President Pratibha Patil must turn down Central and State Acts which erode Freedom of Faith
[John Dayal’s Note 30 July 2007-- President Pratibha Patil has, of course, to take a decision on 50 Mercy Petitions before her. Her Presidential powers, and legal expertise --I think she is the first President, after President Shankar Dayal Sharma, to have studied Law, and the first to have practiced as a Lawyer in her early professional years -- will also be called upon to bear on matters concerning the Religious Minorities in India.
These are Bills conceived in political sin, mired in deep controversy, denounced by Human Rights activists and Civil Society in general, but relentlessly pursued by the Sangh Parivar and by those within the Indian National Congress Party and other political groups who seem to espouse the same ideology when they interact with Christians and Muslims.
From the Central government may eventually come a law defining the term religious minorities on the basis of the population of various groups in the States. There are many who favour this addition to laws, saying it will only bring on the Statute books what the Supreme Court has ruled in the past. The opposition to the idea is equally strong. Civil Society and religious groups point out such a law will make a mockery of Constitutional rights given to religious minorities who now are members of the nationally recognised Parsee, Sikh, Buddhist, Christian and Muslim faiths. Christians may find themselves a majority in Nagaland, Mizoram, Meghalaya and Kerala, perhaps even in Goa, and lose the protection of the law over their institutions. Their students will no longer be eligible for admission in premier national institutions such as St John’s Medical College, Loyola, St Xavier’s, Jesus and Mary, and St Stephen’s.
The other major bundle of controversy pertains to the so called Freedom of Religion Bills from Rajasthan and Madhya Pradesh. In Madhya Pradesh, the Governor has sought the opinion of the Union government’s law officers. The Solicitor General of India in his letter to the Governor trashed the entire proposal as ultra vires of the Constitution in its detail and intent.
The most piquant is the situation with the similar Bill in Rajasthan. Mrs Patil, in her earlier incarnation as Governor of Rajasthan, had thrown back the Bill sent to her by the Rajasthan assembly. The Bill had been rushed through the Legislative Assembly without much of a debate. Civil society had risen against it in unison. It was my privilege, and that of many other activists, to send to Mrs Patil a detailed critique of the Bill by the eminent Constitutional expert, Dr Rajeev Dhawan, who practices before the Supreme Court of India. Dr Dhawan’s categorical view was that such a Bill would not stand constitutional scrutiny. She correctly refused to sing it. Inevitably, a decision will again have to be taken on the Bill sooner than later.
I on behalf of the All India Catholic Union, All India Christian Council and the United Christian Action, will be formally appealing to the new President of India to ensure that the rights of religious minorities are not eroded by any legislative or executive measure by the Central and State government.}
This note contains the following:
Letter of Solicitor General of India to the Governor of Madhya Pradesh saying Madhya Pradesh add-ons to Anti Conversion laws unconstitutional;
Text of amendments made to the original Freedom of Religion law in Madhya Pradesh
Text of the Rajasthan Freedom of Religion Act
Critique of the Rajasthan Bill by Dr Rajeev Dhawan
Analysis of similar laws in several India states by South Asia Human Rights
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[1]
Letter of Solicitor General of India G E Vahanvati to Madhya Pradesh Governor Balram Jhakkar:
Supreme Court of India New Delhi, Dy. No. 1166/07 dated 3/5/07 Deptt. of Legal Affairs
1. I have gone through the letter of His Excellency, the Governor dated 16 April 2007. Before dealing with questions which have been raised, it is necessary to note the relevant provisions.
2. Section 5 of the M.P. Dharma Swatamtraya Adhiniyam 1968 before its amendment read as follows:
“5. Information to be given to District Magistrate with respect to conversion:- (1) Whoever converts any person from one religion faith to another either by performing himself the ceremony necessary for such conversion as a religious priest or by taking’ part directly or indirectly in such ceremony as may be prescribed, send an intimation to the District Magistrate of the district in which the ceremony has taken place of the fact of such conversion in such form as may be prescribed.
(2) If any person fails with sufficient cause to comply with the provision contained in sub-section (1), he shall be punishable with imprisonment which may extend to one year or with fine which may extend to one thousand rupees or with both,”
3. By virtue of the proposed amendment to Section 5, the original section 5 is proposed to be substituted by a new Section 5 which reads as follows:
“5(1) Any person intending to convert his religion, shall give a declaration before the District Magistrate or before ,an Executive Magistrate specially authorized by the District Magistrate of the concerned District, prior to such conversion to the effect that he intends to convert his religion on his own will.
