Opinion Tahir Mahmood writes | Supreme Court on charity and conversion: The answer may lie in the words of Mahatma Gandhi
The Court's concerns cannot be completely brushed aside. But laws and rulings in this regard have also drawn sharp criticism
An observation made by the Supreme Court on "forced conversions" is to be considered in the light of the provisions of the Constitution relating to people’s fundamental right to freedom of religion, its legislative history and judicial interpretation. (Express Archive) “The purpose of charity should not be conversion. Every charity or good work is welcome, but what is required to be considered is the intention,” said a Division Bench judge of the apex court hearing a petition seeking a ban on “forced” conversions (IE, December 6). The observation, loaded with significant implications, is to be considered in the light of the provisions of the Constitution relating to people’s fundamental right to freedom of religion, its legislative history and judicial interpretation.
The Universal Declaration of Human Rights 1948 — which was before the makers of the future Constitution for independent India — had proclaimed: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance” [Article 18]. Keeping this in mind, religious freedom as a people’s right was repeatedly debated in the Constituent Assembly. In cognisance of Christianity’s traditions of evangelism and proselytisation, it was to include the right to propagate religion.
While the first draft of the future Constitution proposed to restrain conversion except by one’s own free will, the second was to recognise the “right to preach and convert within limits compatible with public order and morality.” Eventually, the Constitution recognised the right to propagate, along with freedom of conscience and the right to profess and practice, one’s religion as people’s fundamental right. Prima facie, individuals’ right to forsake their religion by birth and embrace another faith was integral to freedom of conscience. Interestingly, the Bombay High Court has recently held that the freedom of conscience of a person “includes a right to openly say that he does not believe in any religion” (Ranjeet Mohite, 2015).
As regards the propagation of religion, in two cases decided in 1954, the apex court observed that Article 25 covered every individual’s right “to propagate his religious views for the edification of others” (RP Gandhi) and that “it is the propagation of belief that is protected, no matter whether the propagation takes place in a church or monastery, or in a temple or parlour meeting” (Shirur Math). Alarmed by these decisions, an Indian Converts (Regulation and Registration) Bill was soon moved in Parliament by a member of the ruling party of the time. However, neither the said Bill nor the Backward Communities (Religious Protection) Bill of 1960 led to the enactment of any central law on conversion.
The British rulers of India, who were never shy of introducing measures to facilitate the conversion of others to their faith, had enacted in 1866 a Native Converts Marriage Dissolution Act to provide the facility of divorce to married Indians who converted to Christianity and were thereupon deserted by their non-converting spouses. After Independence, the Law Commission of India recommended that this Act be revised to make it a general law on the effect of post-marriage change of religion (Report no. 18 of 1961), but the government did not take any action on it. The original Act remained in force till recently but was eventually dropped from the statute book by the Repealing and Amending Act of 2017.
Alerted by the missionaries’ evangelistic activities, several princely states of the pre-Independence era had enforced anti-conversion laws – Raigarh, Udaipur and Bikaner among them. During 1967-68, state legislatures in Orissa and Madhya Pradesh enacted similar laws, both ostensibly titled as Freedom of Religion Act. Christian leaders lost no time in challenging their constitutional validity in the Supreme Court. Heading a Constitution Bench, Chief Justice of the time AN Ray — known for his infamous ruling in the ADM Jabalpur case of the dark Emergency days – argued that converting people interfered with their religious freedom and held that Article 25 granted “not the right to convert another person to one’s own religion but (only) to transmit and spread one’s religion by an exposition of its tenets” (Rev. Stanislaus, 1977). The verdict evoked sharp criticism by some eminent constitutional experts including H M Seervai who said that the “conclusion runs counter to legislative history” of Article 25 and that the decision of the Bench was “clearly wrong” (Constitutional Law of India, 1983).
The Constitution Bench decision inspired some other states to enact similar laws, beginning with the Arunachal Pradesh Freedom of Religion Act 1978. Today there are such laws in about half of our states. Some of these have been either newly enacted or made more stringent, since the beginning of the present political dispensation in 2014. All of them prohibit converting people from one to another religion without their free will and, to indicate this, use various expressions like force, fraud, inducement and allurement. The evangelists, however, never admit using any of such unlawful means to win converts and persistently claim that conversion to their faith is always voluntary. The stories of the use of force or fraud by the evangelists for converting people may not be true, but the cases of resorting to inducement and allurement for this purpose are not altogether without a basis. The charity-conversion nexus for which the apex court has shown deep concern in the case under hearing cannot, therefore, be flatly brushed aside as something totally imaginary.
Mahatma Gandhi once said that “all faiths are equally true though equally imperfect” – how true indeed. He had pleaded that, instead of converting others to one’s own faith, “our innermost prayer should be that a Hindu should be a better Hindu, a Muslim a better Muslim and a Christian a better Christian” (Young India, 1924). The great Mahatma had also once said: “If I had power and could legislate I should stop all proselytising” (Harijan, 1935). Had the power the Father of the Nation was longing for been duly conferred on him, today the nation could have been largely free from communal tensions resulting from the Achilles’ heel of conversion from the majority religion of the country to any other faith.
The writer is former chairman, National Commission for Minorities
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