Author Name:   Shreyaa

The fact that individuals can be legally tied down to their religion of birth and do not have the full freedom to make their own decisions is one in a long line of measures taken by the Indian state that treats the country as a conglomeration of communities and not of individuals. This is an extremely slippery slope to be on, one that the country must look to get out of.

CONSTITUTIONALITY AND JUDICIAL INTERPRETATION OF RELIGIOUS CONVERSION AND ITS LAWS IN INDIA.

Reports on abuse of religious freedom in India has lately been adequately highlighted by media with headlines such as:
“Hindu outfits to convert Christians in Meerut”
“Despite outrage ,fringe groups won’t halt conversions”
“Hinduism under threat: mass conversions”

These direct us to the need to think and understand our fundamental right, The right to freedom of religion.
The equality of all religions is expressly recognized by Article 25 thereby emphasizing the cherished ideal of secularism.

Right to freedom of religion is a fundamental right under our Constitution. The concept of religious freedom as incorporated in Articles 25 and 26 of our Constitution was largely based upon Article 44(2) of the Irish Constitution.

Article 25: Freedom of conscience and free profession, practice and propagation of religion

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion

So, the issue of forceful conversion comes in to the picture when the two words “profess” and “propagate” are misunderstood while, the word ‘profess’ in the article means to follow and tell the world at large about one’s religion and ‘propagate’ means to spread, to tell the goodness of one’s religion to others and get them to follow that religious faith by voluntary peaceful and constitutional means.

The expression 'practice' is concerned primarily with religious worship, ritual and observations. Propagating the religion connotes the right to communicate the religious beliefs to others by expounding the tenets of that religion. Of course, in the name of propagation, no one has a right to convert a person to another religion under pressure or inducement vide Rev. Stainislaus v. State of Madhya Pradesh,(AIR 1977 SC 908).

There is no precise definition of religion. The Constitution of India does not define the word “Religion”.  'Religion', it is said, is a matter of faith and belief in God is not essential to constitute religion. 

It is well-settled that the freedom of conscience and the right to profess a religion implies freedom to change the religion as well. 

The United Nations Universal Declaration of Human Rights defines religious conversions as a human right:-  

Article 18 of the universal declaration of HR declares the freedom of religion in the following terms:

“Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practicing, worship and observance.”

The freedom to change religion is expressly recognized by this Article. Seven states abstained from voting; and Saudi Arabia was one amongst them. The objection raised by Saudi Arabia was that Article 18 incorporating the freedom to change religion is against the tenets of Islam.

In order to give effect to the Universal Declaration of Human Rights the member states of the United Nations adopted the following two covenants in 1966:

(1) International Covenant on Economic, Social and Cultural Rights.

(2) International Covenant on Civil and Political Rights.

The Government of India by its declaration dated 10-4-1979 had accepted the Universal Declaration of Human Rights and the two International Covenants with certain reservations which do not cover the right to freedom of religion.

Sri M.N. Rao, former Chief Justice of H.P. High Court  in his article on Right to Conversion' (2003) made the following pertinent observations:

          "Right to conversion connotes individual right of a person to quit one religion and embrace another voluntarily. This kind of change from one religion to another religion must necessarily be in consequence of one's conviction that the religion in which he was born into has not measured up to his expectations, spiritual or rational. Sometimes it may also be the result of losing faith in one's own religion because of the rigidity of its tenets and practices. Sometimes one may even lose total faith in the very concept of the existence of God and turn to Atheism. A change of religion, a consequence of any of the above reasons, falls within the ambit of the "Right to Conversion". 

It has been held in a number of decided cases including the pronouncements of the Supreme Court that no particular formalities or Religious rituals or ceremonies are necessary to bring about conversion or reconversion.  In the case of Punjabrao v. Dr. D.P. Meshram and others(AIR 1965 SC 1179),

It was observed that the presence of a Bhikku on the occasion of a function held for conversion of Hindu Harijans into Buddhism and compliance with particular rituals is not necessary; so also, the signature of a converted person in a register for conversion is not obligatory.     