(2) The concerned religious priest, who intends to convert any person from one religious faith to another, either by performing himself the ceremony necessary for such conversion or by taking part directly or indirectly in such ceremony, shall intimate the date, time and place of the ceremony in which conversion shall be made along with the name and address of the person to be converted, to the concerned District Magistrate one month prior to the date of said ceremony, and the intimation shall be in such form and shall be delivered or caused to be delivered by the priest to the concerned District Magistrate in such manner as may be prescribed.
(3) On receiving the intimation under sub-section (1) and,(2) the District Magistrate shall inform the details of proposed conversion to the concerned Superintendent of Police, who shall ascertain through the office-in-charge of the concerned police station regarding the objection, in any, to the proposed conversion by local inquiry and intimate the same to the District Magistrate.
(4) Whoever fails to comply with the provision contained in sub-section (1), shall be punishable with fine which may extend to one thousand rupees.
(5) Whoever fails to comply with the provision of sub-section (2), shall be punishable with imprisonment which may extend to one year or with fine which may extend to five thousand rupees or both.”
4. The following changes may be highlighted:
(A) Under the existing provisions the obligation to furnish an intimation is cast on the person performing the conversion ceremony. Now, it would be on both- the person who wants to convert and the person performing the ceremony.
(B) Sub section (2) casts an obligation on the person performing the ceremony to defer it by a month since prior intimation of one month is required to be given. This is not there in the existing provisions.
(C) Under Sub section (3), the District Magistrate has to inform the details of the proposed conversion to the SP who is required to ascertain, through the officer-in-charge of the concerned police station “ regarding the objections, if any, to the proposed conversion.”
(D) No provision is made for the consequences of an adverse report.
5. Sub section 3 creates a serious problem. On receiving the intimation under sub-section(1)&(2), the District Magistrate is required to inform the details of the proposed conversion to the concerned Superintendent of Police, who is to ascertain through the officer-in-charge of the concerned police station regarding objections, if any to the proposed conversion by local enquiry. Sub section 3 is not happily worded at all. The enquiry is supposed to be with regard to objections if any to the proposed conversion, but it is not even required to enquire whether the conversion is forcible or not. If somebody merely objects to the proposed conversion, does that make it forcible?
6. The second problem is that if anybody objects to the conversion, it could result in an adverse report. A mere objection leads to an adverse report irrespective of whether it is forcible or mot. A conversion may be purely voluntary but any objection can lead to an adverse report.
7. I do not agree with the view that a Superintendent of Police may report that the conversion is “ forcible or note of its own free will.” This is not what the proposed Sub section 5(3) requires to report. The superintendent of police is required to report any objections to the proposed conversion. Such a provision is not only vague but also unreasonable since it does not focus on the real issue, namely whether the conversion is forcible or not.
8. Looked at from another point of view, the assumption is that if a Superintendent of Police were to give a favourable report, then there is no problem. But if the Superintendent of police records that there are objections then what happens? Do the persons go ahead? The proposed Section 5 does not provide for this contingency at all. If the proposed Section 5 had clearly stated that notwithstanding the adverse report of the Superintendent of police, the conversion can still take place, then the effect of that would be that the person converting could do so and face prosecution under Section 4. The failure to clearly provide for the consequences of any adverse report and the failure to clarify that this would not stand in the way of a conversion would have the inevitable effect of deterring the concerned person from going ahead with the conversion, which will in turn violate article 25 of the Constitution.
9. I also do not agree with the view that the person would have to challenge the report by way of Writ Proceedings under Article 226 or 227 of the Constitution. Does this mean that till the report ( merely based on a solitary objection) is set aside and quashed, the conversion cannot take place? If so, it is unreasonable as this would have nothing to do with “ public order.”
10. In my opinion, lack of clarity and uncertainty in the proposed legislation is bound to lead to confusion which can have the effect of curtailing the right under article 25 in an unreasonable manner.
11. In my opinion, the judgment of the Hon’ble Supreme Court in the said judgment was concerned with the un-amended Act. The Hon’ble Court had upheld the validity of the Act on the ground of public order. In paragraph 23 of the judgment, the Hon’ble Court observed:
“ The Acts therefore clearly provide for the maintenance of public order for it forcible conversion had not been prohibited, that would have created public disorder.”
