Sakshi Online Book: Constitutional Validity of Anti-Conversion Laws

Superme CourtSeven States of India have already passed anti-conversion laws against conversions from ‘indigenous faith’ to other religions (primarily Christianity) and not vice-versa under the misnomer ‘Religious Freedom Act’. Two of the Supreme Court verdicts deny the right to conversion as a fundamental right. G Bibu, respectfully disagrees with the Supreme Court verdicts in his L.L.M thesis. He also argues that anti-conversion laws in the State legislatures are not just unconstitutional but anti-constitutional. Review and Excerpts of the Sakshi: An Apologetics Network in India Online Book


I see great dangers for them (Indian Christians) ahead. They have to reckon with the scarcely veiled hostility of Mr. Gandhi to Christianity taking its roots in the Indian Social structure. But they have also to reckon with militant Hinduism masquerading as Indian Nationalism wrote Dr. Babasaheb Ambedkar, Chief Architect of the Indian Constitution.   

Time has now come for the Indian Christians to reckon with dangers that Dr. Ambedkar warned. Scarcely veiled hostility of Mr. Gandhi to Christianity taking its roots in the Indian Social structure has taken the shape of ant-conversion legislations and court verdicts. The logic of the proponents of anti-conversion laws namely Dalits and Tribals lack independent judgment is hardly different from the words of Gandhi who said “They (the Harijans) can no more distinguish between the relative merits (words omitted?) than can a cow. Harijans have no mind, no intelligence, no sense of difference between God and no-God.”       [Harijan 1936, pg 130] 

Political parties both BJP and Congress (in Arunachal Pradesh) have passed anti-conversion laws.  How shall we, Indian Christians, now reckon with these laws? Fortunately, we have a constitution, a providential one in fact, which recognizes the freedom to practice, profess and propagate religion as the fundamental.  

G Bibu in his thesis does a masterly exposition of the concept of fundamental right in general and freedom of religion and conscience in particular.   

Meaning of the Fundamental Right 

He writes “What is significant about the fundamental rights is that they are not rights conferred by the state upon its citizens. They are far superior than the legal rights which are conferred upon the citizens by statute. They are the rights based on the inherent instincts; emotions and aptitudes, which are naturally, (or better-still, divinely) conferred upon a man.”  

Does Freedom of Conversion falls Under Article 14, Section 25-28, Part III (Fundamental Rights) of the Indian Constitution  

Bibu then points out that Freedom of conscience and free profession, practice and propagation of religion enshrined the constitution implicitly recognize the freedom of conversion too.  

Bibu writes:  1.      Whether religious conversion forms part of the freedom to “Practice” and “profess one’s choice religion, and

2.      Whether religious conversion forms part of the freedom to “Propagate”, one’s choice religion.  

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The former deals with the religious freedom from a seeker’s vantage-point, while the latter deals with the religious freedom from the preacher’s point of view. It must either be allowed or denied to both, for it is impractical of serving any purpose, if allowed to the one and denied to the other, owing to their interrelationship andinterdependence, for the exercise of the freedom of each other. As the buyers right to buy must correspond with the sellers right to sell, and vise-versa, so that the one cannot practically exercise his right without the corresponding right of the other, so is the case with the preacher and the seeker also. Hence, if the right to conversion isfound to be conferred upon the one, it logically argues for the right of the other also.  

 

To suppose that a person has no liberty to convert from the practice and profession of one religion in place of a religion he has been practicing and professing hitherto, is to imply, that he is bound by the religion once chosen, as against preferring any other religion in its place. This is just another way of saying that a person must follow the religion imparted to him by his parents or guardians, even if at his own age of being able to account for himself, he must not reconsider his religious standing, even if his conscience persuades him against the religion he has been practicing and professing, with sound reasons to decide otherwise. He would be deprived of his right to act in accordance with such a conviction, since the constitution would not allow the possibility of such a reconsideration. In that case, “freedom of conscience and religion” would just be a sham. But fortunately, such is not the case as we have sufficiently proved. It may be contended in favor of the position taken by the Supreme Court, that “Propagation” simply means: “to make known, or publicise”, as being one of the connotations to this expression. However, such an opinion may be rejected for two significant reasons as shown below:  

 

Firstly, for the reason that such an opinion would render the right to “propagate” religion without any distinction from the right to “Profess” religion, because to “profess” also implies an “open affirmation or declaration”, which is synonymous to “Make known or publicise”, — the same meaning sought to be imposed on the term“Propagation”. Since both would be void of any other end, in addition to merely a declaration of what one believes, the mention of the expression “Propagate” in article 25 of our constitution would be a superfluous proposition, in as much as the right to a mere declaration of what one believes, has already been granted in that article with in the scope of the expression “Profess”. Hence the expression “Propagate” should have some signification as may differ from a mere making known, or publicising, since the expression “Profess” would take care of these aspects. To read synonymity in to the constitutional propositions is to implicate superfluity in their adoption in to the constitution.  

