Tuesday, September 16, 2008

Freedom of religion as guaranteed by law

Conversion debate

V.VENKATESAN
in New Delhi

The violence in Orissa is the result of prejudice caused by a flawed understanding of the freedom of religion as guaranteed by law.

THE HINDU PHOTO LIBRARY


Rajendra Narayan Singh Deo, Ganatantra Parishad (Swatantra Party) leader, was the Chief Minister when the Orissa Freedom of Religion Act, 1967, was passed

ORISSA was the first State in India to enact a piece of legislation restricting religious conversions. The Orissa Freedom of Religion Act, 1967, provides that no person shall “convert or attempt to convert, either directly or otherwise, any person from one religious faith to another by the use of force or by inducement or by any fraudulent means”.

What were the compulsions in 1967 for Orissa to enact this law, which became a precedent and a model for several States, namely, Madhya Pradesh (1968), Arunachal Pradesh (1978), Gujarat (2003), Chhattisgarh (2003), Rajasthan (2005), Himachal Pradesh (2006), and Tamil Nadu (a law was enacted in 2002, but repealed in 2004)?

Before Independence, some princely states enacted anti-conversion laws meant to protect the local people from religious conversion against their free will. Among these were the Raigarh State Conversion Act, 1936, the Sarguja State Apostasy Act, 1942, and the Udaipur State Anti Conversion Act, 1946.

The adoption of the Constitution of India in 1950, with Article 25 guaranteeing freedom of conscience and free profession, practice and propagation of religion, these pre-Independence Acts were seen more as anachronisms and were allowed to lapse with the integration of the princely states into the Indian Union. But suspicions lingered over the activities of Christian missionaries, especially in States such as Madhya Pradesh and Orissa, which had large tribal populations.

The Government of Madhya Pradesh set up a committee to inquire into the activities of Christian missionaries in the State. The committee’s report focussed on, among other things, the inflow of money from abroad. This raised concerns about the misuse of the money in the garb of social service and charitable activities. Strangely, the report of this Madhya Pradesh committee became the basis for Orissa’s law.

Does conversion undermine faith?

The basic premise of the Orissa Act was debatable. The Act claimed: “Conversion in its very process involves an act of undermining another faith. This process becomes all the more objectionable when this is brought about by recourse to methods like force, fraud, material inducement and exploitation of one’s poverty, simplicity and ignorance.” As the Orissa Act became the model for other States, which provided more scope for abuse by the authorities than what the Orissa Act had envisaged, it deserves a close scrutiny.

The Act defines conversion as renouncing one religion and adopting another. It explains that “force” shall include a show of force or a threat of injury of any kind, including the threat of divine displeasure or social excommunication. Under the Act, “inducement” shall 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. “Fraud” has been defined to include misrepresentation or any other fraudulent contrivance. Each of these definitions is amenable to varied interpretations, and the scope for its abuse is inherent.

Section 3 of the Act states that no person shall convert or attempt to convert, either directly or otherwise, any person from one religious faith to another by the use of force or by inducement or by any fraudulent means nor shall any person abet any such conversion. The loose language in the provision suggests that in its scope, it encompasses every act of conversion, whether forced or otherwise.

The Madhya Pradesh Act introduced an additional provision requiring that whoever converts any person, either as a religious priest or by taking part directly or indirectly in a ceremony necessary for such conversion, must send an intimation to the District Magistrate that such a conversion has taken place. Failure to do so would invite imprisonment up to one year and a fine. The Act substitutes the word “inducement” used in the Orissa Act with “allurement” but makes no difference in the scope of its abuse.

Both the Orissa and Madhya Pradesh Acts were challenged in the respective High Courts. The Orissa High Court declared the Orissa Act ultra vires of the Constitution, insofar as it infringed upon the right guaranteed by Article 25. The court also held that the State legislature had no legislative competence to enact such a law, as only Parliament could legislate on matters concerning religion under Entry 97 of the Union List under the Seventh Schedule to the Constitution. Both the States had claimed that they were competent to legislate in terms of Entry 1 of List II (State List) dealing with public order. However, the Madhya Pradesh High Court upheld the Madhya Pradesh Act.

The Supreme Court’s five-Judge Constitution Bench heard the appeals against these two verdicts in Rev. Stainislaus vs. State of Madhya Pradesh and Others (1977) and upheld these Acts. As the Supreme Court’s judgment became a sort of licence for other States to enact similar anti-conversion laws, it needs to be asked whether the judgment was correct. The court considered whether the two Acts were violative of the fundamental right guaranteed under Article 25(1) of the Constitution and whether the State legislatures were competent to enact them.

Right to propagate

K. PICHUMANI


AIADMK leader J. Jayalalithaa. Tamil Nadu enacted an anti-conversion law in 2002, when she was Chief Minister, only to repeal it in 2004

Under Article 25(1), subject to public order, morality and health and to the other provisions of Part III of the Constitution dealing with Fundamental Rights, all persons are equally entitled to the freedom of conscience and the right freely to profess, practise and propagate religion. The court rejected the argument that the right to “propagate” one’s religion meant the right to convert a person to one’s own religion.