12. The Hon’ble Court in the Stanislaus case was not concerned with an “ adverse report” and the effects there of on the fundamental right under Article 25. In the instant case, Section 5(3) would act as an unreasonable fetter to the fundamental right under Article 25. The proposed Section 5(3) is open ended. The said sub-section talks of objections if any an adverse report could be made on the basis of objections which are unrelated to prohibition of forced conversion which is the objective of the Act. In my opinion, the said Sub section 3 cannot be said to be a valid restriction on the ground of public order.
In the premises, I will answer the queries as under.
Q. (i) Whether proposed amendment in Section 5(1) to 5(5) of the M.P. Dharm Swatantraya Adhiniyam 1968 are ultra- vires to Article 24(1), 26 and 2(3) of the Constitution of India?
Ans. Yes, for the carious reasons mentioned above, pointing out lack of clarity and patent obscurity in Section 5(2) and 5(3) of the proposed amendment.
Q.(ii) If the person intending to convert his religion declares before the District Magistrate and if the report of Superintendent of Police is negative, then what legal remedy will be available to the person against whom the District Magistrate may take action? The Bill is silent on the aspect.
&
Q.(iii) If the Religious priest intimates about the conversion before one month to the District Magistrate and if the report of Superintendent of Police is negative, then what legal remedy will be available to the person (Priest) against whom the District Magistrate may take action? The Bill is silent on this aspect.
Ans. In my opinion, it is highly unreasonable to expect a person against whom a report is negative to be required to challenge the report. The implication of such an approach is that until the report is set aside by a competent Court, the conversion cannot take place. That by itself amounts to unreasonable restriction under article 25.
Q.(iv) There is an ambiguity in sub section (3) of Section 5 of the Bill. It is not clear as to what order or action will be made or taken by the District Magistrate on receiving an intimation or report from the Superintendent of Police, if a flaw is found in the alleged process of conversion. This also needs to be scrutinized.
Ans. There is clear ambiguity in the proposed sub section 5(3). I have indicated the implications hereinabove. It is unreasonable to bring about a nebulous situation leading to deterring a person from going through and exercising his right to convert on the basis of a negative report based on extraneous factors such as “objections” to the conversion. The failure to provide clearly as to what is to happen in the case of an adverse report renders the proposed clause unreasonable. The wording of Sub section 3 which refers to objections (and not to forcible conversion) is contrary to the spirit of the Act. It would be quite strange that if somebody objects to a conversion then that would be treated as the conversion being forcible.
Goolam E Vahanvati
Solicitor General of India
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Text of Madhya Pradesh Freedom of Religion (Amendment) Act, 2006 Act 15 of 2006
[English translation from Hindi Original by Hyderabad Translation Bureau, Hyderabad, India Courtesy All India Christian Council]
This may be enacted through the Madhya Pradesh Assembly in the fifty-seventh year of the Indian Republic as under:
I. Short title and commencement.
(1) The short title of this Act is “Madhya Pradesh Freedom of Religion (Amendment) Act, 2006”.
(2) This will come into force from the date published in Gazette.
II. Re-enforcement of section 5.
The following section may be enforced in the place of Section 5 of the Madhya Pradesh Freedom of Religion Act, 1968 (No. 27 of 1968). (After this, which will be specified with its original Act.) It means: -
“5. Declaration before conversion of religion and pre-report about purification (sanskar)
(1) One who desires to convert his religion, he will declare such idea in front of District Magistrate or in front of the Executive Magistrate specially authorized by District Magistrate of related District that he wishes to change his religion on his own and at his will and pleasure.
(2) The related religious priest, who directly or indirectly participates in such religious
conversion and performs himself necessary purification (sanskar) desires any person for the conversion of his religion from one to another will give the details of the related religion’s purification ceremony in which such conversion takes place along with the date, time, place and the name and address of the person whose religion is going to be changed. This will be given one month before the date of above conversion and such declaration (affidavit) will be given in the prescribed proforma and it will be given by the priest to the concerned District Magistrate in the prescribed manner. (3) The District Magistrate, after receiving the information under sub-section (1) and (2), will give the details of information pertaining to the proposed religion conversion to the Police
Superintendent, who in turn ensures through local investigation if any objections are there with regard to that proposed religion conversion through Bhaar Sadhak officer of respective police station and he will submit its report to the District Magistrate.
