An unconstitutional proposalhttps://indianexpress.com/article/opinion/columns/an-unconstitutional-proposal/

An unconstitutional proposal

The freedom to profess a religion implies freedom to change religion. An anti-conversion law is a dangerous idea

The Shiv Sena opposes conversions, says it is time India and Pakistan exchange Hindu and Muslims.

Communalism is the core ideology of the BJP and religious polarisation its main political programme, it seems. To run this programme and prop up its ideology, it has again raked up the issue of religious conversions. This issue, which resurfaced due to the recent Agra conversions orchestrated by persons linked to the BJP through the Dharm Jagran Samiti, has rocked both Houses of Parliament. What happened in Agra was unconstitutional, unethical, immoral and illegal, where Muslims were lured to convert with the offer of BPL ration cards. When the opposition raised this issue in Lok Sabha, the ruling BJP was defenceless. Parliamentary Affairs Minister Venkaiah Naidu jumped into the debate, saying that since childhood, he had dreamt of a ban on all sorts of religious conversions and that the government is ready to enact an anti-conversion law. This was a frivolous argument, a face-saver. But the BJP has succeeded in dragging the opposition into the debate.

The Constitution does not provide for an anti-conversion law. It gives freedom of religion to all its citizens. Article 25(1) states: “Subject to public order, morality and health and to other provisions of this part, all persons are equally entitled to freedom of conscience and right to profess, practise and propagate religion.” No immoral act is allowed in the propagation of religion and social health has to be maintained. India has been a pluralistic religious society for centuries. Our forefathers, while writing the Constitution, had adopted a structure based on the values of liberal, democratic and secular thought. The aspect of freedom of religion enshrined in our Constitution has been debated in the past. From the lower courts to the Supreme Court, the issue of religious conversions has been dealt with in depth. The SC has upheld the constitutional provisions in the past. In its 235th report, the Law Commission of India dealt with the issue while prescribing the mode of proof for conversions and reconversions to another religion, suggesting a law on conversions rather than an anti-conversion law. It says: “It is well settled that freedom of conscience and the right to profess a religion implies freedom to change religion as well. It is pertinent to mention that Article 18 of the Universal Declaration of Human Rights specifically lays down that the freedom of conscience and religion includes freedom to change religion or belief.” It has further quoted the judgment of Justice R. Basant in a marriage dispute case: “Religious conversions may appear to many in the Indian mindset to be unnecessary, puerile and a negation of the very concept of respect of both the religions and the followers of such religion. But, certainly, the freedom of faith guaranteed by the Constitution may not justify the negation of the right to pursue the chosen faith by conversion where necessary”. It appears that Naidu has conveniently chosen to ignore this report.

The issue of religious conversion and the right to propagate religion was debated even before Parliament came into existence. On December 6, 1948, in a Constituent Assembly debate, Loknath Mishra expressed apprehensions about the liberal approach. He said, “Indeed, in no constitution of the world [is the] right to propagate religion a fundamental right and justifiable.” He was countered by other members and finally his objection was set aside. Laxmikant Maitra countered him: “Propagation does not necessarily mean seeking converts by force of arms, by the sword or by coercion. But, why should an obstacle stand in the way if by exposition, illustration or persuasion you could convey your own religious faith to others?” Echoing the same view, K.M. Munshi said: “… under [the] freedom of speech which the Constitution guarantees, it will be open to any religious community to persuade other people to join their faith. So long as religion is religion, conversion by free exercise of conscience has to be recognised.”

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Our Constitution is clear about the concept of the propagation of religion and conversions. They are two sides of the same coin, and guaranteed as a fundamental right. But, to my mind, if any conversion is affected by coercion, inducement or allurement, it is unconstitutional. Taking this aspect into account, many state governments have enacted laws to check forceful conversions, like Madhya Pradesh and Odisha, etc. However, interestingly, the names of these acts do not convey the essence of conversion. For example, the MP act is known as the Madhya Pradesh Dharma Swatantrya Adhiniyam, 1968 and the Odisha act is the Orissa Freedom of Religion Act, 1967. Even the name of the laws enacted to check conversion by state governments refrain from using the word “conversion” because it is against the spirit of the Constitution.

On January 17, 1977, the SC delivered a judgment in Rev. Stanislaus vs State of Madhya Pradesh, where it explained the constitutionality of these state acts and denounced forceful conversions. The SC quoted the observation of the high court of Madhya Pradesh: “What is penalised is conversion by force, fraud or by allurement. The other element is that every person has a right to profess his own religion and to act according to it. Any interference with that right of the other person by resorting to conversion by force or allurement cannot, in our opinion, be said to contravene Article 25(1) of the Constitution of India, as the article guarantees religious freedom subject to public health.”

In the final analysis, the BJP must understand and accept the difference between conversions and forceful conversions. The BJP lost its pitch in UP when it raked up the issue of “love jihad” before the by-elections. The Agra conversions are a ploy to polarise the state’s voters, keeping the UP elections in mind. The BJP should focus on the development agenda and refrain from divisive politics on the basis of religion. The sinister design, especially by the BJP fringe, to polarise voters will not yield political dividends but instead ensure the party’s early exit from power. The electorate, particularly young voters, voted for socio-economic development and will not tolerate any deviation from this agenda.

The writer, a former MP, is a senior Congress leader