In Perumal Nadar (dead) by Legal Representative v. Ponnuswami Nadar (minor) (AIR 1971 SC 2352), The principle was reiterated that no formal ceremony of purification or expiation is necessary to effectuate conversion.  So also in the case of S. Anbalagan v. B Devararajan and others (AIR 1984 SC 411), the Supreme Court examined the legal position in regard to caste status on conversion or re-conversion to Hinduism and held that no particular ceremony was prescribed for re-conversion to Hinduism. 

In the Chandra Sekaran case the court had observed that a person does not cease to be a Hindu merely because he declares that he has no faith in his religion. A person will not cease to be a Hindu even if he does not practice his religion till he renounces his religion or starts eating Beef or insulting God or Godess.

The Karnataka High Court observed in Sujatha v. Jose Augustine II (1994) Divorce & Matrimonial Cases, that to be a Christian, one must truly profess the Christian faith and the fact that one has undergone the ceremony of baptism may not by itself be sufficient to hold that he or she has become a Christian. The fundamental thing to be established before one can be held to be Christian is that the person concerned truly believes in and professes the Christian faith. 

In recent case of M.Chandra vs. M. Thangamuthu and Another (2010) 9 SCC 712 the Supreme Court observed:-

"It is a settled principle of law that to prove a conversion from one religion to another, two elements need to be satisfied. 

First, there has to be a conversion and 

Second, acceptance into the community to which the person converted."

Conversion from one religion to another entails several legal consequences:-

It affects succession, marital status and also right to seek elective office. Insofar as marriage is concerned, divorce can be sought on the ground that the spouse has changed the religion.41 A Hindu cannot after conversion to Islam contract a second marriage under Muslim Law. He would be guilty of offence under Section 494 IPC. This principal was again affirmed in Salra Mudgal case.

In the case of Punjabrao Vs Dr. D.P. Meshram:-

A Constitution Bench of Supreme Court interpreted the expression 'profess' in clause 3 of the Constitution (Scheduled Caste) Order 1950. The said provision contemplates that a person to be treated as one belonging to the Scheduled Caste, should profess either Hindu or Sikh religion. In that case, the election of the first respondent to the Legislative Assembly was challenged on the ground that he embraced Buddhism and had ceased to be a member of Scheduled Caste.

                    The Election Tribunal upheld the contention of the appellant and set aside the election. However, the High Court held that conversion of first respondent to Buddhism had not been established and therefore, upheld his election. 

             The Supreme Court allowed the appeal and restored the order of the Election Tribunal holding that the first respondent had ceased to be Hindu at the time of his nomination and consequently ineligible to be a candidate for election from a constituency reserved for members of Scheduled Castes.

Therefore, if a public declaration is made by a person that he has ceased to belong to his old religion and has accepted another religion he will be taken as professing the other religion. In the face of such an open declaration it would be idle to enquire further as to whether the conversion to another religion was efficacious". 

ANTI-CONVERSION LAWS      

Even pre-Independence anti-conversion statutes by Princely States such as the Raigarh State Conversion Act of 1936, the Patna Freedom of Religion Act of 1942, the Sarguja State Apostasy Act 1945 and the Udaipur State Anti-Conversion Act of 1946 were enacted but they were specifically against conversion to Christianity.

Orissa , Madhya Pradesh ,Chhattisgarh ,Gujarat and Himachal Pradesh  are five Indian states to have enacted  anti conversion laws.

 Orissa was the first state to bring such law named as 'Orissa Freedom of Religion Act, 1967'. It was followed by Madhya Pradesh in 1968 and Arunachal Pradesh in 1978. Chhattisgarh in 2000 and Gujarat State in 2003 passed anti-conversion laws.

