Preliminary

In March 2014, the UN’s Special Rapporteur on religious freedom said that India’s ‘anti-conversion’ laws threaten religious freedom. This is not a coincidence. The Gujarat High Court is readying to pronounce on a constitutional challenge to the Gujarat Freedom of Religion Act, 2003, which was brought into effect in 2009. Now, more than ever in the history of independent India, the prospect of pervasive anti-conversion laws appears greater. At the heart of the matter is a view, which was once peripheral but is now forcefully growing in India’s national discourse, that India’s homogeneity has been compromised by religious conversions.

The incidence of intercommunity religious violence, which Indian newspapers stoically refer to as “communal tension”, as a result of religious conversions – mostly, conversions out of the Hindu fold – must be seen in light of the evolution of India’s constitutional religious freedom protections. The ‘right to propagate’ one’s religion is the root of the issue. Is it an unfettered right?; if not, what are its limitations?; are conversions detrimental to public order? – these legal questions require final and authoritative answers. So too do the emotive claims that spring therefrom, such as the matter of whether Indians do in fact share a homogenous past that must – as the claim goes – be restored by acknowledgement.

The ‘right to propagate’ in the Constituent Assembly

Conscious of its role in stewarding India’s vast multicultural diversity, the Constituent Assembly created a separate Minorities Sub-committee to function under Vallabhbhai Patel’s Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas. While discussing the draft Fundamental Rights chapter on 19 April 1947, M. Ruthnaswamy suggested that proselytizing religions like Christianity and Islam should also be allowed to propagate their faith. Two days later, the entire freedom of religion clause was reviewed, including the provisions regarding the right to propagate a faith. Despite the view that such a right was already included in the ‘free speech’ clauses, it was decided that the right to propagate one’s faith should be retained in the freedom of religion clauses.

The ‘right to propagate’ protection was preserved in both the Constitutional Advisor’s Draft Constitution of October 1947 (the Constitutional Adviser was Sir Benegal Narsing Rau who is, unfortunately, nowadays known as ‘B. N. Rao’) and the Draft Constitution of February 1948. Upon receiving feedback, the overwhelming view was to preserve the ‘right to propagate’. Ironically, during the debate on this provision, Tajamul Husain denied the need for a ‘right to propagate’, arguing that religion was a personal affair. This view was supported strongly by others, including Loknath Mishra, who took the view that the ‘right to propagate’ was divisive. However, most members agreed that since the ‘right to propagate’ was subject to public order, health and morality, it had no dangerous implications and, in any event, such a right was implicit in the right to free speech.

To regulate the ‘right to propagate’ in exercise of its permissible restrictions – public order, health, and morality – two Bills were introduced in Parliament within the decade after the Constitution was adopted. Both the Indian Conversions (Regulation and Registration) Bill, 1954 and the Backward Communities (Religious Protection) Bill, 1960 failed to enthuse Parliament and were defeated. Simply put, conversions did not excite national opinion; the fact that it is an important issue now speaks to the success of anti-conversion speech in the national discourse. The important point to note is that Parliament believed it was legislatively competent to occupy the field.

State laws and the Stanislaus case

In her book, Dr. Goldie Osuri describes how in pre-Independent India the rulers of the Princely States, always from dominant upper castes, colluded with zamindars and social elites to issue anti-conversion laws to control dalits and adivasis. In Independent India, there have been two distinct phases of anti-conversion legislation in India: the late 1960s and again in the 2000s. The second phase promises to revive itself in the months and years ahead, conditional upon the result of the (inevitable) Supreme Court appeal to decide on the validity the Gujarat Freedom of Religion Act, 2003 (the Gujarat Act goes a step beyond its peers by subjecting conversions to the prior permission of the District Magistrate).

In the first phase, Orissa enacted the Orissa Freedom of Religion Act, 1967 and Madhya Pradesh enacted the Madhya Pradesh Dharma Swatantrya Adhiniyam, 1968 to police conversions. The ostensible reason for their enactment was that conversions were a threat to public order; and, that it was necessary to police and criminalize any inducement or fraud in matters of conversion. The emphasis on ‘public order’ arose to preclude challenges as to legislative competence; by invoking the field of ‘public order’, the States claimed the right to legislate on the subject (by virtue under Entry 1, List II, Schedule VII of the Constitution).

