http://www.hinduonnet.com/thehindu/op/stories/2003070800080200.htm Religious freedom — legal restrictions on conversions
When the highest court of this country has upheld the constitutionality of laws prohibiting fraudulent conversions, any criticism that these laws are aimed at depriving the rights of minority religions is absolutely baseless.
THERE IS no universally acceptable definition as to what exactly "religion" is. There appears to be near unanimity that religion, generally, is a belief or faith in the existence of a Supernatural Being and the precepts which people follow for attaining salvation.
Freedom of religion is a recognised basic right in all democratic countries founded upon the rule of law. The extent of the freedom varies from country to country. In a theocratic state, religion and law slide into each other and the freedom given to persons belonging to faiths other than the officially recognised state religion is always minimal. The freedom of religion is a universally accepted concept; it finds _expression in the Universal Declaration of Human Rights, the two International Covenants and certain declarations by the United Nations General Assembly.
The Constitution of every democratic country incorporates provisions guaranteeing religious freedom to its citizens. In the United States, there is complete separation of religion from the state and this was brought about by the First Amendment to the American Constitution in 1791. This religious freedom in the United States has assumed, by judicial interpretation, strange and shocking manifestations — refusal to salute the National Flag was held to be a religious freedom, which could not be touched by any legislation.
Fortunately, our Supreme Court, even in 1954, in what is popularly called Sirur Math's case, has rejected the American approach.
Freedom of religion including the freedom to profess, practise and propagate religion, the Founding Fathers of our Constitution felt, should be assigned high priority and consequently, the same forms part of the Fundamental Rights incorporated in Articles 25 to 28 subject to certain limitations like public order, morality and health. Our concept of religious freedom is largely based upon Article 44(2) of the Irish Constitution.
Freedom of religion implies freedom to change religion also. People convert from one religion to another due to myriad reasons. If conversion is a voluntary act responding to one's conscience, it cannot be faulted on grounds of either law or morality.
Gandhiji's view
Gandhiji viewed conversion as a personal matter and detested conversions brought about by promises of material gains. Bapuji's reaction when his son Harilal was converted to Islam because of monetary inducements is well known. Gandhiji declared: "Conversion without a clean heart is a denial of God and religion."
In the Constituent Assembly, when the clause pertaining to freedom of religion came up for discussion, divergent views were expressed, not surprisingly, by members belonging to different religions. Right to propagate religion, according to K. M. Munshi, is part of the right of freedom of speech. One Christian member, Rev. J.J.M. Nicholas Roy, pleaded that even minors should be permitted to change their religion, which was not agreed to by the others. Muslim members advocated for constitutional prohibition of conversions. There was near unanimity on the question that right of conversion is part of religious freedom. Sardar Vallabbhai Patel moved the following clause as settled by the Advisory Committee for approval by the Constituent Assembly:
"Conversion from one religion to another religion brought about by coercion or undue influence shall not be recognised by law."
To this, an amendment was moved by Munshi: "Any conversion from one religion to another of any person brought about by fraud, coercion or undue influence or of a minor under the age of 18 years shall not be recognised by law." (See: Constituent Assembly Debates. Vol. III p.488).
The matter was referred back to the Advisory Committee as serious doubts were expressed by the members as to whether legal restrictions on fraudulent conversions should be accorded high importance deserving inclusion in the Constitution.
Ultimately, the clause concerning conversions was dropped on the ground that matters concerning conversion brought about by undue influence or coercion are fit for ordinary legislation but not worthy of incorporation as Fundamental Rights. The Advisory Committee in its report submitted to the Constituent Assembly on August 25, 1947 expressed the view:
"It seems to us on further consideration that this clause enunciates a rather obvious doctrine which it is unnecessary to include in the Constitution and we recommend that it is dropped altogether."
Emphatically expressing the view that "there is no difference of opinion on the merits of the case that forcible conversions should not be or cannot be recognised by law," Sardar Vallabbhai Patel advocated against incorporation of the provision in the Constitution since "these are all matters for ordinary legislation and not worthy of incorporation as Fundamental Rights... We cannot have a fundamental right for every conceivable thing. We are not legislating."
In spite of this historical fact as to why the Founding Fathers have not incorporated a provision in the Constitution concerning conversions, controversies erupted whenever a law was made by a State legislature prohibiting conversions brought about by force, fraud, undue influence or allurement.
In 1967-68, Madhya Pradesh and Orissa enacted laws prohibiting conversions brought about by force, allurement or by any fraudulent means. The Orissa Act was struck down by the High Court of Orissa on the ground that the definition of `force,' `fraud' and `inducement' are violative of the right of Christians to propagate their religion. The Orissa High Court also expressed the view that the power to legislate with regard to matters concerning religion exclusively vests in Parliament under entry 91 of List I of the VII Schedule and, therefore, no State legislature could enact a law on the topic of `religion.' On the other hand, the Madhya Pradesh High Court upheld the M.P. Act holding that it guarantees religious freedom to everybody and that there is no encroachment upon the freedom of any particular religion or individual. The State legislature had full power to legislate since the matter concerns public order, not religion.
Against both the judgments, appeals were preferred to the Supreme Court. Chief Justice Ray, who spoke for the Constitution Bench, upheld the validity of both the M.P. and Orissa Acts holding that the right to convert another is not part of freedom of conscience guaranteed by Article 25(1) of the Constitution and that forcible conversions result in the disturbance of public order.
The recently enacted Tamil Nadu Prohibition of Forcible Conversion of Religion Act 2002 is similar in all respects to the M.P. and Orissa Acts.
Criticism about the need for such laws is plainly unsound. The provisions contained in the Indian Penal Code do not provide for any remedies for such contingencies envisaged by the anti-conversion laws.
Social inequalities
Change of religious faith takes place on account of several factors — two prominent factors so far as Hinduism is concerned are social inequalities and the prevalence of untouchability. People subjected to inhuman treatment and ignominy because of birth in a particular community, oftentimes, justify their conversion into another religion, which promises or ensures a dignified way of living for them. The absence of specific provisions in the Constitution cannot be taken aid of to contend that the Constitution, in effect, permits conversions brought about by any means. There cannot be any dispute that every citizen of India is free to change his/her religion, provided the change is a voluntary act responding to the call of one's conscience.
When the highest court of this country has upheld the constitutionality of laws prohibiting fraudulent conversions, any criticism that these laws are aimed at depriving the rights of minority religions is absolutely baseless. Attacking the Union Government or the State Governments on the ground that they are failing to uphold the Constitution by allowing the above laws to come into existence, is clearly motivated and aimed at gaining cheap publicity in international fora. What is surprising is that no responsible functionary from the government or major political parties so far has presented a correct picture as to the entire controversy. The United Nations Sub-Commission on Human Rights must be apprised of the legal position obtaining in this country before further damage is done by ill-informed critics.
M.N. RAO
Former Chief Justice,
High Court of Himachal Pradesh
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