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It is my imperative duty to thank the following people for the successful completion of my Constitutional Law project titled Right to Religion and Right to Conversion:

Prof. Asad Malik for the clarity he brings into teaching, thus, enabling us to have a better understanding of his subject. I also feel obliged to thank him for providing us with such wonderful topics to choose from.

The very cooperative and friendly staff members in the Law Library who were instrumental in our finding the necessary books without wasting much time.

Mubashir Ali Khan

IV Semester

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RELIGION UNDER CONSTITUTION AND RELATED LAWSThe Indian Concept of Secularism

Declaration of Secularism

Constitutionally, India is a pluralistic and a country of religions. It is inhabited by many religions. The framers of constitution thus desired to introduce the concept of secularism, thus, neutrality in matter of religions.1And has no State religion. However, it has developed over the years its own unique concept of secularism that is fundamentally different from the parallel American concept of secularism requiring complete separation of church and state, in U.S.A, religious freedom is guaranteed by the First Amendment. The government is forbidden to pass a law “respecting an establishment of religion” as well as law “prohibiting the free exercise of law.”2 As also from the French ideal of lacite - described as 'an essential compromise whereby religion is relegated entirely to the private sphere and has no place in public life whatsoever'.

On 1 May 1947, Vallabhbhai Patel rose in the Constituent Assembly to move a Constitutional clause that dealt with the right to freedom of conscience and religion. For a subject so controversial, the proceedings in the Assembly were remarkably peripheral. The debate, if it can be called that, was on defining a place of worship and throwing open all Hindu temples to everyone. In his concluding remarks, Patel said, “there might be differences of opinion, but on the whole we have tried our best to accommodate all sections of the people”.

The framers of the Constitution gave ample scope to this vital freedom. They did not single out any religion for special treatment and the notion of a majority religion finding a special place in the fundamental law of the country was anathema to them.

Article 25 to 28 seek to protect religion and religious practices from state interferences. India has no preferred or state religion as such; all religions are treated alike and enjoy equal constitutional protection without any favour or discrimination. No specific protection has been accorded to any religion. However, the policy of non- interference with religious freedom has not been taken to the length of allowing a religion to impinge 1 M.P.JAIN Indian Constitutional Law, 7th ed. Pg. 12442 Harry E. Grooves, Religious Freedom, 4 JILI, 191 (1962)

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adversely on the secular rights of the citizens, or on the state power to regulate socio-economic matters.

Six decades later, the vision of the founding fathers appears to be in trouble. The generous Constitutional provision—Article 25 that enshrines this freedom—is being contested by some as being too lax. For others, it is too constricted. Parliament has been buffeted by protests by opposition members alleging that the ruling Bharatiya Janata Party (BJP) and its affiliates have dark designs to convert Muslims and Christians to Hinduism. Others want an unimpeded right to convert persons from one faith to another. The spectre of religious controversy and violence haunts India.

Legally, the position is clear. The Supreme Court has held that there is no fundamental right to conversion. The illiberal trappings of an anti-conversion law, however, do contain a rare appeal. In fact, the Supreme Court of India has taken a kind viewing towards such laws. In 1977, in Rev. Stainislaus v. State of Madhya Pradesh,3, [referring to the word ‘propagate’ in Art. 25(1)] what art. 25 grants, “is not the right to convert another person to ‘one’s own religion’ but to transmit or spread one’s religion by an exposition of its tenets”. A five-judge bench of the court delivered a verdict on the constitutional validity of two of the earliest pieces of anti-conversion legislation in India: The Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968, and the Orissa Freedom of Religion Act, 1967, both of which, with no small dash of irony, restrict, as opposed to promote, religious liberty.4

The two statutes are akin in that they both envisage intimation to the District Magistrate every time a conversion takes place, and in that they both prohibit — and impose criminal liability on — conversion or attempt to conversion by the use of force or by inducement (allurement, in the case of the Madhya Pradesh law) or by any other fraudulent means. The definitions prescribed for these terms however are decidedly vague, capricious, and prone to causing substantial harm. The Orissa law, for example, defines force, inclusively, to mean “a show of force or a threat for injury of any kind including threat of divine displeasure or social 3 (AIR 1977 SC 908)4 http://www.thehindu.com/opinion/lead/conversion-and-freedom-of-religion/article6716638.ece

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excommunication.” And inducement is defined even wider, to include “the offer of any gift or gratification, either in cash or in kind,” including “the grant of any benefit, either pecuniary or otherwise.”

