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Syllabus
- GS-2: Government policies and interventions for development in various sectors and issues arising out of their design and implementation.
- GS-2: Statutory, regulatory and various quasi-judicial bodies.
- GS-2: Fundamental Rights
Context: The Supreme Court’s recent remarks on religious conversions cast a spotlight on the long-standing debate about what the fundamental right to “propagate” one’s religious faith entails.
- SC Bench led by Justice M.R. Shah said acts of charity or good work to help a community or the poor should not cloak an intention to religiously convert them as payback.
- SC had remarked that religious conversions by means of force, allurement or fraud may “ultimately affect the security of the nation and freedom of religion and conscience of citizens”.
How did the Constituent Assembly and courts interpret the Freedom of Religion?
- Article 25(1) of the Constitution says “all persons” are equally entitled to the freedom of conscience and the right to profess, practise and propagate religion freely. However, it is subject to public order, morality and health.
- The debate on religious freedom goes back to the Constituent Assembly when the framers of our constitution debated the inclusion of the “right to propagate” as a fundamental right.
- Some members wanted to replace the word “propagate” with “practise privately”, fearing that the right would create room for forceful conversions.
- Lokanath Misra, a member from Odisha, cautioned the Assembly that “the cry of religion is a dangerous cry.”
- He suggested that while everybody should have the right to profess and practise their religion as they saw best but they should not be “swell “their number to demand the spoils of political warfare.
- Pandit Lakshmi Kanta Maitra disagreed, saying that “propagation does not necessarily mean seeking converts by force of arms…”. He argued the fundamental right to propagate would probably work to remove the “misconceptions” in the minds of the people about other co-existing religions in this land of different faiths.
How has Judiciary reacted to the question of conversion & religious freedom?
- The right to propagate was ultimately kept in the Constitution but States and civil society have knocked on the doors of the judiciary time and again to interpret this freedom.
- In 1950, the top court held in Arun Ghosh vs. State of West Bengal that attempts to raise communal passions through forcible conversions would be considered a breach of public order, affecting the community at large.
- It held that it was within the power of States under Entry 1 of the State List of the Seventh Schedule of the Constitution to enact local Freedom of Religion laws.
- The Supreme Court verdict in Stainislaus vs. State of Madhya Pradesh in the 1960s is frequently cited in matters involving religious freedom.
- Then Chief Justice of India A.N. Ray, heading a five-judge Bench,dissected Article 25 to hold that “the Article does not grant the right to convert other persons to one’s own religion but to transmit or spread one’s religion by an exposition of its tenets.”
- 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 but to transmit or spread one’s religion by an exposition of its tenets to one’s own religion.
- As a result, the court upheld the validity of two regional anti-conversion laws of the 1960s — the Madhya Pradesh Dharma Swatantraya Adhiniyam (1968) and the Orissa Freedom of Religion Act (1967).
- However, some verdicts have also interpreted Article 25 differently. The Court had said that every person was the final judge of their own choice of religion, and invoked the Puttaswamy judgement (2018) to hold that religious faith was a part of the fundamental right to privacy.
Do States already have special laws on conversions?
- Before independence, princely States had Acts such as the Raigarh State Conversion Act of 1936, the Patna Freedom of Religion Act of 1942, the Sarguja State Apostasy Act of 1945 and the Udaipur State Anti-Conversion Act of 1946, mainly against conversion to Christianity.
- While Acts of the erstwhile Princely States were allowed to lapse with the adoption of the Constitution, States with sizeable tribal populations like Odisha and Madhya Pradesh remained suspicious of the activities of Christian missionaries.
- In post-independence India, Odisha became the first State to enact a law restricting religious conversions, which later became a model framework for other States.
- Odisha’s 1967 Act provides that no person shall directly or indirectly convert any person from one religious faith to another by force, inducement or any fraudulent means.
- Madhya Pradesh brought in the Madhya Pradesh Dharma Swatantraya Adhiniyam (1968). This Act added a provision distinct from the Odisha law, requiring whoever converted any person, either as a religious priest or by taking part in a conversion-related ceremony to intimate the District Magistrate that such a conversion had taken place. Failure to do so would attract punishment and fines.
- Subsequent Acts in other States over the past two decades see identical provisions. These laws also provide for greater punishment for forceful conversion of persons from Scheduled Castes or Scheduled Tribe communities, minors and women.
- Such provisions were passed allegedly in the best interest of these groups in a sense painting them as “naive” and prone to be misled.
- More than ten Indian States have enacted laws prohibiting certain means of religious conversions. Under these laws, penalties for violations range from one to ten years of imprisonment and fines up to ₹50,000.
- Since 2017, multiple BJP-ruled States enacted or revised their anti-conversion laws, restricting religious conversions on the additional ground of marriage, supposedly to curb what has been described as “love jihad”.
- For instance, the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021, says that a marriage would be declared “null and void” if the conversion is solely for that purpose, and those wishing to change their religion after marriage need to apply to the District Magistrate.
- People are also not permitted to abet, convince or conspire such conversion. The Act provides for imprisonment up to 10 years and a maximum fine of ₹50,000 for violators.
Have these laws been challenged?
- The Himachal Pradesh High Court in 2012 struck down certain provisions of the State’s 2006 law restricting conversions, holding them “unconstitutional”.
- The Court said that the individual converting their faith also enjoyed their right to privacy and the provision to give a month’s prior notice to the district magistrate violated this right.
- In 2021, the Gujarat High Court stayed some provisions of the Gujarat Freedom Of Religion Act, 2003, which the State amended in 2021 to add the grounds of marriage to prohibit conversions
- The Court also said that prima facie, the Act gave the common man the impression that an inter-faith marriage followed by conversion would amount to an offence.
- In November last year, the Allahabad High Court allowed several interfaith couples to register their marriages despite not having sought the DM’s approval
What is the Centre’s stand?
- In an affidavit filed in the Supreme Court, the Union Ministry of Home Affairs said that the right to religion did not include the right to convert other people to a particular religion, especially through fraud, deception, coercion, allurement and other means.
- The MHA reiterated the interpretation of Article 25 given by the Supreme Court in the Stainislaus judgement of 1977. “Fraudulent or induced conversion impinged upon the right to freedom of conscience of an individual apart from hampering public order and, therefore, the state is well within its power to regulate/restrict it,” the affidavit reads.
- It has, however, not clarified if it will come up with a special law on religious conversions, as sought by certain sections of society.
Main Practice Question: What do you think are the new challenges to restrictions imposed by State on freedom of religion? Do you foresee some sort of an amicable solution to this debate?
Note: Write answer his question in the comment section.
