By Mahak Vijay, Raffles University, Rajasthan.
Indian constitution provides for the freedom of religion in Article 25 and Article 26. A person has freedom to propagate and practice any religion. They also have freedom to manage their own religious affairs. Indian Penal Code also talks about the offences related to religion in Chapter XV. Sections 295 to 298 deals with offences related to religion. The Supreme Court expressed its opinion on the secular nature of the Constitution for the first time in Sardar Taheruddin Syedna Saheb v. State of Bombay[1] wherein Ayyangar, J., explained:
“Articles 25 and 26 embody the principle of religious toleration that has been the characteristic feature of Indian civilization from the start of history. Besides, they serve to emphasize the secular nature of the Indian democracy which the founding fathers considered to be the very basis of the Constitution.”
The first time that the Parliament took up this matter was in the year 1954. The Bill was called the Indian Conversion (Regulation and Registration bill). It was taken up again in the year 1960, but was dropped for lack of support and heavy opposition from minorities group and political parties. In 1978, an All India Freedom of Religion Bill was introduced in the Lok Sabha. It required compulsory licensing of missionaries and the registration of converts across India. However, it was never discussed, and was dropped after the then government fell in July 1979.[2]
Religion is a system of faith and worship of supernatural force which ordains, regulates and controls the destiny of human kinds. The Merriam Webster Dictionary defined, “Religion” as an organized system of faith and worship, a personal set of religious belief and practice, a cause, principle or belief held to with faith and order. Religious conversion is the adoption of a set of beliefs identified with one particular religious denomination to the exclusion of others.[3] The Caste Disabilities Removal Act, 1850, also Act XXI of 1850, was a law passed in British India under East India Company rule, which abolished all laws affecting the rights of persons converting to another religion or caste. Under ancient Hindu law, a person converting from Hinduism to another religion became ineligible for inheriting property from other family members. [4]
In 1968, Orissa and Madhya Pradesh enacted the Orissa Freedom of Religion Act and Madhya Pradesh Dharma Swatantraya Adhiniyam respectively. These laws were enacted to prevent conversion from one religious faith to another by the use of force or inducement or by fraudulent means. Later several other states like Tamil Nadu and Gujarat enacted similar laws under which forced conversions were made punishable under the Indian Penal Code. The punishment for forced conversions ranged from a three year jail term and fine of Rs 20000.[5]
Important Case laws:
In the case of Rev. Stainislaus vs. State of Madhya Pradesh & Ors[6], the issue before the court was whether the fundamental right to practice and propagate religion includes the right to convert?
The court held in clear terms that while Article 25(1) provides freedom of religion, the words “propagate religion” does not give the right to convert another person to one’s own religion, but to transmit or spread one’s religion by an exposition of its tenets. The Bench also observed that while propagating religion was allowed, converting does not form part of fundamental rights. What the Article grants is not the right to convert another person to one’s own religion, but to transmit or spread one’s religion by an exposition of its tenets.
In the Sarla Mudgal case[7] it was held that:
If a non-Muslim converts to Islam without any real change in belief, but merely to avoid an earlier marriage, he enters into a second marriage after conversion. Whether the marriage after conversion would be considered void and he can be held liable for bigamy?
The Supreme Court held that the conversion to Islam was not valid if done only in order to be able to practice polygamy. It was held to be an act of bigamy prohibited u/s 17 of Hindu Marriage Act, 1955, and punishable under Section 494 IPC. The second marriage would be void, the SC observed. This position was reaffirmed by the judgment in the Lilly Thomas case[8], which clarified that prosecution for bigamy was not a violation of the freedom of religion under Article 25.
In the Vilayat Raj case[9], the court said that if both parties were belonging Hindu faith at the time of marriage, provisions of the Hindu Marriage Act can apply even after one of them or both converted to Islam.
The case of Rabindra Kumar Pal @ Dara Singh Vs Republic of India[10], dealt with an appeal filed by Dara Singh, who was granted life sentence by the Orissa High Court for burning alive an Australian missionary Graham Staines and his two sons. The Court stated that “Dara Singh’s intention was to teach a lesson to Graham Staines about his religious activities, namely, converting poor tribal people to Christianity,” It upheld life sentence for Dara Singh, but used the opportunity to issue a devastating critique of conversion attempts. The Supreme Court in 2011 held that conversion from one religion to another had no justification in “secular” India as it amounted to interference in religious belief. The Court further stated:
“We hope Mahatma Gandhi’s vision of religion playing a positive role in bringing religions and communities together into an integrated prosperous nation will be realized. There is no justification for interfering in someone’s belief through force, conversion or false premise that one religion is better than the other,” the court noted. The Bench felt that conversion violated the secular spirit of the Constitution. It said, “It is undisputed that there is no justification for interfering in someone’s belief by way of ‘use of force’, provocation, conversion, incitement, or upon a flawed premise that one religion is better than the other.”
Quoting former President K.R. Narayanan, “Indian unity is based on a tradition of tolerance, which is at once a pragmatic concept for living together and a philosophical concept of finding truth and goodness in every religion”.[11]
In a recent case of K. P. Manu v Chairman, Scrutiny Committee for Verification of Community Certificate, [12]an appeal was filed by KP Manu who had reconverted to Hinduism and got a caste certificate. However, a scrutiny committee, set up under the Kerala (Scheduled Castes and Scheduled Tribes) Regulation of Issue of Community Certificates Act cancelled his certificate because he was born to Christian parents.