Despite the clear incorporation of all the basic principles of secularism into various provisions of the Constitution when originally enacted, its preamble did not then include the word 'secular' in the short description of the country which it called a 'Sovereign Democratic Republic’. This was not an inadvertent omission but a well-calculated decision meant to avoid any misgiving that India was to adopt any of the western notions of a secular state. Twenty-five years later by which time India's own concept of secularism had been fully established through judicial decisions and state practice the preamble to the Constitution was amended by the Constitution (Forty-second Amendment) Act 1976 to include the word 'secular' along with 'socialist', to declare India to be a 'Sovereign Socialist Secular Democratic Republic'.5

This goes into the heart of the problem and shows why the current debates are misleading. Read properly, Article 25 allows any person—when he makes an individual choice to convert. Even the laws that allegedly ban conversions—such as the one in Madhya Pradesh that dates back to 1968—allow a person to change his/her religion. That is clear: no law can deny a person his freedom to choose what he wants to profess or believe in.6

In an early case after the commencement of the Constitution a court had examined the US principle of the 'wall of separation' between religion and State and Concluded that there are provisions in the Indian Constitution which are ‘inconsistent with the theory that there should be a wall of separation between Church and State' - Narayanan Namboodripad v State of Madras7.

5 D.D. Basu, ‘Commentary of the Constitution of India’ (Vol. 1, 2 &3), 8th Ed., (Lexis Nexis, Nagpur), 2007 & 2008.6 Religious freedom under our constitution and social reform-- By H. M. Seervai, October 19887 AIR 1955 Mad 385.

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In the leading case of SR Bommai v Union of India8 nine-judges of the Supreme Court of India individually explained the significance and place of secularism under the Constitution in very meaningful words sampled below:

According to SAWANT, J.; religious tolerance and equal treatment of all religious groups and protection of their life and property and of the places of their own worship are an essential part of secularism enshrined in our constitution.

(i) The Constitution has chosen secularism as its vehicle to establish an egalitarian social order. Secularism is part of the fundamental law and basic structure of the Indian political system.

(ii) Notwithstanding the fact that the words 'Socialist' and 'Secular' were added in the Preamble of the Constitution, the concept of secularism was very much embedded in our constitutional philosophy from the very beginning. By this amendment what was implicit was made explicit.

(iii) Constitutional provisions prohibit the establishment of a theocratic State and prevent the State from identifying itself with or otherwise favouring any particular religion

(iv) Secularism is more than a passive attitude of religious tolerance. It is a positive concept of equal treatment of all religions.

(v) When the State allows citizens to practice and profess their religion, it does not either explicitly or implicitly allow them to introduce religion into non-religious and secular activities of the State. The freedom and tolerance of religion is only to the extent of permitting pursuit of spiritual life which is different from the secular life. The latter falls in the exclusive domain of the affairs of the State.

The state guarantees to individuals and corporates religious freedom. It deals with an individual as a citizen irrespective of his faith and religious belief. The state neither promotes nor prefers any one specific religion. A secular state does not extend any patronage to any particular religion. Therefore, the constitution leaves the purely religious matter to the individual and permits the state to take charge of their secular matters.

8 AIR 1994 3 SCC 1

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In M. Ismail Faruqui v. Union of India9-observed in relation to the concept of secularism: According to VERMA, J., delivering the majority opinion “it is clear from the constitutional scheme that it guarantees equality in the matter of religion to all individuals and groups irrespective of their faith emphasizing that there is no religion of the state itself. The concept of secularism is the one facet of the right to equality woven as the central golden thread in the texture depicting the pattern of the scheme in our constitution”.

In Aruna Roy v. Union of India10 the Supreme Court has ruled out the concept of secularism is not endangered if the basic tenets of all religion all over the world are studied and learnt. Value based education will help the nation to fight against fanaticism; ill-will, violence, dishonesty and corruption. These values can be inculcated if all the basic tenets of all the religions are learnt.

In State of Karnataka v. Praveen Bhai Thogadia11: The Supreme Court upheld the order of the Additional District Magistrate, Dakshina Kannada restraining Dr. thogadia from entering the district and from participating in any function in the District for the period of 15days.

PASAYET, J., speaking for the court said: Whenever the authorities concerned about the charge of law and orders finds that a person’s speeches or actions are likely to trigger communal antagonism and hatred resulting in chaos and disorder tendencies gaining foothold, undermining and affecting communal harmony, prohibitory orders need necessarily to be passed, to effectively avert such untoward happening.