(4) Whoever fails to follow the provisions mentioned in sub-section (1) will be penalized with a fine amounting up to rupees one thousand.
(5) Whoever fails to follow the provisions mentioned in sub-section (2) will be imprisoned which may be up to one year or fine up to rupees five thousand or will punished with both.”
III. Revision of Section 8.
The section 8 of the original Act may be re-serialized in the form of its sub-section (1) and thus after re-serialization of sub-section (1) the following sub-section may be incorporated. It means: -
“(2) All the Rules framed under this Section will be tabled in the State Legislative Assembly.”
STATEMENT OF AIMS AND REASONS
The Madhya Pradesh Freedom of Religion Act, 1968 (No. 27 of 1968) is in vogue since 21st Oct. 1968. It is prohibited to convert anybody forcibly, or by inducement or by using any fraudulent method from one religion to another. Even then, there are no such provisions included in the Act through which some help can be received to find out about the conversion of that religion which come under violation of the Act. In the sub-section (1) of section 5 of the existent Act, there is a provision of submitting a report by the religious priest to the District Magistrate who changes a person from one religion to another after purification ceremony of religion conversion is performed.
The person who gets himself converted from one religion into another one, it is not required to produce prior-report (Declaration) before any authorized official. The main purpose of the Act turns futile because of such deficiencies because there is no device to find out and prevent violation of the Act of any religion conversion. Therefore it is proposed to revise the section 5 of above said Act as proper to make provision related to previous report of proposed conversion of religion.
(2) The provision is also included in order to submit the rules on the table of the State Legislative Assembly after the revision properly in section 8.
(3) Hence the Bill is submitted.
Nagendra Singh
Bhaarsadhak member
Bhopal Date: 17th July 2006
MEMORANDUM PERTAINING TO RE-ENFORCED LAW FRAMING
The empowerment of applying draft and procedure of memorandum pertaining to religion conversion through sub-section (2) of section 5 of part 2 of proposed Bill is re-enforced.
This re-enforcement is of a common nature.
Dr. A.K. Payasi
Chief Secretary
M.P. Legislative Assembly
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OFFICIAL ENGLISH TEXT OF RAJASTHAN BILL NUMBER 12 OF 2006
A Bill for prohibition of conversion from one religion to another by the use of force or allurement or by fraudulent means and for matters incidental thereto:
Be it enacted by the Rajasthan State Legislature in the Fifty-seventh year of the Republic of India as follows:
1. Short Title, extent and commencement:
(1) This Act may be called the Rajasthan Swatantraya Act, 2006
(2) It extends to the whole State of Rajasthan
(3)It shall come into force at once.
2. Definitions – In this Act, unless this otherwise requires,
(a) “unlawful” means which is in contravention of the provisions of this Act
(b) “allurement” means offer of any temptation in the form of –
(i)any gift or ratification, either in cash or kind;
(ii)grant of any material benefit, either monetary or otherwise
©”conversion” means renouncing one’s own religion and adopting another
Explanation: Own religion means religion of one’s forefathers;
(d) “force” includes show of force or threat of injury of any kind including threat of divine displeasure or social excommunication;
(e) “fraudulent” means and includes misrepresentation or any other fraudulent contrivance.
3. Prohibition of conversion – No person shall convert or attempt to convert either directly or otherwise any person from one religion to another by use of force or by allurement or by any fraudulent means nor shall any person abet such conversion.
4. Punishment for contravention of provisions of section 3 – Whoever contravenes the provisions of section 3 shall, without prejudice to any other criminal liability, be punished with simple imprisonment for a term which shall not be less than two years but which may extend to five years and shall also be liable to a fine, which may extend to fifty thousand rupees.
5. Offence to be cognisable and non-bailable – Any offence under this Act shall be cognisable and non-bailable and shall not be investigated by an office below the rank of Deputy Superintendent of Police.
6. Power to make rules -- (1) The State government may make rules for the purpose of carrying out the provisions of this Act.
(2) All rules made under this act shall be laid, as soon as may be, after they are so made, before the House of the State legislature, while it is in session, f a period of not less than fourteen days day which may be comprised in one session or in two successive sessions and if, before the expiry of the session in which they are so laid or the session immediately following, the House of the State Legislature makes any modification in any of such rules or resolves that any such rule should not be made, such rule shall, thereafter, have effect only in such modified form or be of no effect, as the case may be, so however, that any such modification or annulment shall be without prejudice to the validity of anything previously done thereunder..