In the year 1967-1968 two states, Madhya Pradesh and Orissa enacted laws prohibiting certain types of conversions. The Madhya Pradesh Act called the “Madhya Pradesh Dharma Swathantra Adhiniyam” came into force on 21-10-1968 and the Orissa Act called “The Orissa Freedom of Religion Act” came into force on 1-11-1968. The Madhya Pradesh Act was enacted pursuant to a report of a fact finding commission headed by Justice Neyogi, a former Chief Justice.

Both the Acts contain similar provisions except in one respect. In the M.P. Act by Section 5 an obligation was cast upon the person converting another to intimate the fact to the District Magistrate and the rules prescribed the form which requires the details to be furnished as to the name of the convert, his address, age, occupation and whether he belongs to Scheduled Caste or Scheduled Tribe. The date and place of conversion and the address of the house where the conversion ceremony had taken place are also required to be stated. Both the Acts by Section 3 prohibit forcible conversion brought about by use of force, allurement or by any fraudulent means.

Section 4 makes the offence punishable with imprisonment to a term extending one year or with fine which may extend to five thousand rupees. If the offence is committed in respect of a minor, woman or a person belonging to a Scheduled Caste or a Scheduled Tribe the punishment prescribed is two years and fine of ten thousand rupees. Under both the Acts the offences are cognizable and the sanction of the District Magistrate or any officer not below the rank of Sub-Divisional Magistrate authorised by him is a necessary pre-condition for initiating prosecution.

When the constitutionality of both the Acts came up for consideration before the respective High Courts the Orissa Act was struck down by a Division Bench consisting of R.N. Misra and K.B. Panda, JJ

One of the objections raised in the Orissa High Court was that the words force, fraud or inducement have been given extended meanings other than what were assigned to them in the Indian Penal Code (Sections 349,25,366A, 7,415) and this has resulted in interference with the Christian religion.

Threats of divine displeasure or social excommunication constitute the extention of the concept of force.

The conclusions drawn by the Division Bench are as follows:

(1)  Article 25(1) guarantees propagation of religion and conversion is a part of the Christian religion.

(2) Prohibition of conversion by ‘force’ or by ‘fraud’ as defined by the Act would be covered by the limitation subject to which the right is guaranteed under Article 25(1).

(3) The definition of the term ‘inducement’ is vague and many proselytizing activities may be covered by the definition and the restriction in Article 25(1) cannot be said to cover the wide definition.

(4) The State Legislature has no power to enact the impugned legislation which in pith and substance is a law relating to religion. Entry 1 of either List II or List III does not authorise the impugned legislation.

(5) Entry 97 of List I applies.”

On the other hand, the M.P. High Court reached the opposite conclusion and upheld the Act. Interpreting Article 25(1) the court held  that “the freedom of religion is not a monopoly of a single individual, but the freedom is to be enjoyed by a person commensurate with similar freedom to all other individuals.”

The court viewed the matter from the point of public order in respect of which the State is competent to legislate under Entry I, List II of Seventh Schedule. The M.P. High Court did not agree with the views of the Orissa High Court.

Appeals were preferred against both the judgments and a Constitution Bench of the Supreme Court considered the question and sustained the validity of both the Acts.

Chief Justice of India A.N. Ray, heading a five-judge Bench, in Rev. Stainislaus vs. State of Madhya Pradesh, upheld the validity of two regional anti-conversion laws of the 1960s — the Madhya Pradesh Dharma Swatantraya Adhiniyam and the Orissa Freedom of Religion Act.

Chief Justice A.N. Ray who spoke for the court formulated two questions: (1) whether the two Acts were violative of Article 25(1), and (2) whether the State Legislatures were competent to enact them.

 Explaining the amplitude of the right under Article 25(1) he held that:

“Article 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”

On the second question relating to legislative competence, the judgment rests upon the premise that the Acts are intended to deal with public order since they seek to avoid disturbances to the public order.

The reasoning of the Supreme Court thus fully approves the views of the M.P. High Court. The judgment proceeds on two basic postulates, namely, that the right to convert another person is not part of freedom of conscience guaranteed by Article 25(1) and that forcible conversions result in the disturbance of public order.