Proposed Amendments

On two different occasions attempts were made to amend the Constitution with a view to further strengthening and clarifying its provisions on secularism, but the Bills moved for this purpose could not be enacted for technical reasons. Among these Bills were:

9 AIR 1995 SC 60410 (2002) 6 SC 40811 (2004) 4 SCC 684

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(a)Constitution (Forty-fifth) Amendment Bill 1978 proposing to define the expression 'Secular Republic' as 'a Republic in which there is equal respect for all religions'.

(b)Constitution (Eightieth Amendment) Bill 1993 seeking to empower Parliament to ban parties and associations if they promote religious disharmony and disqualify members who indulge in such misconduct.

Equality & Non-Discrimination

The Constitution of India contains in its Chapter on Fundamental Rights several provisions that emphasize complete legal equality of its citizens irrespective of their religion and creed and prohibit any kind of religion-based discrimination between them. Among these provisions are the following:

1. The State shall not deny to any person equality before the law or the equal protection of the laws within the territory of India - Article 14.

2. The State shall not discriminate against any citizen on grounds only of religion, race, caste, sex, place of birth, or any of them, either in general or in the matter of access to or use of general and public places and conveniences - Article 15.

3. There shall be equality of opportunity for all citizens in the matter of employment or appointments under the State and no citizen shall, on grounds only of religion be ineligible for, or discriminated against, in respect of any employment or office under the State - Article 16.

4. The traditional religious concept of 'untouchability' stands abolished find its practice in any form IN .strictly forbidden - Article 17.

5. If the State imposes compulsory service on citizens for public purposes no discrimination shall be made in this regard on the ground of religion only - Article 23(2).

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Freedom of Religion

Individual's Rights

Religious freedom as an individual's right is guaranteed by the Constitution to 'all persons' within the following parameters:

1. All persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion - Article 25(1).

2. There shall be freedom as to payment of taxes for promotion of any particular religion by virtue of which no person shall be compelled to pay any taxes the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religious denomination - Article 27.

3. No religious instruction is to be provided in the schools wholly maintained by State funding; and those attending any State- recognized or State-aided school cannot be required to take part in any religious instruction or services without their (or if they are minor their guardian's) consent - Article 28.

Both individual freedom under article 25, and the freedom of religious denominations, under article 26, has been expressly made subject to public order, morality and health in the Indian Constitution, The expression “public order” is of wide connotation signifying a state of tranquillity prevailing among the members of a political society as result of the internal regulations enforced by the government instituted by them.12 It can be postulated that public order is synonymous with public peace safety and tranquillity.13 It is the first and the most fundamental duty of every government to preserve order, since order is the condition precedent to all civilization and advance human happiness.14 Having realised that it is in the interest of liberty itself, that it should be restricted, the framers of the Constitution have subordinated religious freedom of public order, thus, the freedom of conscience and right freely to profess, practise and propagate religion and freedom to manage religious affairs can be curtailed either in the interest or for the maintenance of public order. Therefore, it cannot be predicated that freedom of religion can have no bearing whatever on the

12 Romesh Thapar v. State of Madras, AIR 1950 SC 12413 Suprintendent, Central Prison v. Ram Manohar Lohia, AIR 1960 SC 63314 Niharendu Dutt Mjumdar v. Emperor, AIR 1942 FC 22

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maintenance of public order or that a law creating an offence relating to religion cannot, under any circumstances, be said to have been enacted in the interest of public order.15

Group Rights

Freedom of religion is guaranteed by the Constitution of India as a group right in the following ways:

1. Every religious denomination or any section thereof has the right to manage its religious affairs; establish and maintain institutions for religious and charitable purposes; and own, acquire and administer properties of all kinds - Article 26.

2. Any section of the citizens having a distinct language, script or culture of its own shall have the right to conserve the same - Article 29.

3. Religious and linguistic minorities are free to establish and administer educational institutions of their choice, which shall not be discriminated against by the State in the matter of giving aid or compensation in the event of acquisition - Article 30.

Fundamental Duties

The Chapter on Fundamental Duties, inserted into the Constitution by the Constitution (Forty-second Amendment) Act 1976, includes the following among the basic national obligations of all the citizens:

1. To promote harmony and the spirit of common brotherhood amongst all the people of India transcending religious, linguistic and regional or sectional diversities - Article 51A(e).