STATEMENT OF OBJECTS AND REASONS
It has been observed by the State Government that some religious and other institutions, bodies and individuals are found to the involved in unlawful conversion from one religion to another by allurement or by fraudulent means or forcibly which at times has caused annoyance in the community belonging to the other religion. The inter-religious fabric is weakened by such illegal activities and causes land and order problem for the law enforcing machinery of the State.
In order to curb such illegal activities and to maintain harmony amongst persons of various religions, it has been considered expedient to enact a special law for the purpose
The Bill seeks to achieve the aforesaid objective
Hence the Bill
Gulabdchand Katariya
Minister in Charge
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PRELIMINARY SUBMISSIONS ON RajAsthan Dharma SWATANTRAYA Bill, 2006 by PUBLIC INTEREST LITIGATION SUPPORT AND RESEARCH CENTRE, DR RAJEEV DHAWAN
I. Introduction
1.1 This is a response to the Rajasthan Dharma Swatantraya Bill, 2006 which has presently been approved by the Rajasthan Cabinet and will be placed in the Legislature for approval.
II WHAT THE CONSTITUTION MAKERS DEVISED: RIGHT TO BELIEF, CONVERSION, PROPAGATION OF FAITH AND FREE SPEECH
2.1 The Constitution makers were concerned with the following fundamental rights:
(i) Freedom of speech and expression [Article 19(1)(a)]
(ii) Freedom of conscience [Article 25(1)]
(iii) Freedom to profess, practice and propagate religion [Article 25(1)]
2.2 While the initial draft of the Constitution did not include the term propagate, after deliberations in the Fundamental Rights Sub Committee, Minorities Sub Committee, the Advisory Committee and the Constituent Assembly, it was concluded that propagation would form a part of the right to religion.
Challenge in the Courts
2.3 This ambit of the Constitutional protection of conversion was examined by the Supreme Court in the Rev. Stanislaus case in which the Madhya Pradesh and the Orissa laws were challenged on the ground of violation of Art. 25. The salient features of the judgement are the following:
(i) It held that what Article 25(1) grants is not the right to convert another person to one's own religion by exposition of its tenets."
(ii) It was held that since any attempt at conversion was likely to result in a breach of public order affecting the community at large, the State legislatures would have the competence to enact the legislation.
iii CRITIQUE OF THE rajasthan LEgisLATION: PURPOSE AND INTENT
3.1 In order to critique the Bill, the purpose and intent of the Bill has to be examined. While the malafide of a legislative enactment cannot be challenged, the Supreme Court has rightly held that ‘the Court can tear the veil to decide the real nature of the statute’. Tearing the veil will show:
(i) the legislative purpose; and,
(ii) its predictable effect
3.2 The Statement of Objects and Reasons of the present Bill states as follows:
It has been observed by the State Government that some religious and other institutions, bodies and individuals are found to the involved in unlawful conversion from one religion to another by allurement or by fraudulent means or forcibly which at times has caused annoyance in the community belonging to the other religion. The inter-religious fabric is weakened by such illegal activities and causes land and order problem for the law enforcing machinery of the State. [Emphasis added]
In order to curb such illegal activities and to maintain harmony amongst persons of various religions, it has been considered expedient to enact a special law for the purpose.
3.3 In the context of restrictions on fundamental rights, public order has specific technical meaning which has been narrowly tailored by the Supreme Court. The Court has held that public order is something more than the mere maintenance of law and order and acts which disturb law and order may not amount to a threat to the public order. Thus, public order is a narrower and more rigid classification of the former and the two cannot be used interchangeably.
3.4 According to the statement of objects and reasons, the introduction of this Bill was desirable and necessary because of the following reasons:
(i) Annoyance caused to a religious community; and
(ii) Law and order problems
Both of these reasons are completely inadequate to justify a restraint of the manner imposed in the Bill especially as:
(i) As has been seen, law and order is not congruous to public order and restrictions cannot be imposed on Constitutional freedoms on the ground of law and order. In the present context, if there are any inter-religious tensions because of conversion, the state has been amply empowered by the Indian Penal Code to deal with such situations. Chapter XV of the IPC gives the State wide ranging powers to deal with law and order problems arising out of religious tensions.
(ii) Annoyance caused to a religious community is completely unacceptable as a ground for restricting Constitutional freedoms. The State is empowered under the IPC and the CrPC to regulate behaviour such as speech, publications, demonstrations, etc which may cause annoyance to religious communities.