All these state laws are remarkably similar in scope. None of the laws directly ban conversion. Instead they ban conversions by means of “force, allurement, inducement or fraud” – but of course they leave these terms quite undefined, which gives the administration and its agents almost draconian powers.

For example, “force” also includes the “threat of divine displeasure”. So, if a missionary informs a person that only Christians are allowed entry into heaven which is a core part of the faith that could also be construed as “force”.

Again, “inducement” or “allurement” is defined broadly to include “the offer of any gift or gratification, either in cash or in kind and shall also include the grant of any benefit, either pecuniary or otherwise” (Orissa Freedom of Religion Act, 1967). This problematic definition was even noted by the High Court of Orissa and called out for its extremely wide scope. For example, any charitable work carried out by a religious organisation could come under a “grant of benefit”, as would free education or healthcare.

Unfortunately, in Stanislaus vs State of Madhya Pradesh (1977), the Supreme Court struck down the Orissa High Court’s ruling and upheld this vague definition.

Under the Madhya Pradesh Freedom of Religion (Amendment) Act of 2006, if a person chooses to convert, he has to declare it before the District Magistrate concerned. Even the religious priest who “directly or indirectly participates” should give details of the purification ceremony and details of person whose religion is going to be changed to the District Magistrate with one month’s notice.

The same year saw Chhattisgarh pass a similar law seeking 30 days’ notice from a person desiring to convert and permission from the District Magistrate.

In near past the Tamil Nadu Prohibition of Forcible Conversion of Religion Act 2002 came into force on 5-10-2002. The Act is similar to the M.P. and Orissa Acts.

These local laws make forcible religious conversions a cognisable offence under Sections 295A and 298 of the Indian Penal Code. These provisions stipulate “malice and deliberate intention to hurt the sentiments of others” as a penal offence.

The last attempt made at a central legislation was in 1978 when an All India Freedom of Religion Bill was introduced in Lok Sabha. However it was never discussed and was dropped after the Government fell in July 1979.

In 2013, the Bharatiya Janata Party general secretary Venkaiah Naidu has declared that his party would bring anti-conversion laws nationwide if his party is elected to power in 2014. However, as of April 2015, the party does not yet have a majority in the Upper House of the Parliament.

Criticism as to the laws concerning conversion is mainly based upon:

(1) The ordinary law of the land as contained in the Indian Penal Code is sufficient.

(2) Right of conversion — proselytism is part of certain faiths like Christianity and Islam

(3) The Constituent Assembly has dropped the proposal to incorporate any provision prohibiting conversions.

(4) The legislation is directed against curbing the activities of the minority religions especially in regard to conversions.

These criticisms appear to be unsound and uninformed. There is no basis for the apprehension expressed by the religious leaders that the minority religions are the only targets.

Freedom of religion implies freedom to change religion also. The reasons for conversion are many. History is replete with examples for forcible conversions on a large scale. Conversions also take place either due to allurements or due to the threat of divine displeasure. Illiteracy and ignorance often are the factors which make people cross over from one faith to another. The further impetus for conversions is the poverty and social inequalities including untouchability to which Dalits are subjected to in the Hindu society.

Moreover, conversion is often an ennobling act, allowing individuals to escape persecution as well as acting as a reforming force for a religion as a whole. There is no better example of this than Ambedkar, who spent many years pushing Dalits to convert away from Hinduism. In a powerful speech to the Bombay Presidency Mahar Conference in 1936, Ambedkar declared that, “religion is for man and not man for religion. For getting humane treatment, convert yourselves. Convert for getting organised. Convert for becoming strong. Convert for securing equality. Convert for getting liberty. Convert so that your domestic life should be happy."

Finally, the fact that individuals can be legally tied down to their religion of birth and do not have the full freedom to make their own decisions is one in a long line of measures taken by the Indian state that treats the country as a conglomeration of communities and not of individuals. This is an extremely slippery slope to be on, one that the country must look to get out of.

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