Relying on the dictionary meaning of the word “propagate”, the court held that what Article 25 granted was 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. The court further held that Article 25(1) guaranteed “freedom of conscience” to every citizen, and not merely to the followers of one particular religion, and that, in turn, postulated that if a person purposely undertook 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 alike to all citizens.

There are enough reasons to suggest that the court’s ruling needs reconsideration by a larger Bench. H.M. Seervai, the eminent author of Constitutional Law of India, whom the Supreme Court often cites in its many judgments as an authority in support of its conclusions, has pointed out in Volume 2 (1993) of his book that it was unfortunate that the legislative history of Article 25 was not brought to the Supreme Court’s attention in this case (page 1287). Seervai wrote:

“When the matter was debated in the Constituent Assembly, there was considerable discussion on the word ‘propagate’. In the course of the debate, T.T. Krishnamachari pointed out what is clear from the language of Article 25 itself, namely, that it was ‘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 it is subject to public order, morality and the other conditions that have to be observed in any civilized society’.

“But the speech of Mr. K.M. Munshi gave the historical background of Article 25(1) in the paragraph set out below, in which he pointed out the insertion of the word ‘propagate’ was the result of a compromise to reassure the minority communities, particularly the Indian Christian community. He said:

‘Moreover, I was a party from the very beginning to the compromise with the minorities, which ultimately led to many of these clauses being inserted in the Constitution and not because they wanted to convert people aggressively, but because the word ‘propagate’ was a fundamental part of their tenet. Even if the word were not there, I am sure, under the freedom of speech which the Constitution guarantees it will be open to any religious community to persuade other people to join their faith. So long as religion is religion, conversion by free exercise of the conscience has to be recognised. The word ‘propagate’ in this clause is nothing very much out of the way as some people think, nor is it fraught with dangerous consequences’” (emphasis added by Seervai).

Seervai was clear that Chief Justice A.N. Ray’s conclusion in the Stainislaus judgment ran counter to legislative history. He submitted that Chief Justice Ray did not ask the central question that was involved in the appeals before him, namely, whether conversion was a part of the Christian religion. This omission, he said, was indefensible because the judgment of the Orissa High Court delivered on October 24, 1972 (Yulitha Hyde vs. State), was under appeal to the Supreme Court and that judgment had squarely raised the central question whether conversion was a part of the Christian religion.

In its judgment, the Orissa High Court had held: “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 the religion. Learned Govt. Advocate does 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” (emphasis added by Seervai).

The High Court thus recorded its finding that Article 25(1) saw propagation of religion and conversion as a part of the Christian religion. Seervai observed that the Supreme Court, which reversed the judgment of the Orissa High Court, made no attempt to show that the question raised and decided was either irrelevant, or was wrongly decided. It is clear from Seervai’s comment that the Orissa High Court’s finding still holds the field, irrespective of what the anti-conversion statutes enacted by various States may say.

Seervai also explained the basic misconception in the judgment of Chief Justice Ray. He wrote: “Ray C.J. mistakenly believed that if A deliberately set out to convert B by propagating A’s religion, that would impinge on B’s ‘freedom of conscience’. But, as we have seen, the precise opposite is true: A’s propagation of his religion with a view to its being accepted by B gives an opportunity to B to exercise his free choice of a religion.”

Freedom of religion

Seervai was convinced that the “freedom of religion” guaranteed in Article 25(1) is not limited to the religion in which a person is born but includes any religion. Freedom of conscience, he wrote, harmonises with this, for its presence in Article 25(1) shows that our Constitution has adopted “a system which allows free choice of religion”. Therefore, freedom of conscience gives a person freedom to choose or not to choose any one of the many religions that are being propagated.

He elaborated further: “The right to propagate religion gives a meaning to freedom of choice, for choice involves not only knowledge but an act of will. A person cannot choose if he does not know what choices are open to him. 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” (italics supplied by Seervai). Seervai concluded his discussion thus: “The Supreme Court’s judgment is clearly wrong, is productive of the greatest public mischief and ought to be overruled.” The huge atmosphere of prejudice against Christians in Orissa and elsewhere is based on a myth that conversion is unconstitutional. The words of Seervai, who passed away on the Republic Day in 1996, are indeed prophetic.

‘Public order’ and anti-conversion laws

A study carried out by the South Asia Human Rights Documentation Centre (SAHRDC), New Delhi, and published in Economic and Political Weekly (January 12, 2008) has revealed that none of the anti-conversion laws enacted by the States demonstrates any credible nexus with public order, a justification for the enactment of these laws. The study points out that while the phrase “public order” is very broad, the discretion this leaves to the State legislatures is not unlimited. The State should be required to demonstrate adequately that the disturbance extends beyond mere maintenance of law and order and qualifies as a public order issue, on the basis of its scale and extent, the study has pointed out.

The Rajasthan Bill (before its enactment), for instance, merely stated that owing to alleged conversions by force, allurement and fraud, there had been “annoyance in the community”, a weakening of the “inter-religious fabric”, and “law and order problems”. The Bill, therefore, aimed to curb illegal activities and maintain harmony amongst persons of various religions – objectives which could only be termed as vague and irrelevant to the legislation. Indeed, the SAHRDC study found that the crucial distinction between public order and law and order was not reflected in the language of these pieces of legislation.


Courtesy_

http://www.flonnet.com


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