SC Message for Bajrang Dal: Propagating Religion Is Not a Crime

Article 25 protects right to propagate one’s religion, which can’t be undermined by vigilante groups.

Image used for representational purposes.

(Photo: Shruti Mathur / The Quint)

On 24 March 2021, a video surfaced showing two Catholic nuns and two postulants hounded by right-wing goons allegedly belonging to the Bajrang Dal, who alleged that the nuns were forcefully converting the two girls into Christianity.

The two nuns and two postulants were travelling from New Delhi to Rourkela in Odisha on 19 March. The nuns and postulants belong to the Sacred Heart Convent under the Kerala-based Syro-Malabar Church. A ruckus was created by the Bajrang Dal members as the train reached Jhansi in Uttar Pradesh.

Taking note of this ghastly incident, the Kerala Chief Minister Pinarayi Vijayan wrote to Union Home Minister Amit Shah calling it “shocking” and said that the “fundamental rights” of Indian citizens have been violated.

The attack on Catholic nuns is a criminal act under the Indian Penal Code, which is not justified under any legislation. No law currently in force, either in the country or in the state of Uttar Pradesh, allows civilians to hound someone even on the strongest suspicion for “religious conversion”.

Such instances are a direct violation of the state’s responsibility under Article 25 of the Constitution, which gives all persons, and not just citizens, freedom to propagate their religious beliefs.

Can We Freely Propagate Our Religious Beliefs?

On April 09, 2021, while dismissing a petition seeking regulations to control forced conversions, the Supreme Court orally observed: “We don’t see a reason as to why any person above 18 cannot choose his religion”. The bench headed by Justice Rohinton Nariman further reiterated that, “There is a reason why the word 'propagate' is there in the Constitution.”

To trace the meaning underlying the protection under Article 25 of the Constitution, we need to revisit the debates of the Constituent Assembly itself. During the debate on whether India should have a fundamental right to propagate religion, HV Kamath gave the assembly “the true meaning of religion”.

Kamath speaking at a Parliamentary conference on world government in 1952Source: BCCL

While arguing that no particular religion should be granted state patronage, Kamath submitted: “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.”

HV Kamath

Scholars, such as Bhagwan Josh and Christophe Jaffrelot, have argued that the inclusion of the word “propagation” in Article 25 was a victory for more liberal Assembly members over “Hindu traditionalists who had opposed conversion and the right to the propagation of religion”.

In the SR Bommai v. Union of India case, the Supreme Court clearly stated that secularism does not mean an atheist society, but a heterogeneous society providing equal status to all religions without favouring or discriminating against any one.

Moreover, in Stanislaus Rev v. State of Madhya Pradesh, the court provided the meaning of “propagate, practice and profess” under Article 25 by highlighting that the right to propagate one’s religion means the right to communicate a person’s beliefs to another person or to expose the tenets of that faith.

The Slippery Slope of Conversion

While Article 25 grants the freedom to practise and profess religion, it doesn’t give the right to practise religious conversions. In the Stainislaus vs State of Madhya Pradesh case, while upholding the validity of anti-conversion laws of Madhya Pradesh and Odisha, the Supreme Court said, “Article 25 does not grant the right to convert other people to one’s own religion, but to transmit or spread one’s religion by an exposition of its tenets.”

This has created room for state governments to make anti-conversion laws that tend to criminalise such acts under sections 295A and 298 of the Indian Penal Code. Such laws are often driven by political interests and come as indirect attacks on the fundamental rights to equality, liberty, and gender justice of those professing minority religions. Colloquial terms such as ‘anti-Love Jihad law’ used to describe the recently promulgated “Freedom of Religion” ordinances in BJP-ruled states expose the actual motivation behind such laws - legitimisation of anti-minority politics.

These anti-conversion laws conflate the propagation of religion and forceful conversions which results in provisions that undermine a citizen’s right to free conscience and right to make a choice.

Vijaykant Chauhan teaching a class of 12th standard kids how to protect themselves against ‘Love Jihad’.(Photo: Abhishek Ranjan/The Quint)

Senior Advocate Jayna Kothari believes that the recently promulgated anti-conversion law of Uttar Pradesh is “discriminatory” and “violates the right to equality” as the state government provided no data to show the harm caused by inter-faith marriages.

Kothari argues that imposing restrictions on marriage purely on the ground of religion violates right to equality under Article 15 of the Constitution which prohibits any discrimination solely on the basis of religion, caste, sex, class, etc.

The Need For Courts To Intervene

While UP’s anti-conversion law claims to be “religion-neutral” on paper, its application on the ground in multiple cases, exposes the law’s real intent: targeting minority communities.

As per reports, all the 35 persons arrested so far under the anti-conversion law are Muslims. For instance, a Muslim teenager was booked under the new anti-conversion law for walking a former classmate, a 16-year-old Dalit girl, home after a birthday party in UP’s Bijnor. His 16-year-old friend, however, has categorically denied any wrongdoing on the part of her Muslim friend.

Vayuna Gupta, an advocate practising in the Gujarat High Court, told The Quint that 'Love jihad’ is a political construct. The ordinance promulgated with the motivation to restrict ‘love jihad’ is a clear attempt at suppressing minorities, more particularly Muslims, with the lack of belief in voluntary conversion to a minority religion for marriage.

“Choosing a faith is a substratum of individual liberty and freedom of expression guaranteed by the Constitution. So is the right to live with a person of one’s choice irrespective of the religion professed by them. A mandatory, and not directory, requirement to declare an intention to convert — to the State — is an infringement of these rights.”

Vayuna Gupta