Was public order the pith and substance of conversions? In the case of Reverend Stanislaus v. State of Madhya Pradesh AIR 1975 MP 163, the Madhya Pradesh High Court thought it did, but did not examine the legislation in any detail. The Orissa High Court held otherwise – taking the view that ‘public order’ was not exercised; and, that in any event the policing and criminalising of conversion provisions were over-broad and arbitrary [see, Yulitha Hyde v. State of Orissa AIR 1973 Orissa 116].

With two conflicting decisions leaving the law unsettled, the matter reached the Supreme Court, during the Emergency, in Reverend Stanislaus (1977) 1 SCC 677. The Supreme Court heard the Orissa and Madhya Pradesh cases together and decided that the primary issue related to the power of the States to enact anti-conversion legislation (the legislative competency question). It treated as secondary the issue of whether the freedom of religion guaranteed by Article 25 (including the ‘right to propagate’) of the Indian Constitution was infringed by anti-conversion legislation (the fundamental rights question).

On both questions, the judgment has been criticised. Hormasji M. Seervai has argued that the judgment was flawed because it did not even examine the Orissa High Court decision which it overruled. Seervai also rightly points out that there was no legislative competence in the States to interfere with the freedom of religious conversions, which was a Fundamental Right and hence free (with exceptions) from legislation. No doubt, freedom of religion is subject to public order. In Ramji Lal Modi (1957) SCR 866) the Supreme Court had clearly stated that “… it cannot be predicated that freedom of religion has no bearing on the maintenance of public order…” This is unexceptional. But, there is a vast difference between restricting conversions on the basis of public order, which is a permissible basis of restriction, and policing the ‘right to propagate’ itself. The former falls within the State’s domain, but the latter belongs to the Parliament, if anywhere at all. The Supreme Court’s reasoning is too thinly veiled to be convincing.

Conversion and public order

The Supreme Court’s own test – derived from the decision in Arun Ghosh (1970) 1 SCC 93 – is that in order to attract the permissible ‘public order’ restriction, the impugned religious practice (such as conversion) must affect “the current of the life of the community”. The Supreme Court then reposed confidence in a tenous thread of argument:

Thus, if an attempt is made to raise communal passions e.g. on the ground that some one ‘forcibly’ converted to another religion, it would in all probability give rise to an apprehension of a breach of the public order.

There are two things wrong with this reasoning. First, it draws a false causal link between a private conversion and public order when, in fact, it is the duty of the law and the state to protect innocent individual exercises of freedom. In doing so, it places the burden of preserving public order on the person who wishes to privately convert and excuses the lumpen mob that actually causes public disorder and violence. This does not apply to excuse fraudulent or forcible conversions, which are adequately met by existing criminal law. Secondly, by requiring the convert to prove that her conversion was bona fide, it disprivileges the convert’s free and rational choice to practice, renounce, or honor any religion of her choice. The Supreme Court found nothing wrong with the idea of asking a convert to prove the earnestness of the conversion. But nothing could be more inquisitional than asking a person who has changed her faith to prove that decision to convert was a rational one, especially when the choice of faith is a matter of private faith and choice.

Unfortunately, the Supreme Court simply assumed that because there could be a connection between conversions and public order, there must be one. Hence, conversions were per se contrary to public order. This is disingenuous and incorrect.

Religious freedom to convert

But, if the Stanislaus decision is unfounded on questions of legislative competency, it also suffers in the manner in which it balances the freedom of religion against the demands of public order. As a foundational principle of constitutional interpretation, it is the rights that are fundamental and not the limitations. The term ‘public order’ may be given a wide interpretation when dealing with legislative competence, but it has a very limited meaning when considering the restraints that can be imposed on a fundamental right. In a series of cases, the Supreme Court has insisted that when considering the impact of state action on a Fundamental Right, there is a difference between ‘law and order’, ‘public order’ and ‘security of state’. See, Ram Manohar Lohia AIR 1966 SC 740, Madhu Limaye (1970) 3 SCC 746, Arun Ghosh (1970) 1 SCC 98, and B. Sunder Rao (1972) 3 SCC 11. Mere criminal offences do not relate to public order. Nor can the exercise of a choice to convert be related to public order.