IV. DETAILED ANALYSIS OF THE BILL
4.1 Short title, extent and commencement (Section 1)
Most legislative amendments have a provision stating that they shall come into force when the Government, in its discretion, deems fit to notify it by publishing it in the Official Gazette. However, in this case, there is no such discretion as the Bill itself provides that it shall come into force at once. In this respect, the Bill is placed on par with legislations such as TADA, POTA, which involve matters of such grave public implication and urgency such that the Government can have no discretion in them coming into force.
4.2 Definitions Clause (Section 2)
(i) The definition of unlawful is overbroad, circular and open to misinterpretation especially as it is dependant on the other provisions of the Bill, which are in themselves over inclusive and vague.
(ii) This definition of allurement is identical to the definition of the term ‘inducement’ in the Orissa Freedom of Religion Act 1967, which was struck down by the Orissa High Court on the ground that it was open to the reasonable objection on the ground that it was too broad and surpassed into the field of morality. While the judgement was later overruled in the Rev. Stanislaus case, this aspect of the legislation was not discussed and is thus open to challenge
(iii) The definition of conversion shows the partisan nature of the Bill, which includes conversions, but does not include re-conversions. This means that, for example, conversions from Hinduism to other religions are covered in the section, but not re-conversions back to the original faith. It is pertinent to note that this narrow definition of conversion is an addition in the present Rajasthan Bill.
(iv) The definitions of force and fraudulent are extremely broad and cover a vast number of situations which could possibly be used to include activities of propagation. Any religious propaganda could be considered to be a misrepresentation or force within the meanings of these definitions.
4.3 Criminalization section (Section 3)
(i) This Section has criminalizes conversion or attempt to conversion, directly or otherwise. This is an extremely wide clause and within the scope of attempting, directly or otherwise, a whole range of religious activities can be included, including the propagation of religion.
(ii) It may also extend to cover incidental matters such as conversions according to personal laws. For instance, if a Hindu woman marries a Muslim and converts, and a Meher amount is fixed during the marriage according to Muslim personal laws, this would be covered under this section as conversion by allurement.
(iii) Further, the Section has also placed conversion and attempt to convert has been placed on the same footing, and the punishment is the same for both of them. This is in violation of the principle of criminal jurisprudence (recognized in the Indian Penal Code) that the attempt to commit an offence is less serious that the actual commission of the offence and thus must be differentially punished.
(iv) It also overlooks the various nuances of criminal liability for the abetment of an offence and simply provides a common liability.
4.4 Punishment section (Section 4)
(i) The punishment clause demonstrates the manner in which the Government has tried to criminalize religious conversions. The penalty is harsher than the penalty for offences like rioting, causing death by negligence, wrongful restraint, etc. Such a harsh punishment clause, combined with the broad inclusion in Section 3 creates a situation in which normal religious activities of propagation are hampered.
(ii) As has been mentioned earlier, the Bill ignores the principles of criminal jurisprudence with respect to the criminal liability for attempt and abetment.
4.5 Section 5
(i) While this Section provides for investigation by a senior level Police officer, it removes the prior sanction from the civilian district authorities which had been provided in preceding anti-conversion legislations. This concentration of authority in the hands of the Police and the lack of supervision from the district administration makes the Bill vulnerable to abuse.
(ii) Also, we see that it makes the offence non-bailable and this underscores the attempt of the Government to make any offence under this Bill a grave one.
(iii) There are no other provisions to ensure that the powers are not abused and that due process requirements are met.
(iv) The possibility of abuse of the powers under this Bill, especially at the hands of the Police leads to the Bill directly curtailing the right of religions, especially minorities, to propagate.
v Secularism
5.1 The present Bill can be challenged not only on the ground that is violative of the Constitutional freedoms of speech and religion, but also because it violates secularism, which is a part if the basic structure of the Constitution. In the case of the present legislation, it is clear that the State is actively intervening in a partisan manner to protect a particular religion from a perceived crisis. There can be no doubt that this Bill has been drafted with the legislative intent and purpose of preferring the rights of one religion at the cost of the minority religions. It targets particular communities both to stop efforts to convert and to create a situation of intimidation where others are unwilling to convert. Even in practice, the enforcement of the Bill will amount to community targeting and will be implemented in a manner which will exacerbate communal tensions. Thus, the Bill, both in purpose and in its inevitable effect is a violation of the secular structure of the Constitution.
