The draft of Article 25 was the subject matter of considerable discussion in the Constituent Assembly. The main objection was to the inclusion of the word "propagate" and several members wanted this word to be dropped. However, after a detailed discussion, it was decided to retain this word.

K.M. Munshi observed that every religion had full liberty to propagate its faith. The freedom of speech in the Constitution also guaranteed every religious community the right to persuade other people to join their faith. "As long as religion is religion, service by free exercise of the conscience has to be recognised." He observed that the fears of several members of the Assembly that the scope of the word "propagate" was fraught with dangerous consequences was unfounded.

The Tamil Nadu Ordinance prohibits conversion on three grounds: by force, fraudulent means and by "allurement". The last word has been further defined to mean temptation in the form of gifts or gratification in cash or kind or the grant of any material benefit either monetarily or otherwise. Any conversion in the State must now be intimated to the District Magistrate in a form which is to be prescribed. The Tamil Nadu Ordinance is not the first on the subject. The Orissa Freedom of Religion Act, 1967, and the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968, were similar enactments and were challenged before the Madhya Pradesh and Orissa High Courts. The former upheld the validity while the latter held the Act to be unconstitutional. In these two Acts, conversion by force, fraud or by inducement was prohibited and made punishable. The conclusion of the Orissa High Court is interesting and can be summarised briefly:

(a) The right to propagate religion includes conversion which is a part of the Christian religion.

(b) Prohibition of conversion by force or fraud as defined by the Act was valid. (The Christian missionaries who were the petitioners before the Orissa High Court stated that conversion by force or fraud was not permissible under their religion).

(c) Prohibition of conversion by "inducement" was invalid as the term was vague; many proselytising activities would come within inducement.

The Madhya Pradesh High Court held that prohibition of conversion on the grounds of force, fraud and inducement actually established the equality of religious freedom for all citizens by prohibiting conversion through objectionable means.

The matter was taken up in appeal to the Supreme Court in the Stanislaus case. The court held that the word "propagate", in the context of religion would mean to transmit, carry forward, diffuse or extend a particular religious belief or practice. The fundamental right of a person to transmit or spread his religion by explaining its tenets cannot be questioned. But there is no fundamental right to convert another person to one's own religion. The Supreme Court pointed out that the freedom of religion is not absolute but subject to public order and the two State Acts were constitutionally valid.

The founding fathers of the Constitution were very clear that any conversion has to be voluntary and cannot be through coercion or other unlawful means. The whole difficulty has arisen because the right of propagation is treated as synonymous with the right to uncontrolled conversion.

The first amendment to the U.S. Constitution prohibits Congress from making any law respecting and establishing of religion, or prohibiting the free exercise thereof. The U.S. Supreme Court has zealously guarded against any attempt of any kind of compulsion in religious matters. The U.S. Supreme Court has pointed out that the free exercise clause on religion is a mandate of religious voluntarism. James Madison observed that religion or the duty that we owe to our creator and the manner of its discharge can be directed only by reason and conviction, not by force or violence. The judgments of the U.S. Supreme Court and Federal Courts have consistently made a distinction between religion beliefs and opinion and religious conduct and practice. In Reynolds v U.S., 98 U.S. 145 (1878), it was held that laws could not interfere with mere religious beliefs and opinion but they could with regard to religious practice.

Although the Tamil Nadu Ordinance is legal, two aspects are disturbing. First, an Ordinance is usually issued when there is an extraordinary urgency and one cannot wait for the next legislative session. When the Tamil Nadu Assembly was to meet in the latter half of October, there is no explanation for the need to issue the Ordinance on October 5. Second, the Explanatory Statement to the Ordinance refers to attempts of religious fundamentalists and subversive forces to create communal tension under the garb of religious conversion. The Explanatory Statement does not provide any factual details as to the extent of conversion and whether there have been any incidents of force or fraudulent conversion in the recent past that have necessitated this Ordinance.

In the present controversy, no religious or political leader has been able to point out any specific provision that offends the fundamental right to practise, profess and propagate religion. There is also no evidence that similar enactments in Madhya Pradesh and Orissa have been misused. It is indeed unfortunate that religion is increasingly becoming a divisive force. Individual religious groups have their personal agenda and common values of truth and compassion are completely ignored.

(The writer is a senior advocate of the Madras High Court.)