What Stanislaus seems to have overlooked is the secular fabric of India’s Constitution, which has been repeatedly upheld by the Supreme Court and even held to be a part of the ‘basic structure’ of the Constitution. A few months before the Stanislaus decision, the 42nd Amendment in 1976 (to the Constitution) inserted the word “Secular” in the Preamble to make explicit what was already implicit in the Constitution. Secularism had been mentioned in the seminal Kesavananda Bharti case (1973) 4 SCC 225. In Ahmedabad St. Xavier’s (1974) 1 SCC 717, the Supreme Court reiterated the importance of protecting the religious rights of minorities to stand apart from majoritarianism and flourish in India’s diversity. This view was maintained in Ziyauddin (1976) 2 SCC 17 where Justice Beg, one of the signatories to the Stanislaus decision, spoke of the importance of secularism to the Constitution

There is now no doubt that the Constitution ensures that secularism is a foundational building-block of the Constitution which permeates constitutional and statutory interpretation. See, Bommai (1994) 3 SCC 1, Bhukhari (1976) 2 SCC 17, Faruqui (1994) 6 SCC 360, Mohd. Aslam (1996) 2 SCC 749, R. K. Poudyal (1994) Supp 1 SCC 324, Valsamma Paul (1996) 3 SCC 546, and Sarla Mudgal (1995) 3 SCC 635. It was also repeatedly made clear in the Constituent Assembly that the ‘right to propagate’ was a part of free speech. Reasonable restrictions can only be placed on free speech on the basis of very defined parameters relating to contempt of court, defamation, morality, official secrecy, the sovereignty and the integrity of the nation, public order and security of state [Article 19(1)(a) read with Article 19(2) of the Constitution]. None of this was considered by the Supreme Court.

The strange politics of conversion

Stanislaus must stand out as an Emergency decision, made shortly before the retirement of Chief Justice Ray. Unfortunately, while many criticised the Supreme Court’s decision, no occasion arose to challenge it. The issue of legislation on conversion was revived in various states at various times. After Madhya Pradesh and Orissa, the second phase of anti-conversion legislation was enacted through the Tamil Nadu Prohibition of Forcible Conversion of Religion Act, 2002; the Gujarat Freedom of Religion Act, 2003; the Rajasthan Dharma Swatantrya Adhiniyam, 2006; the Himachal Pradesh Freedom of Religion Act, 2006 (enacted by a Congress government); and, the Chhattisgarh Dharma Swatantrya Adhiniyam, 1968 (extended, after the State’s partition, from the previous Madhya Pradesh statute).

The case of Tamil Nadu is instructive. For cynical electoral gain, and happy to appease the then NDA government at the Centre, Chief Minister Jayalalitha ordered the enactment of anti-conversion legislation, then promulgated an Ordinance to repeal the legislation in the face of minority protests and, finally, allowed the Ordinance to lapse. In 2006, the Chhattisgarh law was preceded by a truly peculiar, nay bizarre, government Circular, which read as follows:

The people of Chattisgarh have been following religions such as Brahmanism, Buddhism, Shaivism, Gondi Religion, Kabir religion and Satnami religion, Sikhism, Jainism, which are called Hindus. In being called Hindu other people except Brahmins have objections because Hindu religion is nothing, but belief in Brahmin Religion. And the meaning of the term Hindu in Pharsi Dictionary is given as Thief, Dacoit and Looters and Hindu term is a Pharsi word. Therefore, the Government has taken a decision that all those who follow and believe in the basic religion of the Indian Origin in Chattisgarh shall be entitled to mention in all Government records their basic religion as per their belief. But, these will be considered as Indian religion. In India only Christians & Muslims are foreign religions. By following and adopting any of the above mentioned basic religions of Indian origins the constitutional rights of the Chattisgarh people shall remain as such. (sic)

The culmination of policing conversions

The principal effect of these anti-conversion laws is to criminalise conversions to stifle free speech. Equally, they permit – by social more than legal sanction – the stridency of intolerant speech. Judgments like Stanislaus have only worsened the situationed. There is a concerted attempt to re-populate the national imagination with divisiveness and chauvinism. This vision of India now commands the currency of power. This is a slow strangulation of the idea of India. It must be met with constructive and determined resolve. When the Supreme Court hears the appeal on the Gujarat anti-conversion law, it will be a historic opportunity to overturn the Stanislaus decision and return pluralism and inclusiveness to the national imagination.