Vi CONCLUSION
6.1 It is evident from the foregoing discussion that the present Rajasthan Bill is constitutionally invalid and flawed due to the following:
· The Bill seeks to impose restrict the right to freedom of religion and speech on the grounds of law and order, which is constitutionally impermissible.
· The Bill direct and inevitable effect of the Bill is not only to regulate conversions, but also to cripple the right of religions, especially minority religions to propagate their faith.
· This affects the rights of an individual to be converted, which is a part of the fundamental right to religion.
· The Bill is partisan in its purpose and intent as it seeks to protect the community from which the conversions are taking place.
· The provisions of the Bill are over inclusive and provide enough loopholes for abuse of the powers under the Bill.
· It violates the requirements of due process and ignores principle of criminal jurisprudence.
6.2 In view of the above, the constitutionality of the Bill is open to challenge. The possible objection to this may be the Stanislaus judgement of the Supreme Court, but those objections may be addressed as follows:
· The Supreme Court judgment in Stanislaus was directed towards only forced conversion or coercive conversion and thus has to be strictly interpreted.
· The judgement has not addressed the particular provisions of the legislations and they still remain open to challenge.
· .
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Acts of Bad Faith -- Anti-conversion laws in India
[Courtesy: Human Rights Features copyright © SAHRDC
On 29 December 2006, the government of the northern Indian state of Himachal Pradesh passed the Himachal Pradesh Freedom of Religion Bill 2006. The government claimed it was intended to prevent religious conversions through “force” or “inducement”.
The Bill – yet to be signed into law – is modelled on other existing anti-conversion laws in other Indian states, but it is unique in that it was adopted by a Congress Party-led state government. The Congress Party had opposed similar laws in the past in other states ruled by the Hindu nationalist Bharatiya Janata Party. However, Congress-ruled state governments in Arunachal Pradesh and Orissa have passed acts similar to the Himachal Pradesh Bill, and taken together, these pieces of legislation expose the hollowness of the Congress Party’s claims of being a secular party.
Once Himachal Pradesh signs the Bill into law, it would be the sixth Indian state to adopt anti-conversion legislation, joining the ranks of Arunachal Pradesh, Orissa, Madhya Pradesh, Chhattisgarh, and Gujarat. A seventh state, Jharkhand is also expected to pass an anti-conversion law.
There is no doubt that conversions brought about by violence or other equally illegitimate means of coercion cannot be permitted. Indeed, such conversions violate the freedom of religious beliefs protected within both the international instruments and the Indian Constitution. However, the language adopted by the Acts in these states goes far beyond protecting this fundamental right.
The definition of force
All the anti-conversion laws share a common definition of what constitutes “force” in forced conversions. As the Rajasthan Bill provides:
‘Force’ includes a show of force or a threat of injury any kind, including threat of divine displeasure or social ex-communication.
It is uncertain how this prohibition will work in practice. For example, if a religion teaches that non-adherents risk divine displeasure (as with Christianity, Islam, and Judaism), teaching this article of faith may constitute an act of force under the Act. This may be contrary to the freedom to change one’s religion. As H. M. Seervai points out in his discussion of the right to propagate, “[a] person cannot choose if he does not know what choices are open to him (sic)”. As a result of the overly broad definition of “force”, a person engaging another in order to bring about his or her conversion cannot inform the potential convert what the religion teaches about non-adherents. This limits the information that may be made available to the potential proselyte. An individual cannot fully exercise his or her freedom to change religion if such information is withheld.
The definition of allurement
According to the Rajasthan Bill:
‘[a]llurement’ means offer of any temptation in the form of
1) any gift or gratification, either in cash or in kind;
2) grant of any material benefit, either monetary or otherwise
The Madhya Pradesh, Chhattisgarh and Gujarat anti-conversion laws rely on an identical definition. The Orissa and Arunachal Pradesh laws are worded slightly differently:
[i]nducement shall include the offer of any gift or gratification, either in cash or in kind and shall also include the grant of any benefit, either pecuniary or otherwise.
The High Court of Orissa struck this definition down as being too vague and passing into the realm of morality. Though the High Court’s decision was overturned by the Supreme Court in Stanislaus v. Madhya Pradesh & Ors, the Supreme Court did not discuss this aspect of the High Court’s judgment.
