“A much talking judge is an ill-tuned cymbal,” said Francis Bacon. In the age of 24/7 television and social media, every comment and remark by a judge of the Supreme Court becomes a matter of intense deliberation amongst the people.
While dealing with Ashwini Upadhyay, a spokesperson of the BJP, Justice M.R. Shah was reported to have said:
“...with respect to alleged conversion of religion, if it is found to be correct and true, is a very serious issue which may ultimately affect the security of the nation as well as the freedom of religion and conscience of the citizens. Therefore, it is better that the Union government may make their stand clear and file counters on what further steps can be taken by Union and/or others to curb such forced conversions, maybe by force, allurement or fraudulent means.”
These comments have been dutifully amplified by Noida noisemaker channels and have echoed through WhatsApp forwards and social media hashtags. The comments played to the popular trope that native Indic religions are under threat from Abrahamic religions.
Indeed, such fears are not new. In the constituent assembly, they were echoed by people like Lokanath Misra, who, while expressing his opinion against the propagation of religion as a fundamental right, stated that:
“If people should propagate their religion, let them do so. Only I crave, let not the Constitution put it as a fundamental right and encourage it. Fundamental rights are inalienable and once they are admitted it will create bad blood. I therefore say, let us say nothing about rights relating to religion. Religion will take care of itself. Drop the word 'propagate' in Article 19 at least. Civilisation is going headlong to the melting pot. Let us beware and try to survive.”
Anti-Conversion Laws: The History
The constituent assembly finally used the word ‘propagate’ advisedly, as part of the fundamental rights of Indians to profess, propagate, and practise their religions.
Despite this clear constitutional provision, it was the Congress governments of Odisha and Madhya Pradesh which first brought in laws against conversion of religions, ironically called the “Freedom of Religion” Acts.
The Odisha High Court in Mrs. Yulitha Hyde And Ors. vs State of Orissa (1972) held the Orissa Freedom of Religion Act, 1967 to be unconstitutional.
However, the Madhya Pradesh High Court in Rev. Stanislaus v. State of Madhya Pradesh (1977) upheld a similar act. Both judgments travelled in appeal to the Supreme Court, and on 17th January, 1977 a 5-judge bench of the Supreme Court upheld the Madhya Pradesh High Court judgement.
The Supreme Court 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 Supreme Court, in their reasoning, emphasised on the fact that the word ‘propagate’ under Article 25(1) did not grant the right to convert another to one’s own religion but rather grants the right to propagate or disseminate one’s religious thoughts and traditions keeping in mind one’s “freedom of conscience.”
The court ruled:
“It has to be appreciated that the freedom of religion enshrined in the Article is not guaranteed in respect of one religion only, but covers all religions alike, and it can be properly enjoyed by a person if he exercises his right in a manner commensurate with the like freedom of persons following the other religions. What is freedom for one, is freedom for the other, in equal measure, and there can therefore be no such thing as a fundamental right to convert any person to one's own religion.”
Ever since then, it has been the conventional wisdom to assume that the Constitution permits people to profess and propagate their religion but not to convert others to their religion.
But What Does 'Propagation' Really Mean?
The judgement of the Supreme Court in Stanislaus is deeply problematic.
To say that you could tell another person the precepts of your religion but you could not formally welcome them into it or make them a follower of your faith is an incomplete exercise of the right of propagation.
The word ‘Propagate’ is derived from ‘prɒpəɡeɪt’ which is a Latin term. While there are multiple meanings to the word, the meaning that is of significance to us is "to transmit or spread from person to person or from place to place; carry forward or onward; diffuse; extend; as propagate a report; to propagate the Christian religion," borrowed from the Century Dictionary Vol. VI.
Thus, the right to freely propagate religion guaranteed under Article 25 of the Constitution, also gives the right to converts to freely profess and practise a religion of their choice.
We must also realise that the judgement in Stanislaus was delivered 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 ADM Jabalpur, the court proceeded on the footing that fundamental rights were only a gift of the constitution and they could be suspended anytime during the emergency.
This limited view was destroyed soon after the emergency by the judgement in Maneka Gandhi v. Union Of India (1978), which expanded the scope of Article 21 linking it with Articles 14 and 19 of the Constitution.
It invigorated Part III of the Constitution and made fundamental rights more than just a mere grant of privilege by the State but rather an inherent right of every citizen. In 2020, a three-judge bench of the Supreme Court noted in State of U.P. versus Sudhir Kumar Singh that “much water has flown” since this judgement, which was delivered during the emergency when the fundamental rights of persons were suspended.”