2. To value and preserve the rich heritage of our composite culture - Article 51A (f).

Religious Matters under Distribution of Powers under Article 246 of the Constitution read with Schedule VIII various religious matters noted below fall in the jurisdiction of the State - and both Parliament and the state legislatures, or either of them, can legislate on such mutters: 15 Ramji Lal Modi v. State Of UP AIR 1957 SC 620

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i. Pilgrimage outside India - Union List, entry 20; ii. Pilgrimage within India - State List, entry 7; iii. Burials & burial grounds, cremations & cremation grounds -

State List, entry 10; iv. Family relations, succession & all other personal-law

matters -Concurrent List, entry 5; v. Charities, charitable institutions & endowments - Concurrent

List; entry 28; vi. Religious endowments & religious institutions - Concurrent List,

entry 28.

What is Religion?

The term ‘religion’ has not been defined in the Constitution, and it is a term which is not susceptible to any precise definition. The Supreme Court has given this term an expansive content.

The Supreme Court has observed in Lakshmindra16: “Religion is certainly matter of faith with individuals or communities and it is not necessarily theistic. There are well known religions in India like Jainism and Budhism which don not believe in God or in any intelligent First Cause”

The guarantee under Art. 25 subject to the exceptions mentioned confers a fundamental right on every person not merely-

i) To entertain such religious beliefs as are aloowed to him by his jedgement or conscience, but also

ii) To exhibit his beliefs and ideas in such overt and outward acts and practices as are sanctioned and enjoyed by his religion, and further

iii) To propagate and disseminate his religious beliefs, ideas and views for the benefit and edification of others.

As the Supreme Court has observed in P.M.O Metropolitan v. Moran Mar Marthoma17: “‘Religion is the belief which binds spiritual nature of men to super-natural being’. It includes worship, belief, faith, devotion etc. and extends to rituals. Religious right is the right of a person believing in a particular faith to practise it, preach it, and profess it.”

16 Commr., HRE, Madras v. Sri Lakshmindra AIR 1954 SC 282, 29017 AIR 1995 SC 2001

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Arbitrarily withholding of the travel documents resulting in pilgrims being deprived of performance of Haj has been held to be violative of Articles 25.18

In Gulam Abbas v. State of Uttar Pradesh19: in a writ petition under article 32, the Supreme Court had enforced the customary religious rights of the Shia community on the piece of land. The court said that the state could not interfere with the established customary rights to perform their religious ceremonies and functions.

Cow sacrifices has been held to be not an obligatory overt act for the Muslim to exhibit his religious beliefs and ideas on Bakr Id day.20

According to Hedaya, it is optional for Muslim to sacrifice a goat and that for seven goats a cow or a camel. “The very fact of an option seems to run counter to the notion of an obligatory duty.” This ruling has been reiterated by the Supreme Court in State of West Bengal v. Ashutosh Lahiri21. There is no Fundamental Right of a Muslim to insist on slaughter of a healthy cow on Bakr Id day. The Court has observed:22 “Slaughtering of healthy cows on EID days is not an essential or required for religious purposes of Muslims or in other word it is not part of religious requirement for a Muslim that a cow must be necessarily sacrificed for earning religious merit on Bakr Id”

A second marriage by a Hindu male in the presence of his first wife does not constitute an integral part of the Hindu religion.23

Performance of Shradh and offering of Pinda are an integral part of Hindu religion and religious practices.24

18 Abdul Gani Sofi v. Haj Committee AIR 2009 J&K 4019 AIR 1981 SC 219820 Mohd. Hanif Qureshi v. State of Bihar, AIR 1958 SC 73121 AIR 1995 SC 46422 Abdul Jalil v. State of Uttar Pradesh, supra. 23 State of Bombay v. N.B. Mali AIR 1952 Bom. 8424 R.M.K. Singh v. State of Bihar AIR 1976 Pat. 198

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Performance of tandava dance by Anand Margis in procession or public places is not an essential religious rite to be performed by every Anand Margis.25

The Supreme Court has observed in Lily Thomas v. Union of India26: “Freedom guaranteed under Art. 25 of the constitution is such freedom which does not encroach upon similar rights of another person.”

The Constitution uses but does not define the expressions 'religion' and 'religious denomination' and therefore the courts have found it necessary to explain the meaning and connotation of these words.

The Supreme Court has observed that: In the background of the provisions of the Constitution and the light shed by judicial precedent we may say that religion is a matter of faith. It is a matter of belief and doctrine. It concerns the conscience, i.e., the spirit of man. It must be capable of expression in word and deed, such as worship or ritual - SP Mittal v Union of India27.

