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Opinion » Lead

Published: December 23, 2014 01:13 IST | Updated: December 23, 2014 01:13 IST

Conversion and freedom of religion

Suhrith ParthasarathyWhile organised events of conversion can incite violence and hatred, the enforcement of a national anti-conversion law, as someadvocate, is not the panacea. Besides inflicting greater damage, it would render our rights to freedom of conscience and religionvalueless, and derail efforts at achieving a peaceful, democratic society

One of the oft-repeated theories in the wake of the general election this past May was that Prime Minister NarendraModi assumed power by presenting a single-minded commitment to developing India’s economy. In truth, campaigns,in many parts of the country, were intensely divisive affairs. Many of those who canvassed for votes, and who havesince been accorded important positions in the ruling party, often trod treacherously beyond communal boundaries.This dissonance, which was inherent in the attitude of the Bharatiya Janata Party (BJP) towards the election, has nowgrown further, and it increasingly appears that the government is incapable of deviating from what is quite plausibly itsreal agenda.

As much as Mr. Modi would like us to believe that it is his plank of a developmental model that continues to hold theprimary sway in his policies, his stark reticence in dealing with the acrimonious practices of the BJP’s allied groupsseems to paint a different picture. The state, under the BJP, is slowly progressing towards more pervasive involvementin matters of ethical choice such as religion. And, the Sangh Parivar has only been emboldened by the attitude of thenew regime. Week after week, its agenda of Hindutva has seen the imposition of new and stridently discordantmeasures. The latest salvo involves the organisation of programmes of “Ghar Vapsi,” for the conversion (or“reconversion” as the Hindu Right would have it) of Muslims and Christians to Hinduism.

The right wing and conversion

The Dharam Jagaran Samiti (DJS) — an offshoot of the Rashtriya Swayamsevak Sangh (RSS) and the Bajrang Dal —only recently announced that it aims to meet a target of converting one lakh Muslims and Christians into Hinduismevery year. Earlier this month in Agra, the DJS reportedly converted some 200-odd Muslims to Hinduism. The eventcame to light after the supposed converts, many of who are among the most impoverished sections of the society,alleged that they had been misled into believing that they would be offered Below Poverty Line cards by consenting tothe conversion. In spite of these contentions, the Sangh Parivar remains unmoved in its agenda. According to a reporton the website Scroll.in, the Vishwa Hindu Parishad (VHP) has already made plans to mark the 50th anniversary of thegroup’s founding on February 6 with a Ghar Vapsi in Faizabad next year. Making matters worse, the VHP has claimed,as The Hindu reported, that those Muslims or Christians who reconvert to Hinduism in such programmes would beallowed to choose a caste for themselves once the VHP has investigated the tradition, faith, and culture of the convert’sancestors.

Read: The Hindu's Sunday Anchor story: Conversion Confusion

The Ghar Vapsi programmes organised as they are by the Sangh Parivar are an attempted show of strength. They seekthe state’s connivance in administering a terrifying form of majoritarianism. But, when we respond to these organisedevents of conversion, it is crucially important that we view them in the right light. The programmes no doubt carryenormous potential to incite violence and hatred between communities; they are immoral, wicked and capable ofproducing dire consequences. To that end, we must certainly impose responsibility on the state to curb the creation ofan even more fractured society. But we must not see the enforcement of a national anti-conversion law, as some have,as the panacea. Such legislation can produce even greater damage; it would render nugatory our rights to freedom ofconscience and religion, and in the process, it would scuttle any genuine attempts at achieving a peaceful, democraticsociety.

Indeed, the BJP has already been quick to take advantage of the clamour for an anti-conversion legislation. In reactingto rhetorical pressure from the Opposition in both Houses of Parliament, the Union Parliamentary Affairs Minister, M.Venkaiah Naidu, suggested precisely such a law as a solution for the present unrest. Yogi Adityanath, the BJP memberof the Lok Sabha for the Gorakhpur constituency, who is a star attraction for the Hindu Right in Ghar Vapsi events, hasalready fuelled the fire. “This (Ghar Vapsi) has been happening for ages. It is an ongoing process and it will continue tohappen,” he told reporters after the recent event in Agra. “If the Uttar Pradesh Government feels the reconversionprogramme is wrong then the way the State governments of Madhya Pradesh, Odisha, Rajasthan, Himachal Pradeshand Gujarat have a law ... a similar legislation should be made in U.P.” He further sought to place the Opposition in anexacting conundrum. If parties feel there should be a law against conversion, he said, “why don’t they support the moveof having such a law?”

