Propagation without proselytisation: what the law says

Legislative and legal history validates the Opposition argument that there is no need for a new anti-conversion law.

The Fundamental Right to “propagate” one’s religious faith has always trodden on slippery ground. Legislative history and judicial precedents have remained wary of the tipping point when the “basic human right” to spread religion translates into conversion through force, fraud or allurement.

Article 25(1) of the Constitution says “all persons,” not just Indian citizens, are equally entitled to the freedom of conscience and the right to profess, practise and propagate religion freely.

Legislative and legal history validates the Opposition argument that there is no need for a new anti-conversion law. The original intention of the Constituent Assembly and the interpretation of Article 25 by the Supreme Court later on clearly differentiate the right to propagate from the right to convert other persons to one’s own religion. The former is a Fundamental Right, the latter, if forcibly done and not by choice of the person converting, is illegal. The law is already clear. Again, a five-judge Bench of the Supreme Court has upheld the validity of individual States to enact Freedom of Religion laws to ensure public order.

However, the Winter Session of Parliament saw the heat on conversions go a notch up. Finance Minister Arun Jaitley, as Leader of the House in the Rajya Sabha, asked if the Opposition was “willing for a total ban on religious conversions or a ban on forcible religious conversions?”

“Let them tell us the option. The government is ready for either of the two options,” Mr. Jaitley said.

To go back in history, one has to start with the morning of December 6, 1948, at the Constitution Hall where the Constituent Assembly debated the inclusion of “right to propagate” as a Fundamental Right.

Here, Lokanath Misra cautions the Assembly that “the cry of religion is a dangerous cry.” “It denominates, it divides, and encamps people to warring ways.”

“Today, religion in India serves no higher purpose than collecting ignorance, poverty and ambition under a banner that flies for fanaticism. The aim is political, for in the modern world all is power-politics and the inner man is lost in the dust,” he said.

Misra advised the Assembly that everybody should have the right to profess and practise their religion as they saw best, but not to “let him try swell his number to demand the spoils of political warfare.”

But Pandit Lakshmi Kanta Maitra disagreed that “propagation does not necessarily mean seeking converts by force of arms, by the sword, or by coercion.” He argued the Fundamental Right to propagate may probably work to remove the “misconceptions” in the minds of the people about other co-existing religions in this land of different faiths.

H.V. Kamath then rose to talk of the “real meaning” of the word “religion.” He pointed to how Dharma, in the most comprehensive sense, should be interpreted to mean the true values of religion and spirit. He pointed to how this young nation was moulding its Constitution in the background of a “war-torn, war-weary world.”

Kamath argued that even as no particular religion should receive State patronage, “we must be very careful to see that in this land of ours, we do not deny anybody the right not only to profess or practise but also to propagate any particular religion.”

“This glorious land of ours is nothing if it does not stand for the lofty religious and spiritual concepts and ideals. India would not be occupying any place of honour on this globe if she had not reached that spiritual height which she did in her glorious past,” he argued.

But over the years, these lofty ideals have been replaced by immediate concerns about propagation.

The Supreme Court has unequivocally declared that the right to propagate does not mean the right to convert.

In his January 2011 judgment on the murders of Graham Staines, an Australian missionary who worked with the tribal people in Orissa, and his two sons, Justice P. Sathasivam wrote, “It is undisputed that there is no justification for interfering in someone’s belief by way of use of force, provocation, conversion, incitement or upon a flawed premise that one religion is better than the other.”

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.

The court dissected Article 25 to hold that “the Article does not grant the right to convert other persons to one’s own religion but to transmit or spread one’s religion by an exposition of its tenets.”

“What is freedom for one is freedom for the other in equal measure and there can, therefore, be no such thing as a fundamental right to convert any person to one’s own religion,” the court interpreted.

In reference to the 1954 judgment of Ratilal Panachand Gandhi vs. State of Bombay, the court held that the “freedom of conscience [the right to believe in one’s faith] is not meant merely for followers of one particular religion but extends to all.”

The Supreme Court, in reference to the Arun Ghosh vs. State of West Bengal verdict of 1950, holds that an attempt to raise communal passions through forcible conversions would be a breach of public order and affect the community at large. Thus, it held that the States were empowered under Entry 1 of List II of the Seventh Schedule of the Constitution to enact local Freedom of Religion laws to exercise its civil powers and restore public order.

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. But many human rights organisations and scholars argue that anti-conversion laws have less to do with fraud and more to do with violence against Christians.

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 specifically against conversion to Christianity.

Over the years, more Freedom of Religion Bills have found their place in legislative history, including in Arunachal Pradesh in 1978 and Gujarat in 2003.

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. With the Himachal Pradesh Freedom of Religion Act, 2006, the State became the first Congress-ruled one to adopt a law prohibiting forcible conversions.