Interpreting the constitutional provisions relating to freedom of religion the Supreme Court has observed:

The right to religion guaranteed under Articles 25 & 26 is not an absolute or unfettered right; they are subject to reform on social welfare by appropriate legislation by the state. The Court therefore while interpreting Article 25 and 26 strikes a careful balance between matters which are essential and integral part and those which are not and the need for the State to regulate or control in the interests of the community — AS Narayana Deeshitalyu v State of Andhra Pradesh28.

25 Jagdishwaranand v. Police commissioner, Calcutta, AIR 1984 SC 51.26 2000 SC 165027 AIR 1983 SC 128 (1996) 9 SCC 548

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There have been numerous other rulings explaining the scope and connotation of the religious liberty provisions in the Constitution. Given below is a summary of the landmark rulings:

Articles 25-30 embody the principles of religious tolerance that has been the characteristic feature of Indian civilization from the start of history. They serve to emphasize the secular nature of Indian democracy which the founding fathers considered should be the very basis of the Constitution - Sardar Suedna Taiiir Saifiiddin v State of Bombay29.

Freedom of conscience connotes a person's right to entertain beliefs and doctrines concerning matters which are regarded by him to be conducive to his spiritual wellbeing - Ratilal Panachand Gandhi v State of Bombay30.

To profess a religion means the right to declare freely and openly one's faith - Punjab Rao v DP Meshram31.

Religious practices or performances of acts in pursuance of religious beliefs are as much a part of religion as faith or belief in particular doctrines - Ratilal Panachand Gandhi v State of Bombay32.

What constitutes an integral or essential part of a religion or religious practice is to be decided by the courts with reference to the doctrine of a particular religion and includes practices regarded by the community as parts of its religion- Seshammal v State of Tamil Nadu33.

The right to profess, practise and propagate religion does not extend to the right of worship at any or every place of worship so that any hindrance to worship at a particular place per se will infringe religious freedom - Ismail Faruqi v Union of India34.

Under Article 25 to ‘propagate’ religion means ‘to propagate or disseminate his ideas for the edification of others' and for the purpose of this right it is immaterial 'whether propagation takes place in a church or

29 AIR 1962 SC 853.30 AIR 1954 SC 388.31 AIR 1965 SC 117932 AIR 1954 SC 38833 AIR 1972 SC 158634AIR 1994 6 SCC 360

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monastery or in a temple or parlour meeting' - Commissioner, Hindu Religious Endowments, Madras v Lakshmindra Thirtha Swamiar of Sri Shirur Mutt35.

To claim to be a religious denomination a group has to satisfy three conditions: common faith, common organization and designation by a distinctive name - SP Mittal v Union of India36.

The expression 'matters of religion' in Article 26 extends to acts done in pursuance of religion and covers rituals, observances, ceremonies and modes of worship - Jagannath Ramanuj Das v State of Orissa37; Dargah Committee v Husain AH38.

A religious denomination has the right to lay down the rites and ceremonies to be performed by its members - Ramanuj v Tamil Nadu State39.

A 'common burden' (e.g., land revenue) which is imposed on all does not violate the right of a religious denomination - Govt. of Tamil Nadu v Ahobila40.

Property of a religious denomination violating the agrarian reform and land ceiling laws can be lawfully acquired by the State - Narendra v State of Gujarat41.

A law which takes away the right of administration from a denomination and vests it in a secular body would infringe upon the Constitution - Ratilal Panachand Gandhi v State of Bombay42.

Since the State is secular and freedom of religion is guaranteed both to individuals and groups, it is against the constitutional policy to pay out of public funds any money for the promotion or maintenance of a particular religion - Commissioner, Hindu Religious Endowments v LT Swamiar43.

35 AIR 1954 SC 28236 AIR 1983 SC 137 AIR 1954 SC 40038 AIR 1961 SC 140239 AIR 1972 SC 158640 AIR 1987 SC 24541 AIR 1974 SC 209842 AIR 1954 SC 38843 AIR 1954 SC 282

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The festivals are public holidays everywhere, in several parts of the country birthdays of some other religious figures including Ganesh, Hanuman, Guru Gobind Singh, Guru Ravidas and Rishi Balmiki, are also observed as closed days. A part from these birthday-festivals, there are public holidays throughout India also for some other Hindu, Muslim and Christian festivals (or days of mourning) including Holi, Deepawali, Dasehra, Raksha Bandhan, Eid-ul-Fitr, Eid-ui-Azha, Muharram and Good Friday.

