. Ten years later a similar law was enacted in a third state, Arunachal Pradesh.
The three state laws on conversion had more or less identical provisions. They prohibited conversion by force, allurement, inducement and fraud – defining conversion as renouncing one religion and adopting another. They thus apply to all cases of change of religions. Contravention was a cognizable offence punishable with imprisonment, fine or both. Those who convert a person – by performing or participating in the necessary ceremony – are required to send an ‘intimation’ of conversion to the District Magistrate of the locality; failure to do so was also made a cognizable offence.
Madhya Pradesh Conversion Bill, 1963 was nothing but a re-beating of the drum of the Niyogi Committee Report. It was meant to make it obligatory on would-be converts to declare that conversion was not due to temptation or pressure. The Bill declared that the “work of preaching” was against the interests of the nation. Again the Freedom of Religion Act, 1967, passed under the Swatantra Party in Orissa State was actually an anti-conversion law which was not be repealed even after the ouster of the Swatantra Party government from power.
The Congress Party that came to power did not dare to repeal the Act. However, its validity was challenged in Orissa High Court. The Court struck down the enactment as ultra vires to the Constitution in 1972. These Madhya Pradesh and Orissa laws were passed at the behest of rich landlords who had a vested interest in keeping the Scheduled Castes and Scheduled Tribes in a state of poverty and unconstitutional bondage so that their vested interest would not be hampered on the surface.
Tamil Nadu, Gujarat and Himachal Pradesh also enacted similar laws which are wider in scope and provide for more stringent punishments. Tamil Nadu law has been repealed. Rajasthan law was blocked by the Governor.
In Yalitha Hyde’s Case, the petitioners expressly averred that conversion was a part of the Christian religion. No affidavits were filed in reply by the Orissa Government although opportunity was given to do so; the court was informed that it was not proposed to file any affidavit in reply.
The court in this case held that “counsel for the several petitioners have freely quoted from several Christian scriptures of undoubted authority to show that propagating religion with a view to its spreading is a part of religious duty for every Christian and therefore must be considered as a part of religion. Learned Government Advocates did not dispute this assertion of fact. We, therefore proceed on the basis that it is the religious duty of every Christian to propagate his religion.”
It is, therefore, clear first that conversion was a part of the Christian religion, and, secondly, that this proposition was not controverted by counsel appearing on behalf of the State. The Orissa High Court recorded the finding that “Article 25(1) guarantees propagation of religion and conversion as a part of Christian religion”.
In Rev. Stanislaus, it was argued in the Supreme Court that since these Acts relate to the prohibition of conversions, they are contrary to Constitution as they are indeed hindrance in the ‘propagation’ of one’s religion. But the Supreme Court upheld their validity.
Explaining the ambit of Art. 25, the Supreme Court held that Art. 25(1) of the Constitution does not grant the right to convert another person to one’s religion, but to transmit or spread one’s religion by an exposition of its tenets.
Art. 25(1) guarantees “freedom of conscience” to every citizen, and not merely to the followers of one particular religion, and that in turn postulates that there is no fundamental right to convert another person to one’s own religion, because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion that would impinge on the “freedom of conscience” guaranteed to all the citizens of the country alike.
The Supreme Court which reversed the judgment of the Orissa High Court made no attempt to show that the question raised and decided was either irrelevant, or was wrongly decided. In spite of provisions of laws being challenged, the court did not set out the impugned provisions in its judgment. The court similarly did not discuss definitions of ‘inducement’ and ‘allurement’ which was the primary bone of contention.
It is shocking to note that the apex court did not revert to the legislative history of Article 25 as the term ‘propagate’ was included as a compromise to assure Christians that it would include freedom to convert. The decision of apex court was termed as “productive of greatest public mischief.”
Supreme Court has clearly denied freedom of conscience and the judgment deserves reconsideration. In fact all considerations applicable to freedom of speech and expression Article 19(1) (a) should be applicable to the right to propagate. The right to propagate one’s idea is inherent in the concept of freedom of speech and expression.
Latest conversion incidents must be used as an opportunity to revisit this decision and an effort must be made by the court to expand the meaning of religious freedom as has been done by it with regard to other fundamental rights such as right to life and personal liberty.
An anti-conversion law is not the right answer to the conversion controversy. Religious freedom including freedom to convert is quintessential for the complete development of human intellect and personality. Article 18 of the Universal Declaration of Human Rights lays down that freedom of conscience includes freedom to change the religion or belief. Freedom of conscience means a person is free to entertain any belief. This implies that state cannot enquire into or take notice of a citizen’s religious beliefs.
The registration of conversion and requirement of prior permission to convert constitute a hoop for converts to jump through and make a potentially private decision a public act. Freedom to convert valorizes individual freedom and rational choice as it judges the acceptability of religion on certain ethical credentials.
(The writer is Vice-Chancellor, NALSAR University of Law, Hyderabad.)