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“If a person’s rightto propagate hisreligion does notinclude a right tofreedom of speechaimed at seekingconversions, wouldnot such a right bepurely illusory ”

Read: Propagation without proselytisation: what the law says

Intuitively, Mr. Adityanath’s comments — sans the divisiveness — even appear logical. A law banning the use ofcoercion in seeking religious conversion seems to be in consonance with general principles of a democratic society.However, our experience with such legislation — as can be gathered from the impact of such statutes in MadhyaPradesh and Gujarat — shows us that these laws would inevitably be fraught with interpretive maladies that oftenstrike at the root of our right to religious freedom. What’s more, a legislation of such a nature would be simplyunenforceable without applying a duplicitous standard of statutory construal. The better choice, in thesecircumstances, is to prosecute illegitimate acts of force and coercion, which evoke genuine sentiments of communalhate, through the general operation of the penal law aimed at maintaining public order, while leaving conversionslargely unmonitored.

Restricting religious liberty

The illiberal trappings of an anti-conversion law, however, do contain a rare appeal. In fact, the Supreme Court of Indiahas taken a kind viewing towards such laws. In 1977, in Rev. Stainislaus v. State of Madhya Pradesh, (AIR 1977 SC908), a five-judge bench of the court delivered a verdict on the constitutional validity of two of the earliest pieces ofanti-conversion legislation in India: the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968, and the OrissaFreedom of Religion Act, 1967, both of which, with no small dash of irony, restrict, as opposed to promote, religiousliberty.

The two statutes are akin in that they both envisage intimation to the District Magistrate every time a conversion takesplace, and in that they both prohibit — and impose criminal liability on — conversion or attempt to conversion by theuse of force or by inducement (allurement, in the case of the Madhya Pradesh law) or by any other fraudulent means.The definitions prescribed for these terms however are decidedly vague, capricious, and prone to causing substantialharm. The Orissa law, for example, defines force, inclusively, to mean “a show of force or a threat for injury of any kindincluding threat of divine displeasure or social excommunication.” And inducement is defined even wider, to include“the offer of any gift or gratification, either in cash or in kind,” including “the grant of any benefit, either pecuniary orotherwise.”

Interpreting Article 25

In upholding these laws, Chief Justice A.N. Ray, who delivered the judgment, adopted a muddled approach tointerpreting Article 25 of the Constitution. Article 25 states that subject to public order, morality and health, and to theother fundamental rights guaranteed in the Constitution, all persons are equally entitled to “freedom of conscience andthe right freely to profess, practise and propagate religion.” Justice Ray interpreted the word “propagate,” to mean “totransmit or spread one’s religion by an exposition of its tenets,” but to not include the right to convert another personto one’s own religion. “It has to be remembered that Article 25(1) guarantees ‘freedom of conscience’ to every citizen,and not merely to the followers of one particular religion,” wrote Justice Ray, “and that, in turn, postulates that there isno fundamental right to convert another person to one’s own religion because if a person purposely undertakes theconversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of hisreligion, that would impinge on the ‘freedom of conscience’ guaranteed to all the citizens of the country alike.”

Justice Ray’s reasoning, however, clearly conflates the issue. If a person’s right topropagate his religion does not include a right to freedom of speech aimed at seekingconversions, would not such a right be purely illusory? As the constitutional lawscholar, H.M. Seervai, observed, in response to the decision in Stainislaus, “topropagate religion is not to impart knowledge and to spread it more widely, but toproduce intellectual and moral conviction leading to action, namely, the adoption ofthat religion. Successful propagation of religion would result in conversion.”Therefore, when a person converts to another religion, based on speech, which aimsat producing such conversion, he or she is, in fact, exercising a general right tofreedom of conscience.

In confusing a person’s liberty to exercise free conscience for another person’s rightto propagate religion, Justice Ray’s verdict produced damaging results. A conclusionthat propagation ought to be restricted only to the edification of religious tenets is areasoning that gratifies the interests of the majority, and the majority alone. Or, asMr. Seervai observed, “it is productive of the greatest public mischief.”

In the decades that have followed Stainislaus, the Madhya Pradesh and Orissa laws— and similar legislation enacted in Gujarat, Rajasthan and Himachal Pradesh —

have been used by State governments to target conversions to minority religions, in particular, upsetting, thereby eventhe most basic commitment to secularism.

The decision in Stainislaus is however incorrect not merely due to its tangible consequences. The case relates to afundamental, and more nuanced, issue of intervention by the state — and its courts — in religious affairs. Anti-

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conversion laws allow the state the authority to determine what constitutes an illegitimate inducement, and, in doingso, they create a slippery slope. They promote increased governmental involvement in matters that involve pure ethicalchoices, and they ingrain a deep and dangerous form of paternalism: the state is always watching you, and it hasnothing but your best interests in mind. This ought to be a matter of grave concern.

(Suhrith Parthasarathy is an advocate in the Madras High Court.)

Keywords: Freedom of religion, religious conversions, Agra Bengali Muslim community, Agra conversions, Hindutvaorganisations, Muslim clerics, Hindu Jagaran Samiti, VHP

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