There has been a tradition in India since long, shared by all communities, to take out religious processions on public streets. Such processions are specially arranged on most of the religions festivals referred to above. The law of India approves this right of the religious communities subject to the general laws for maintaining law and order and protecting public mobility. The leading judicial decisions on this right and its limits include Mmizur Hasan v Muhammad Zaman44; Muhammad Siddiqms v State of UP45.

It was held in an Allahabad case that the right is inherent and does not implicit on custom. It is not, however, a license for 'committing nuisance' on the highway. Protecting the right of the processionists to observe their religious practices, the court observed:

Worshippers in a mosque or temple which abuts on a highway have no right to compel the processionists to stop their music completely while passing a mosque or temple on the ground that there was continuous worship inside it. Even if music, whether religious or not, offends against the religions sentiments of another community, it cannot be objected to on Hint ground. The stopping of the music would offend the religious sentiments of the processionists just as much as its continuance may affect the religions sentiments of others. Therefore there can be no right to insist on its complete stoppage. - Muhammad Jalil v Ram Nath46.

Scheduled Castes Order 1950

The Constitution of India makes several special provisions for the Scheduled Castes who are to be identified by the government (in the name of the President) and whose official list may from time to time be amended 44 (1924) 52 IA 6145 (1955) 1 All 12146 (1930) 53 All 484

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by Parliament. The Constitution (Scheduled Castes) Order 1950 issued under this provision provided the first list of the Scheduled Castes but made the list religion-specific.

Initially the 1950 Order restricted the Scheduled Castes net to the Hindu religion, although the castes included in the net were shared by various other communities. Later, Sikhs and Buddhists were also included in the net by amendments introduced in 1956 and 1990 respectively.

All other religious communities – including, mainly, the Christians and the Muslims who share many vocation-based castes with the Hindus - hitherto remain outside the Schedules Castes net.

Since as a local custom of general prevalence the caste system is found in vogue also among the Christians and the Muslims, demands have been made by these communities from time to time for the removal of the religion-related Proviso from the Scheduled Castes Order of 1950 so that the lower castes among them may also be included in the Scheduled Castes net and benefit from the special measures introduced for them. They have had recourse to the courts also for this relief but the courts have not agreed to it due to the egalitarian nature of Christianity and Islam in their puritan form. The Supreme Court has observed:

Christianity and Islam are religions prevalent not only in India but also in other countries of the world. We know that in other countries these religions do not recognize a system of caste as an integral part of their creed or tenets. ...The general rule is that conversion operates as expulsion from the caste; in other words a convert ceases to have any caste - S. Rajagopal vs CM. Armugam & Ors47.

Several fresh writ petitions filed by the Christians and Muslims for removal of the religious affiliation clause from the Constitution (Scheduled Castes) Order 1950, clubbed together, are currently under hearing in the Supreme Court.

Conversion by a Scheduled Caste Member

If a Hindu, Sikh or Buddhist Scheduled Caste person converts to any other faith he ceases to remain in- the net and loses all the benefits extended to 47 AIR 1976 SC 939

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Scheduled Castes. However, such a person may reconvert to Hinduism and will thereupon regain all those lost benefits. Such effects of conversion and reconversion by 'members of the Scheduled Castes have has been affirmed in several judicial decisions -S. Swvigaradoss v Zonal Manager, FCl48.

As regards the rights of Scheduled Castes reconverting to Hinduism, the Supreme Court has observed:

The objects and purposes of the Constitution (Scheduled Castes) Order 1950 would be advanced rather than retarded by taking the view that on reconversion to Hinduism a person can once again become a member of the Scheduled Caste to which he belonged prior to his conversion - CM Ammugam v S. Rajgopal49.

Conversion by a Scheduled Castes person to Christianity or Islam would also take him out of the ambit of a law enacted by Parliament for the protection of Scheduled Castes from social atrocities of various kinds, viz., the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act 1989.

Whether ‘right to conversion’ is envisaged under Article 25?

One of the most controversial questions associated with religion for the last several decades in India is, whether ‘right to freedom of conversion’ is accompaniment of ‘right to freedom of religion’ envisaged in Article of the Constitution.