The potentially broad scope of the term “allurement” is troubling. Christian groups have expressed concern that the provision might be used to prohibit acts of charity, as they might be interpreted as “temptations” to convert. As charitable acts are also fundamental to many religious traditions, such an interpretation may restrict the freedom of its adherents to practice their religion or religious beliefs. It is conceivable that the provision of education or medical care by religious denominations might also be interpreted as “temptations” intended to induce conversions.
The definition of fraud
The Rajasthan Bill and Gujarat Bill provide:
[f]raudulent’ means and includes misrepresentation or any other fraudulent contrivance.
The Acts in Orissa, Madhya Pradesh, Arunachal Pradesh, Chhattisgarh Acts state:
[f]raud shall include misrepresentation or any other fraudulent contrivance’.
Once more, the imprecision of this definition is apparent. To take an extreme example, if an individual was told they would feel closer to God upon conversion and the converted person did not subsequently experience this degree of spirituality, would this constitute ‘misrepresentation’? The legislation provides no guidance about how such a definition should be understood, and potentially it is extraordinarily wide in scope. Indeed, the very idea of the concept of “fraud” in the context of religious belief is fraught with peril for a secular form of government. How can a Court adjudicate “fraud” in matters of faith without impermissibly entangling itself in the tenets of a religion?
The prohibition of conversions
All of the anti-conversion acts prohibit conversion in the following terms:
No person shall convert or attempt to convert, either directly or otherwise, any person from one religion to another by use of force or by inducement or by any fraudulent means, nor shall any person abet any such conversion.
Supporters of the laws argue they are intended to prohibit conversions or conversion attempts that are conducted by allurement, force or fraud. They suggest that such conversions are presently taking place, and that these laws are designed to criminalize such activities. The anti-conversion acts are therefore presented and titled as if their purpose were the protection of the ‘freedom of religion’.
These laws, however, actually serve to infringe upon religious freedom and contradict rights protected within international agreements and the Indian Constitution. Such laws are motivated by a religious ideology driven by an irrational and insecure Hindu xenophobia that is antagonistic to religious minorities.
Anti-conversion laws and the Indian Constitution
Articles 25 to 30 of the Indian Constitution deal with religion. Article 25 is most relevant for present purposes. It is similar to Article 18 of the Universal Declaration of Human Rights (UDHR). Article 25 reads in relevant part as follows:
25. Freedom of conscience and free profession, practice and propagation of religion.
(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious Institutions of a public character to all classes and sections of Hindus.
The Supreme Court has commented on the scope of the protection of religious freedom within the Constitution as follows:
…while his (sic) religious beliefs are entirely his own and his freedom to hold those beliefs is absolute, he has not the right to act in any way he pleased (sic).
The Constitution protects the freedom of individuals to hold any religious beliefs. However, the freedom to manifest one’s religion or belief is not absolute. Nonetheless, this freedom can only be limited according to the provisions of the Constitution.
Anti-conversion laws and international safeguards
While international instruments do not explicitly recognize a per se right to proselytise, there is a strong case to be made that the religious freedom within Article 18(1) of the International Covenant of Civil and Political Rights (ICCPR) encompasses the right to attempt to peacefully propagate one’s religious beliefs. That Article states:
Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
The United Nations Human Rights Committee has commented that ‘[t]he freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts’. Further, the ‘practice and teaching of religion’ is said to include the ‘freedom to prepare and distribute religious texts and publications’. The Committee has concluded that the right to freedom of thought, conscience and religion is both ‘far-reaching and profound’. In light of these observations, it seems reasonable to conclude that the freedom should be interpreted to include distribution of texts and publications to non-adherents where the objective is to secure their conversion.
The Human Rights Committee has also declared any restrictions on the freedom to manifest one’s religion or beliefs pursuant to Article 18(3) must be ‘directly related and proportionate to the specific need on which they are based.’ The Special Rapporteur of the Commission of Human Rights on freedom of religion or belief has similarly concluded that Article 18 allows for restrictions ‘only in exceptional circumstances’. It is hard to understand what ‘exceptional circumstances’ exist in India that would justify the passage of so many anti-conversion laws.
Conclusion
The anti-conversion laws, both by their design and implementation, favour Hinduism over minority religions. This represents a significant challenge to Indian secularism. The erosion of the principles of secularism and toleration risks fanning inter-religious tensions. It is no exaggeration to say that India stands at a crossroads and must be careful to reassert its commitments to the tenets of religious toleration and secularism.
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