 

Secondly, it would be necessary to observe, that the expression “Propagate may also mean to “Publicise and to make known”, but it is wrong to suggest that the expression does not go beyond that connotation. To propagate also means to “reproduce” or “to cause to reproduce”, something of the same kind, and when applied in the context of faith, it can mean the reproducing of like-believers. It is certainly not to be understood of a biological reproduction, for such an idea is out of place to the present context, but it is rather by the means of conversion that like-believers are reproduced, and this gives a real meaning, and a distinct purpose to be served by the expression “Propagate”.

 

The only reason advanced by the Supreme Court in rejection of such a possible construction of the expression “propagate”, has already been examined in this treatise, and has been shown to be too inadequate, to support such a rejection.  

While presenting a cogent case for the freedom to convert as a fundamental right, Bibu also looks at the reasonable limitations that this freedom has.

Bibu notes:  The four limitations or reasonable restrictions may be enumerated as follows: 

1.      A person must exercise and enjoy his religious freedom, whether it be conversion or ought else, in a manner as may not disrupt the “Public Order.

2.      A person must exercise and enjoy his religious freedom, whether it be conversion or ought else, in a manner as may not conflict with the established standards of “Morality”.

3.      A person must exercise and enjoy his religious freedom, whether it be conversion or ought else, in a manner as may not jeopardize the “Health”, whether his own or that of others.

4.      A person must exercise and enjoy his religious freedom, whether it be conversion or ought else, in a manner as may fully be in subjection and conformity to the “Other Provisions of This Part”, (Implying Part III of the Constitution).  Bibu then argues that none of the anti-conversion laws can demonstrably be justified under any of these limitations though its proponents have always argued so. For example, Bibu takes the argument from Public Order and cites why it could not be reasonably used for any of the anti-conversion laws         

It is undeniable that there have been conflicts between various communities in the name of conversions, as stated in the objects quoted above from the anti-conversion laws prevailing in different states. However, the illegality in such conversions as being effected by force, fraud, inducements, etc, has been alleged to be the cause for such frictions. There may indeed be groups and individuals of certain religions who actually adopt illegal methods to convert others in to their fold. However, this is not always the case. Even those who have at many instances been falsely incriminated as being guilty of resorting to illegal methods to convert others have seldom been found guilty on investigation under the due process of law, which clearly demonstrates the fact, that the legality or the illegality in conversion is not the real cause behind the disrupted law and order situations. For instance, although the anti-conversion laws have been in force in Orissa, Madhya Pradesh and Chhattisgarh nearly for the past 40 years, not even a single person has been found guilty of forced conversion. This is despite the fact that communal forces lodge police complaints against persons involved in conversion activities on a regular basis in some of these states to harass them. This proves that the conversions have generally been legal, despite which there have been law and order problems. If so, what the law must seek to curb is not merely illegal activities of conversion, but conversion itself, irrespective of whether it be legal or illegal.  

However, before the state attempts to make such a move in curbing conversion itself, it is necessary to substantiate whether conversion is indeed the true cause behind the law and order problems occasioned on account of the friction between various communities. None of the states have attempted to substantiate this aspect. In fact, we would even insist to the extent that it would be futile on their part, to make any such attempt to substantiate it, since there is no data available to do so, and also since there is muchinformation available to the contrary. 

Although several examples can be adduced in support of what we have stated above, we will at this stage confine ourselves to the following two instances, contained in a quotation from an article dealing with the Anti-conversion laws, by Arpita Anant, a Research Scholar from the Jawaharlal Nehru University, New Delhi. 

 

“In the case of the much agonised over Meenakshipuram conversion (1981), the Home Ministry presented evidence of the extent of foreign support to these conversions. However there were several reports including one by the Regional Director of the SC/ST Federation that this conversion was a protest against the humiliation of untouchability suffered by the community. In Madhya Pradesh, one of the States in which the anti-conversion had been enacted decades ago, two priests and a nun were sentenced to imprisonment on the charge of forcible conversion by a Raigarh court. This despite a written communication sent to the District Magistrate, the SDM and the SO (Police) claiming they had changed their religion voluntarily and without any allurement (TOI, August 22, 2002).”  