In recent times, nine judges in the privacy case of Justice K.S. Puttaswamy and Anr. v. Union of India and Ors. (2018), have included autonomy of choice under Article 21 of the Constitution of India.
Justice DY Chandrachud, in his concurring judgement, held privacy to be “the constitutional right to the freedom of religion under Article 25" and said that it "has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world."
"These are some illustrations of the manner in which privacy facilitates freedom and is intrinsic to the exercise of liberty."
Further he held that “while the right to freely “profess, practice and propagate religion” may be a facet of free speech guaranteed under Article 19(1)(a), the freedom of the belief or faith in any religion is a matter of conscience falling within the zone of purely private thought process and is an aspect of liberty."
Justice Chandrachud thus stressed on the importance of the protection of privacy to ensure protection of liberty and dignity in exercising one’s freedom of religion.
Therefore, the judgment in Stanislaus is a constitutional anachronism which requires a review by the Supreme Court itself, possibly a larger bench.
Rampant Conversion? No Data to Back Such Claims
The Supreme Court should do well to bear in mind that there is no empirical data on the growth of any religion at the expense of another. The religion wise distribution of population shortly after independence has not seen much change.
In the 1951 census, Hindus comprised some 35 crores (84.1%), Muslims 3.54 crores (9.8%), Christians 83 lakhs (2.3%), and Sikhs 68.6 lakh (1.89%). This is in comparison to the most recent, though now dated, 2011 census where Hindus made up 96.63 crores (79.8%), Muslims 17.22 crores (14.2%), Christians 2.78 crores (2.3%), and Sikhs 2.08 crores (1.7%).
The differential rates of growth between Hindu and Muslim populations cannot be attributed to conversions but are more likely to be the product of other factors such as economic growth, with poorer sections being more fecund.
What Then is the Purpose of Anti-Conversion Laws?
A choice of which religious observance to follow or tradition to adhere to is a matter of individual choice which should not affect the larger community in which the larger community has no business whatsoever. At the height of President Trump’s Muslim ban, Former U.S. Secretary of State Madeleine Albright wrote “I was raised Catholic, became Episcopalian and found out later my family was Jewish. I stand ready to register as Muslim in solidarity.”
A person may have various beliefs incapable of being encapsulated in one identity. It is quite possible that a person may at times follow a particular God, turn agnostic, lapse into atheism and yet come to acknowledge spiritualism in some other tradition.
The freedom of religion laws serve no purpose beyond allowing vigilantes to interfere in the free exercise of religious choice.
The Himachal Pradesh High Court under Justice Deepak Gupta in Evangelical Fellowship of India v. State (2012) struck down Section 4 of the HP Freedom of Religion Act in 2012 along with corresponding Rules 3 and 5 of the HP Freedom of Religion Rules, 2007 which had provided for compulsory notice to the District Magistrate thirty days prior to the intended date of conversion, failing which a fine would be imposed. The court held that, for the most part, it was the poor and downtrodden who were converted by “force, fraud or inducement.”
Another aspect was that of jurisdiction, the court pertinently asked, "What if the act of conversion is legal in Delhi?” Despite the judgment, the BJP government in Himachal Pradesh reincarnated the same laws by means of the HP Freedom of Religion Act, 2019 recently amended in 2022 with harsher punitive action. For instance, the Amendment Act of 2022 increased the maximum punishment from seven, which the Act of 2019 prescribed, to ten years imprisonment along with liability of a fine.
In a multicultural country where the majority tradition is polytheistic, a person can shift from worshipping Shiva to worshipping Vishnu, without any legal bar. However, the same person cannot shift to worshipping Allah, God almighty, Yawaheh or even the Flying Spaghetti Monster of the Pastafarains, without advance intimation to the district authorities under the Freedom of Religion laws.
Should the citizen’s religious beliefs matter at all to the state? Should citizens be necessarily bound to the faith of their parents and have to run the gamut of state obstruction and vigilante violence, in order to follow their conscience?
The maker of the Indian Constitution, Dr BR Ambedkar famously declared in Yeola in 1935 -"Though I was born a Hindu because I had no control over this, I solemnly assure you that I shall not die a Hindu.” He followed up in 1956 by converting to Buddhism shortly before his death.
Can inheritors of his constitution, become children of a lesser God, allowed to worship only those Gods, officially sanctioned by Government officer? As the great Sufi Poet Bulley Shah wrote, "O people, what business is it of yours? I know and my creator knows."
“Arrey logon tumhara kya, main jaanu mera khuda jaaney.”
(Sanjay Hegde is a senior advocate at the Supreme Court of India. This is an opinion piece and the views expressed are the author’s own. The Quint neither endorses nor is responsible for them.)
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