'Right to Religion Doesn't Include Right to Convert': Is the Government Right?

Earlier this year the Delhi High Court had said that religious conversion was a fundamental right.

In an affidavit to the Supreme Court, the Central Government has stated that the Right to Religion doesn't include the Right To Convert. But is this view in step with India's Constitution?

(Photo: Namita Chauhan/Altered by The Quint)

The Freedom of Religion does not include a fundamental right to convert people to other faiths, the Union government told the Supreme Court on Monday, 28 November.

It also said that it is “cognisant of the menace” of alleged conversions and that the laws that “seek to control such practices are necessary to protect the cherished rights of vulnerable sections of the society, including women and economically and socially backward classes.”

The government’s stance was part of an affidavit filed in response to a plea by a Bharatiya Janata Party (BJP) leader Ashwini Kumar Upadhyay, seeking stringent steps to control fraudulent religious conversion by “intimidation” and through “gifts and monetary benefits.”

Upadhyay is no stranger to filing petitions seeking intervention on alleged “forced conversions.”

In 2021, a Supreme Court bench headed by Justice RF Nariman had come down heavily on a similar petition by him, saying:

“I do not see a reason as to why any person above 18 years cannot choose his religion. There is a reason why the word "propagate" is there in the Constitution.”

The judges had pulled up his lawyer and threatened to impose a heavy fine if the petition wasn’t withdrawn.

Earlier in 2022, the Delhi High Court also took issue with Upadhyay, while disposing of yet another of his religious conversion petitions:

"(Religious) conversion is not prohibited in law. Every person has a right to choose and profess any religion of his/her choice. It is a Constitutional right," Justice Sanjeev Sachdeva had observed.

Clearly, none of these oral observations by courts in the country stopped Upadhyay from filing a petition at the Supreme Court once again.

But now that the Central government has shared a view in the apex court that seems to be in support of Upadhyaya's petition, it is worth examining if the government’s claim that the freedom of religion does not include the right to convert, is in step with our Consitution.

Here’s What Courts Have Said

In the 2017 privacy judgement (Justice K.S. Puttaswamy vs. Union of India) which held that the right to privacy is protected as a fundamental right under Articles 14, 19 and 21 of the Constitution of India, the Supreme Court said:

“Liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and self-determination require a choice to be made within the privacy of the mind.”

And then went on to add:

“The constitutional right to the freedom of religion under Article 25, thus has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world.”

In another alleged ‘Love Jihad’ case of 2018, (Shafin Jahan vs Asokan K.M) where the parents were displeased that their daughter had married a Muslim man and claimed that their daughter had been converted to Islam by ‘force,’ the Supreme Court had again said:

“Choosing a faith is the substratum of individuality and sans it, the right of choice becomes a shadow.”

The Word ‘Propagate’ Is the Point of Contention

The Central government, however, has overlooked the more recent Supreme Court judgements, and chosen to cite one specific verdict from 1977 in its affidavit.

Citing a five-judge constitution bench ruling in the Rev Stanislaus vs State of Madhya Pradesh case, the Centre submitted:

“The meaning and purport of the word ‘propagate’ falling under Article 25 of the Constitution was discussed and debated in great detail in the constituent assembly and the inclusion of the said word was passed by the constituent assembly only after the clarification that the Fundamental Right under Article 25 would not include the right to convert.”

Important to note here is that the constituent assembly, after much debate, "did use the word 'propagate' as part of the fundamental rights of Indians to profess, propagate, and practice their religions," Senior Supreme Court Advocate Sanjay Hegde confirmed to The Quint.

As opposed to the government's claims, there was opposition to forcible conversions but not the Right to convert.

However, the Supreme Court in the Stanislaus verdict had ruled that the word ‘propagate’ in the Constitution of India did not include the right to convert another person to the propagator’s religion.

The Quint took the view of former Chief Justice of Rajasthan and Bombay High Courts, Pradeep Nandrajog, who said:

So, I can go to people and say that Hinduism is a very good religion, it gives you better choices, I think you should follow it but does it becomes a problem when someone converts to Hinduism after this?

Former Chief Justice of the Rajasthan and Bombay High Courts Pradeep Nandarajog to The Quint.

“How can you draw a clear line and say propagation doesn’t include conversion? How do you decide?” he added.

The criticism, however, doesn’t end there.

“The judgement of the Supreme Court in Stanislaus is deeply problematic,” believes senior Supreme Court Advocate Sanjay Hegde, writing for The Quint.

He points out that the 1977 ruling came at the height of the emergency when the Supreme Court’s “thinking on fundamental rights was greatly restricted by its judgement in ADM Jabalpur v. Shivkant Shukla (1976).”

In the ADM Jabalpur case, which is also referred to as one of the Supreme Court's darkest judgements, the top court held that a person’s right to life cannot be enforced by a High Court under Article 226 during a national emergency.

In 2020, a three-judge bench of the Supreme Court observed in State of U.P. versus Sudhir Kumar Singh  that “much water has flowed” since this judgement, which was delivered during the emergency when the fundamental rights of persons were suspended.”

The Government’s Stance Also Violates India’s International Obligations

Article 18 of the International Covenant on Civil and Political Rights, which India is a party to, ensures the right to freedom of thought, conscience and religion. 

The multilateral treaty signed by 74 nations, which is considered to be part of the International Bill of Human rights, further explains:

“This right [freedom of thought, conscience and religion] shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others, and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.”

“India in 1979 adopted the convention in totality, 2 years after the Stanislaus judgment, which the government is relying upon. Such a stand taken by the government is against its own international obligations,” Delhi-based lawyer Aman Naqvi pointed out to The Quint.