By Chandan Mohanty, KIIT Law School, KIIT University, Bhubaneswar.
India, the largest democratic country in the world, inhabits people from different religions. The majority population in India is Hindu. Muslims, Christians and few other religions also have a significant number of followers.
The Preamble of the Indian Constitution says that India is a secular country. The Constitution of India further provides the freedom of practicing any religion peacefully and harmoniously without hurting the religious sentiments of the people of other religion as a fundamental right. This is the reason why India is well known for “Unity in Diversity”.
The Indian Constitution provides for freedom of religion, and the supporters of anti-conversion laws believe that they help to promote religious freedom by protecting people from forced conversion. Those against anti conversion laws believe that the laws infringe on the fundamental rights to freedom of religion because they prevent people from being able to convert to a religion of their choice.[1]
Recently in the district of Kandhamal of Orissa, India saw the worst picture of conversion without consent. Laxman Nanda Saraswati, a teacher in the district of Kadhamal, protested against such conversion and was assassinated for doing so. This act got popular in media and spread like a wildfire throughout the nation.
Anti conversion laws are intended to prevent people from being unethically converted from one religion to another. This article will look into the history of anti-conversion laws and laws of different states of India. It will also analyse the constitutional validity of anti-conversion laws in India.
History of Conversion Laws
Anti-conversion laws have a long history India. Many princely states enacted them in the early 1930s. In 1980s some states enforced anti-conversion laws primarily against Muslims. Since the late 1990s these states have begun to enforce these laws against Christians.[2]
Anti-conversion laws have arisen from a long history of religious activity in India. These laws were first seen during British colonial period, although the government did not promulgate any anti-conversion laws. However, Hindu princely states enacted them during the British missionaries.[3]
Many states, during the colonial period, enacted such laws in order to stop people from changing their religion from Hindu to some other religion like Christianity. The attempt was to increase the population of Hindu followers in India.
Anti-conversion Laws of Different States in India
The first of the post colonial anti-conversion laws were passed in the state of Orissa and Madhya Pradesh in the 1960s. The Orissa Freedom of Religious Act of 1967 and Madhya Pradesh Dharma Swatantraya Adhiniyam of 1968 are still in existence.
The Orissa Freedom of Religion Act 2 of 1968 prohibited forcible conversion. According to this act “no person shall convert or attempt to convert, either directly or otherwise, any person from one religious faith to another by the use of force or by inducement or by any fraudulent means nor shall any person abet any such conversion.”[4] Section 4 of the same act provides the punishment for contravention of the provisions of Section 3.
Conversion was defined as “renouncing one religion and adopting another.”[5] Force was defined as “a threat of injury of any kind including the threat of divine displeasure or social ex-communication.”[6] Fraud was defined as “misrepresentation or any other fraudulent contrivances.”[7] Inducement was defined as “the offer of any gift or gratification either in cash or in kind including the grant of any benefit, either pecuniary or otherwise.”[8]
Similarly Section 3 of the Madhya Pradesh Dharma Swatantraya Adhiniyam
of 1968 prohibits forcible conversion through the use of force, fraud, or allurement.
Allurement was defined as an offer of any temptation in the form of (a) any gift or gratification either in cash or kind; (b) grant of any material benefit, either monetary or otherwise.”[9]
Similar laws were adopted by the State of Arunachal Pradesh in the Freedom of Indigenous Faith Act of 1978.
The state of Tamil Nadu passed the Prohibition of Forcible Conversion of Religion Ordinance on October 5, 2002.[10] However, the legislature recently revoked it due to public outcry against it.
Another similar law was passed in Rajasthan in April 2006, which prohibited the use of allurement, force and fraudulent means to convert people. The law is applicable only in case of conversion from the original religion but does not include the cases of reconversion to the religion of one’s ancestors.”[11]
The State of Chhattisgarh passed a law in 2006 which required the official’s approval of any religious conversion. An amendment was added allowing Christians intending to reconvert to Hinduism to be exempted from the requirement. The governor did not sign the amendment, so it too is not in force.[12]
Constitutionality of Anti-Conversion Laws
The constitutionality of anti-conversion laws cannot be decided on the basis of the Article 25 only. Article 25 provides freedom of conscience and free profession, practice and propagation of religion. Article 25 can be interpreted to either allow or disallow anti-conversion laws. Courts have interpreted the Article 25 in different ways.
In a leading case of Rev. Stainislaus v. State of Madhya Pradesh[13], a Catholic priest (Father Stainislaus), who had been convicted of forcible conversion, challenged the Madhya Pradesh ant-conversion law on the basis that it was unconstitutional as the state legislature did not have the competence to pass the law.
The High Court (hereinafter HC) of Madhya Pradesh found the anti-conversion law unconstitutional. The case went to the Supreme Court (hereinafter SC) in an appeal and the Court observed that, “it has to be remembered that Article 25(1) guarantees freedom of conscience to every citizen, and not merely followers of one particular religion and that, in turn, postulates that there is no fundamental right to convert another person to one’s own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the freedom of conscience guaranteed to all the citizens of the country alike.[14]“
The court relied on Ratilal v. State of Bombay[15] for a distinction between conversion and propagation simply for the edification of others. It was observed that “whatever else might be said about these bills and their treatment by the SC, they at least present a constriction upon religion as constitutionally understood.[16]“
Conclusion
Anti-conversion laws should be enacted to prevent the forced conversion of people. These laws, therefore, are deemed to protect people from unethical conversions. Secondly, Article 25 should not be interpreted in a manner so that it would violate the people’s right to freedom of religion and conscience. Article 25 does provide the right to propagate religion but it does not provide any right to forceful conversions. The objective of Article 25 is to provide freedom of conscience and freedom of religion. The SC should take strong actions against these unconstitutional laws by interpreting Article 25 in its true and pure sense.
[1] James Andrew Huff, Religious Freedom in India and Analysis of the Constitutionality of Anti-Conversion Laws.
[2] Id.
[3] Jonathan K. Stubbs, Persuading Thy Neighbor to be as Thyself: Constitutional Limits on Evangelism in the United States and India, 12 UCLA Pac. Basin L.J.
[4] Section 3 of Orissa Freedom of Religion Act, 1967.
[5] Section 2(a) of Orissa Freedom of Religion Act, 1967.
[6] Section 2(b) of Orissa Freedom of Religion Act, 1967.
[7] Section 2(c) of Orissa Freedom of Religion Act, 1967.
[8] Section 2(d) of Orissa Freedom of Religion Act, 1967.
[9] Section 2(a) of Madhya Pradesh Dharma Swatantraya Adhiniyam
of 1968.
[10] Ecumenical & Interfaith Network – PCUSA, Religious Conversion, 2006.
[11] Anti Religious Conversion Bill in Indian State Hits Roadblock, DEUTSCHE PRESSE-AGENTUR,
May 20, 2006.
[12] Jmanes Andrew Huff, Religious Freedom in India and Analysis of the Constitutionality of Anti-Conversion Laws.
[13] A.I.R. 1977 S.C. 908.
[14] Rev. Stainislaus v. State of Madhya Pradesh, A.I.R. 1977 S.C. 908.
[15] A.I.R. 1954 S.C. 391
[16] Robert D. Baird, Traditional Values, Governmental Values, and Religious Conflict in
Contemporary India, 1998 BYU L. Rev. 337, 349-50 (1998).