Unlike some of the International Instruments,50 which expressly recognise freedom of conversion, there is no express provision referring to the ‘conversion’ in the Constitution of India. 51Yet, the plain reading of Article 48 AIR 1996 SC 118249 AIR 1976 SC 93950 See for example, Article 18 of UDHR; Article 18 of ICCPR, 1966 Right to Conversion, under these instruments, connotes individual right of a person to quit one religion and embrace another voluntarily. They do not envisage right of a person to convert another to ones’ own religion.51 However, it does not follow that the issue of conversion had never been given a thought in the process of making Indian Constitution. Perhaps it is one of the most controversial issues that were deliberated upon in the constituent Assembly. The report of the Sub- committee on fundamental rights headed by J.B. Kriplani

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25, implies that the ‘freedom of conversion’ emerges from ‘freedom of conscience’.

In upholding these laws, Chief Justice A.N. Ray, who delivered the judgment, adopted a muddled approach to interpreting Article 25 of the Constitution. Article 25 states that subject to public order, morality and health, and to the other fundamental rights guaranteed in the Constitution, all persons are equally entitled to “freedom of conscience and the right freely to profess, practise and propagate religion.” Justice Ray interpreted the word “propagate,” to mean “to transmit or spread one’s religion by an exposition of its tenets,” but to not include the right to convert another person to one’s own religion. “It has to be remembered that Article 25(1) guarantees ‘freedom of conscience’ to every citizen, and not merely to the followers of one particular religion,” wrote Justice Ray, “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.”

Justice Ray’s reasoning, however, clearly conflates the issue. If a person’s right to propagate his religion does not include a right to freedom of speech aimed at seeking conversions, would not such a right be purely illusory? As the constitutional law scholar, H.M. Seervai, observed, in response to the decision in Stainislaus, “to propagate religion is not to impart knowledge and to spread it more widely, but to produce intellectual and moral conviction leading to action, namely, the adoption of that religion. Successful propagation of religion would result in conversion.” Therefore, when a person converts to another religion, based on speech, which aims at producing such conversion, he or she is, in fact, exercising a general right to freedom of conscience.

submitted to the chairman of the Advisory committee Sardar Vallabhai Patel on April 16, 1947 contain two provisions, one of the effect that: “no person under the age of 18 shall be made to join or profess any religion other than the one in which he was born or be initiated into any religious order involving loss of civil status

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In confusing a person’s liberty to exercise free conscience for another person’s right to propagate religion, Justice Ray’s verdict produced damaging results. A conclusion that propagation ought to be restricted only to the edification of religious tenets is a reasoning that gratifies the interests of the majority, and the majority alone. Or, as Mr. Seervai observed, “it is productive of the greatest public mischief.”

In the decades that have followed Stainislaus, the Madhya Pradesh and Orissa laws — and similar legislation enacted in Gujarat, Rajasthan and Himachal Pradesh — have been used by State governments to target conversions to minority religions, in particular, upsetting, thereby even the most basic commitment to secularism.

The decision in Stainislaus is however incorrect not merely due to its tangible consequences. The case relates to a fundamental, and more nuanced, issue of intervention by the state — and its courts — in religious affairs. Anti-conversion laws allow the state the authority to determine what constitutes an illegitimate inducement, and, in doing so, they create a slippery slope. They promote increased governmental involvement in matters that involve pure ethical choices, and they ingrain a deep and dangerous form of paternalism: the state is always watching you, and it has nothing but your best interests in mind. This ought to be a matter of grave concern.

Right to conversion & Anti-conversion laws in India

BR Ambedkar declared in 1935: "I was born a Hindu; I had no choice. But I will not die a Hindu because I do have a choice." On October 14, 1956, two months before his death, he along with nearly six lakh of his followers left Hinduism to become Buddhists. As chairman of the drafting committee of India's Constitution, he codified freedom of religion, legal equality and abolished caste discrimination. His life experiences and precepts continue to influence interpretations of the Constitution, and particularly in the determination of the original intent of the framers.52 52 http://economictimes.indiatimes.com/news/politics-and-nation/law-against-religious-conversions-would-go-against-the-fundamental-right-of-choice/articleshow/46728231.cms

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The intent of the constituent assembly was to allow each citizen to profess any religion and to propagate it as well. It was TT Krishnamachari who explained the formulation best:

"Sir, it does not mean that this right to propagate one's religion is given to any particular community or to people who follow any particular religion. It is perfectly open to the Hindus and the Arya Samajists to carry on their Suddhi propaganda as it is open to the Christians, the Muslims, the Jains and the Buddhists and to every other religionist, so long as he does it subject to public order, morality and the other conditions that have to be observed in any civilised government. So, it is not a question of taking away anybody's rights. It is a question of conferring these rights on all the citizens and seeing that these rights are exercised in a manner which will not upset the economy of the country, which will not create chaos and which will not create undue conflict in the minds of the people."

