Your Lordships, a humble open letter

Your Lordships, there is no other institution that enjoys as much authority amongst the citizens as the Supreme Court. But a dispassionate and frank analysis of some past judgments of the Court cannot but lead one to believe that the Court’s pronouncements are being used legitimise insidious claims that now threaten to render this country apart.

The way that the Court has legitimised forces that it ought not to have any truck with can be given a name: partisanship towards the moral credentials of one religion over those of others, and a religious paternalism towards the citizens. The first, partisanship, has been repeatedly expressed in the Court’s claim in many judgments that Hinduism is a uniquely pluralistic, democratic and tolerant religion.

This may or may not be true. But I would humbly submit that the Court should not be in the business of defining what the essential characteristics of any religion are; these are a matter for historical and theological argument.

By suggesting that Hinduism is, in some senses morally privileged the court has given needless succour to those who would paradoxically use Hinduism’s supposedly tolerant qualities to beat up on other religions, particularly Islam and Christianity.

Your Lordships, judges should not be in a position of interpreting a religion’s content, for its adherents and the Court has repeatedly fallen into the trap in a manner that largely privileges Hinduism. Each historical religion has its profound failings and it will do none of us any good if the Court decides to sort them out for us.

What the content of particular religions is, historically, should be irrelevant for determining the rights that our constitution accords us. It creates needless partisanship and controversy.

Second, Your Lordships, in the landmark decision, in Stanislaus vs State of Madhya Pradesh, legitimised a tendency that is now threatening to wreck the peace in every state, and trample on the rights of individuals. By upholding anti-conversion laws, your lordships have created an opening for the kind of laws Tamil Nadu is just proposing to pass.

These laws are based on fallacious assumptions—the first being that one can make a distinction between the freedom to propagate one’s religion on the one hand, which Article 25 of the Constitution expressly protects, and attempts to convert someone of another religion. This is an extraordinarily obscure distinction and is in any case irrelevant.

Just as arguments advanced with the aim of convincing someone are perfectly legitimate, so is propagation with the aim of conversion.

Second, there is an assumption that most conversions happen because of some material allurements being offered by the converting parties.

The Supreme Court, and I suspect many Hindus at large, think that this is scandalous. The idea that people should trade away their religion or conscience under some inducement may be reprehensible. But it ought to be even more scandalous that we feign horror at the prospect that people might convert for anything other that religious motives, but are barely offended by the fact that we live in societies where people are routinely put in such positions of deprivation that selling one’s soul seems the most humane thing to do.

But the deeper worry is that in a liberal society, the state ought not to be in the business of saving anybody’s souls. It really is irrelevant to the state what people’s motives behind choosing their religious confession are. We may find the fact that people choose their religion for all kinds of motives uncomfortable, but frankly, it really is none of our business.

Third, there is the assumption that particular groups need protection. But again, there is something disquieting about the underlying assumptions.

The Tamil Nadu Ordinance assumes that groups like the Scheduled Castes as tribes cannot manage their own beliefs and are more susceptible to being duped than everyone else. This is an extraordinarily condescending attitude, which sets up the state as the benefactor of the Scheduled Castes and the protector of their beliefs. It is ironical that parties associated with anti-Brahmanism can endorse the kind of condescension that has Brahmanism written all over it.

Fourth, there is the bizarre assumption that if force is being deployed to convert someone, we need special legislation. I would have assumed that it is illegal to force someone to do something against their will anyway, whether it is getting them to convert or to do something else. Allurement is too vague a term and doesn’t prima facie strike most people as a crime.

Fifth, the argument that conversion is a threat to law and order is curiously self fulfilling. It is a threat to law and order only because groups interfere with the right of individuals to exercise their free choices, for their own reasons.

Finally, in our political climate, there is a steadfast refusal to see conversion for what it might be: a form of political dissension and social protest; an act of choice in a world which gives many of those who exercise it very few choices.

Those who object that conversions should be banned because they are politically motivated miss the point. The point is exactly that they can be political.

Since when is political speech a crime in a democracy? In effect, anti-conversion legislation is an abridgment of fundamental political freedoms as well.

Our republican constitution was founded on a fundamental faith in the capacity of individuals to be the best judges of what most concerned them. Without this presumption we would be a theocratic state. What the state should do is protect the fundamental inviolability of individuals that our fundamental rights express. This requires determining neither what people’s motives are, nor interpreting religious doctrine. It requires that individuals’ fundamental freedom to choose be respected, and their capacity to make discerning choices be honoured.

I hope that at the earliest opportunity you will rescue our jurisprudence on religious matters from the thicket of religious interpretations, and obscure philosophical distinctions in which it has become embroiled.

Be the guardian of our rights, not the unwitting agents of forces that seek to imperil the very constitution which gave you its authority and gave me my rights. Your Lordships have so often saved fundamental democratic values, and citizens of India are hoping that you will do so again.

Yours respectfully,
Pratap Bhanu Mehta,
Professor of Philosophy and of Law and Governance,JNU