Bibu then notes that:    

 

As rightly observed by the Maharashtra Government official report of investigations into the grievances of the untouchables: “The Depressed classes from a small minority in every village opposed to which is a great majority of the orthodox who are bent on protecting their interests and dignity from any supposed invasion by the depressed classes at any cost.”  

Hence, the prevailing scenario of religious bigotry; social conservatism; and the vested economic interests, have become the most significant tools in the hands of politics in combating conversions, which is a threat to their vote-bank, as controlled by these bigots; elites; and vested interests, who have usurped to themselves, a position of representing the “rural voice”, themselves having influenced; shaped; and molded such a “rural Voice”. 

Similarly Bibu presents his case on why none of the limitations were applicable in any of the States that had anti-conversion laws.  

Further Bibu also argues his case about why he disagrees with the verdicts of the honorable Supreme Court. He also cites the historical precedence of later overruling of an earlier verdict and hopes that similarly the honorable Supreme Court of our nation may overrule the current verdicts. 

Bibu then takes the anti-conversion laws itself and argues that those in laws in fact violate the fundamental rights recognized in the Part 111 of Indian constitution.   

He writes: Firstly, there is no intelligible differentia that can be shown between the men belonging to “Indigenous faiths” and “others”. There is only a doctrinal differentia, but such a difference cannot be accounted for a reasonable classification, because the doctrinal differentia would merely make a difference in the faith, but does not of itself render men with such difference inequal in the natural, psychological, social, or economic spheres. The permissible discrimination is in respect of those who need statutory protection, which others do not need, owing to their inequal positions, but a mere doctrinal difference does not call for any such protective discrimination. Hence the discrimination made in these enactments either expressly or by implication, in the enactments in question, as shown above is violative of Article 14, failing the very first test of reasonable classification.  

Bibu also points out that those anti-conversion laws are not only against the equality but also against the very secular fabric of the nation.  

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Firstly, it must be recognized that the Anti-conversion law as it was enacted in some of the states of our country earlier on, were perfectly molded along the Hindutva sentiments, in seeking to curb conversions only from an indigenous form of faith. Take for instance the Arunachal Pradesh Freedom of Religion Act, 1978 Act 4 of 1978, which is so blatant as to this aspect. If conversion is the real troublemaker, then why not curb conversion itself, rather than specifically attack conversion from an indigenous form of faith only. This exclusive of other factors argue substantially, that the trouble-maker is not conversion, but the conservatism that prevails in the indigenousforms of faith.  

Secondly, the very fact that a double punishment has been contemplated in these acts, against those converting the SCs and STs, prove our point, that the SCs and STs are the vote-banks of which the elite classes are the custodians. The law presumes their vulnerability to convert more readily, owing to their oppression from the community to which they belong, and hence seeks to prevent a Hindutva bankruptcy, by their defection in to a foreign faith. This aspect has been smartly incorporated, as the SCs and the STs were listed among the women and the minors, also in respect of whom, the punishment is doubled, as if to imply that the former is as weak and vulnerable as the latter, hence needing the statutory protection against convertors. However, such a jugglery is void of any constitutional justification. 

For the law-abiding Citizens of India especially the Indian Christians Bibu’s legal exposition of the Indian Constitution is an epicurean delight which reinforces our faith in the constitution of this land.

 

This book is a must read for every peace loving and civilized Indian citizen who recognizes the fundamental rights enshrined in the constitution. Especially, Indian Christians must take time to go thorough the arguments presented by Bibu and present it in the various forums to create an awareness in the Indian social structure. With this intend, Sakshi: An Apologetics Network in India gives it free. Free because it is of high value to the Indian Citizens and a great asset to the Indian Christians. 

 

Download the book here.

 

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9 Responses

  1. i am really happy the way people of sakshi working together. may God bless you people immensly. bringing out many great truths about christianity.especially people like brother jerry i mean every one they are gems for the lord. pl continue the good work.

  2. Hi Bibu,

    It was an insightful article and must say advocates for freedom of religion to be practiced in true spirit. But on the other side we have conversions happening luring the people with money, reservations and other carrots.

    The anti conversion laws were made by the government to keep this in check(Please correct me if i am wrong here).

    I also want your take on these kind of conversions and what penalties should be imposed on the practitioners. And also should we have laws in place singling out these kind of cases.

  3. I am shocked to read that Gandhiji should have spoken such words about Harijans likening them to a cow. My God If these words are true ( I shall refer to Gandhi’s books) then it ought to be condemned. It is utterly racist and Darwinian. God created all men high and low in His own image. Any likening of a man or a group of men to animals should be condemned in the most severe terms.

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