Thus the founding fathers wanted religious beliefs to be transacted in the marketplace of ideas. They wanted the citizen to be able to exercise an informed choice, if he so chose. They also expected the transactions not to be economically or socially disruptive. They chose therefore not to have a state religion or a preferred religion, and to allow the citizen a freedom to both profess and propagate whatever religion he chose to. A separation of church and state was accompanied by an indifference to the choice of faith professed by the individual citizen.

What the founding fathers wrought has been slowly eroded away since the 1980s. The Shah Bano controversy and the Mandal-Mandir phase of Indian politics began highlighting identities marked by sectarian lines. For both the citizen and the state, religion has been moved from benign neglect to malign observance. To add to the inner fissures that beset the country, the world has also seemingly moved towards a clash of civilisations.

Since the elections of 2014, conversions, re-conversions and matters of faith have been debated with unprecedented fervour. A mandate for economic change may get derailed by a quagmire of religious conversion and re-conversion. Religions have been accused of increasing their follower count by unfair means of force, inducement and coercion.

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Equally, some religious convertors have claimed that reversion to ancestral faiths is not a conversion, but a homecoming of sorts. When such arguments continue, with an eruption of petty violence against religious places, what has suffered is the image of the country as a relatively tolerant, multi-faith, stable democracy.

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.53

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

53 Constitutionality of anti-conversion laws- The Statesman, Faizan Mustafa

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losers in an imperialist struggle, part and parcel of forced assimilation. The resurgent right today wants to follow the British.

During 1967-68, 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.

The Modi government favours the enactment of a national anti-conversion law on the basis of the apex court judgment in Rev. Stanislaus v State of Madhya Pradesh54, in which it was held that the MP Freedom of Religion Act, 1968 and Orissa Freedom of Religion Act, 1968 are valid and not ultra-vires to the Constitution, even though both these Acts were hindrances in the propagation of one’s religion. It was held that the ‘right to propagate’ does not mean the ‘right to convert’. Soli Sorabjee, former attorney general of India during the BJP rule, had favoured the need for the review of the above decision and suggested that the judgment deserves reconsideration. Justice Mathew of the Supreme Court also observed that all consideration applicable to freedom of speech and expression under Article19 (1) (a) are applicable to the ‘right to propagate’. The right to propagate one’s idea is inherent in the concept of speech and expression. Two vital facts must be kept in mind about the above decision. First, it was given in an era when judicial activism was still in its infancy and secondly, today, since the apex court has given a very liberal interpretation to other fundamental rights such as right to life and equality, the highly restrictive meaning given to the word ‘propagation’ in 1977 is certainly not in tune with the emerging human right jurisprudence of the court. Freedom to convert should not be curtailed as it alone promotes ‘freedom of conscience’. We are forced to follow the religions of our parents. It is conversion which gives us ‘choice’. Rather than enacting a conversion 54 (AIR 1977 SC 908)

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law, the apex court should review its own decision, which is not only against the assurances given to Christians in the Constituent Assembly debates but also against international law.55

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 55 http://www.hindustantimes.com/comment/let-s-talk-about-poverty-first-before-faith/article1-1300097.aspx

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State. The Orissa High Court recorded the finding that “Article 25(1) guarantees propagation of religion and conversion as a part of Christian religion”. 

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.

Bibliography:

1) M.P.JAIN Indian Constitutional Law, 7th ed.

2) D.D. Basu, ‘Commentary of the Constitution of India’ (Vol. 1, 2 &3), 8th Ed., (Lexis Nexis, Nagpur), 2007 & 2008.

3) Religious freedom under our constitution and social reform-- By H. M. Seervai, October 1988

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Webliography:

1) http://www.thehindu.com/opinion/lead/conversion-and-freedom-of-religion/ article6716638.ece

2) http://economictimes.indiatimes.com/news/politics-and-nation/law-against-religious- conversions-would-go-against-the-fundamental-right-of-choice/articleshow/46728231.cms

3) http://www.hindustantimes.com/comment/let-s-talk-about-poverty-first-before-faith/ article1-1300097.aspx

4) Constitutionality of anti-conversion laws- The Statesman, Faizan Mustafa

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