In its ruling, the Supreme Court cited the need for a solid proof that the person belonged to Scheduled Caste and said that such a person is eligible for benefits even if his parents have converted to Christianity as long as there is enough proof that his grandparents or forefathers belonged to the community. The bench, comprising of Justices Dipak Misra and V Gopala Gowda, cited the Mandal Commission report, the Chinappa Commission report and articles by Dr. BR Ambedkar and James Massey. The bench also said that if accepted by their community, even marriage to a Christian will not deprive the person of this status.
Mandal Commission report of the Backward Classes Commission 1980, speaking about the Indian Christians in Kerala had expressed:[13]
“Christians in Kerala are divided into various denominations on the basis of beliefs and rituals and into various ethnic groups on the basis of their caste background…. even after conversion, the lower caste converts were continued to be treated as Harijans by all sections of the society , even though with conversion the former ceased to be Harijans and untouchables lower caste converts to a very egalitarian religion like Christianity, ever anxious to expand its membership, even after generations were not able to efface the effect of their caste background.”
In the article, namely, “Dalits in India” by James Massey, Dr. B.R. Ambedkar, as is reflected from the said article, has devoted two long essays on the subject under the title “Christianising the Untouchables” and “The Condition of the Convert”. Speaking about the general conditions of Christians Dalits, Ambedkar had put a direct challenge by saying: “It is necessary to bear in mind that Indian Christians are drawn chiefly from the Untouchables (Dalits) and, to a much less extent from low ranking Shudra castes. The social services of Missions must therefore be judged in the light of the needs of these classes. What are those needs? The services rendered by the Missions in the fields of education and medical relief are beyond the ken of the Indian Christians. They go mostly to benefit the high caste Hindu.”[14]
A person who converts back to Hinduism from Christianity shall be eligible for reservation under Scheduled Caste if their ancestors belonged to such a caste, the Supreme Court bench ruled on, the case. The bench said that this is subject to the community accepting the person after he/she has converted back.
So a Dalit Christian or Muslim converting to Hinduism will be entitled to reservation benefits as long as it can be proved that his ancestors belonged to a caste categorized as a Scheduled Caste. In these times of “ghar wapsi” this new judgment puts a formal judicial seal on the concept of “reconversion” This builds on an earlier judgment Guntur Medical College versus Y. Mohan Rao[15], which held that a person need not be born a Hindu to get Scheduled Caste status. If his Dalit parents had converted out of Hinduism, he still legally regains the caste of his parents if and when he converts to Hinduism. The Mohan Rao verdict, however, set the limit at one generation. The parents had to have been Hindus once for the child to be eligible for Scheduled Caste benefits. Now scheduled caste benefits can be gained no matter how many generations back the Dalit ancestors left Hinduism, as long as the caste can be verified.
The Supreme Court bench laid down three main parameters for deciding whether a person who had reconverted to Hinduism from another religion embraced earlier was eligible to get the government benefits Dalit and tribal Hindus are entitled to. There must be “absolutely clear-cut proof that he belongs to the caste that has been recognised by the Constitution (Scheduled Castes) Order, 1950″. Second, it has to be established that there has been “re-conversion to the original religion to which the (person’s) parents and earlier generations had belonged”. And, third, there has to be “evidence establishing the acceptance by the community”.
The judgement does indeed seem to legitimize ‘Ghar Wapsi’. Urban Dalits mostly convert in the expectation of social emancipation that comes with education in and social use of the English language. Many people convert to Christianity because of the oppressive caste system prevailing in the majority community and for social mobility than faith per se. One hardly sees a convert from higher castes. This order only proves the fact with the conversion of a Scheduled caste & tribe people to Christianity will not improve their socio economic condition.
So we can see that through this order, a person who converts back to Hinduism from Christianity shall be eligible for reservation under Scheduled Caste if their ancestors belonged to such a caste so it will definitely support ghar wapsi. This will definitely favor the persons who were forcefully or deceived to convert their religion. So now they will enjoy the benefit of reservation due to their forefather’s caste. If they want to reconvert in their original caste they can do so without losing the benefits of reservations.
[1] AIR 1962 SC 853, 871. It is known as ‘the Ex-communication case’. The genesis of such views can be traced to earlier decisions like Nain Sukh Das v. State of U.P., AIR 1953 SC 384 wherein it was held that constitutional mandate against religious discrimination extends to political rights.
[2] The Indian Express,. (2014). Explained: QUESTION OF CONVERSION. Retrieved 25 March 2015, from http://indianexpress.com/article/india/india-others/explained-question-of-conversion/
[3] Legalserviceindia.com,. (2015). Constitution – Right to freedom of Religion vs Religious Conversion – Author – Deepak Miglani & Dinesh Miglani. Retrieved 25 March 2015, from http://www.legalserviceindia.com/articles/rel_rel.htm
[4]Ljcp.gov.pk,. (2015). Retrieved 26 March 2015, from http://www.ljcp.gov.pk/Menu%20Items/Publications/Reports%20of%20the%20LJCP/reports/73-89/85.doc
[5] www.oneindia.com,. (2014). Explained: The law on religious conversions in India. Retrieved 25 March 2015, from http://www.oneindia.com/feature/explained-the-law-of-religious-conversions-1588671.html
[6] 1977 AIR SC 908
[7] AIR 1995 SC 1531
[8] 2000 (6) SCC 224
[9] AIR 1983 Delhi 351
[10] CRIMINAL APPEAL NO. 1366 OF 2005
[11] Bharata Bharati,. (2011). Religious conversion has no justification, says Indian Supreme Court. Retrieved 25 March 2015, from https://bharatabharati.wordpress.com/2011/01/29/religious-conversion-has-no-justification-says-indian-supreme-court/
[12] 2015 Indlaw SC 147
[13] ibid
[14] ibid
[15] 1976 AIR 1904