While organised events of conversion can incite violence and hatred,
the enforcement of a national anti-conversion law, as some advocate, is
not the panacea. Besides inflicting greater damage, it would render our
rights to freedom of conscience and religion valueless, and derail
efforts at achieving a peaceful, democratic society
One of the oft-repeated theories in the wake of the general election
this past May was that Prime Minister Narendra Modi assumed power by
presenting a single-minded commitment to developing
India’s economy. In
truth, campaigns, in many parts of the country, were intensely divisive
affairs. Many of those who canvassed for votes, and who have since been
accorded important positions in the ruling party, often trod
treacherously beyond communal boundaries. This dissonance, which was
inherent in the attitude of the Bharatiya Janata Party (BJP) towards the
election, has now grown further, and it increasingly appears that the
government is incapable of deviating from what is quite plausibly its
real agenda.
As much as Mr. Modi would like us to believe that it is his plank of a
developmental model that continues to hold the primary sway in his
policies, his stark reticence in dealing with the acrimonious practices
of the BJP’s allied groups seems to paint a different picture. The
state, under the BJP, is slowly progressing towards more pervasive
involvement in matters of ethical choice such as religion. And, the
Sangh Parivar has only been emboldened by the attitude of the new
regime. Week after week, its agenda of Hindutva has seen the imposition
of new and stridently discordant measures. The latest salvo involves the
organisation of programmes of “Ghar Vapsi,” for the conversion (or “reconversion” as the Hindu Right would have it) of Muslims and Christians to Hinduism.
The right wing and conversion
The Dharam Jagaran Samiti (DJS) — an offshoot of the Rashtriya
Swayamsevak Sangh (RSS) and the Bajrang Dal — only recently announced
that it aims to meet a target of converting one lakh Muslims and
Christians into Hinduism every year. Earlier this month in Agra, the DJS
reportedly converted some 200-odd Muslims to Hinduism. The event came
to light after the supposed converts, many of who are among the most
impoverished sections of the society, alleged that they had been misled
into believing that they would be offered Below Poverty Line cards by
consenting to the conversion. In spite of these contentions, the Sangh
Parivar remains unmoved in its agenda. According to a report on the
website Scroll.in, the Vishwa Hindu Parishad (VHP) has already
made plans to mark the 50th anniversary of the group’s founding on
February 6 with a Ghar Vapsi in Faizabad next year. Making matters worse, the VHP has claimed, as The Hindu
reported, that those Muslims or Christians who reconvert to Hinduism in
such programmes would be allowed to choose a caste for themselves once
the VHP has investigated the tradition, faith, and culture of the
convert’s ancestors.
The Ghar Vapsi programmes organised as they are by the Sangh
Parivar are an attempted show of strength. They seek the state’s
connivance in administering a terrifying form of majoritarianism. But,
when we respond to these organised events of conversion, it is crucially
important that we view them in the right light. The programmes no doubt
carry enormous potential to incite violence and hatred between
communities; they are immoral, wicked and capable of producing dire
consequences. To that end, we must certainly impose responsibility on
the state to curb the creation of an even more fractured society. But we
must not see the enforcement of a national anti-conversion law, as some
have, as the panacea. Such legislation can produce even greater damage;
it would render nugatory our rights to freedom of conscience and
religion, and in the process, it would scuttle any genuine attempts at
achieving a peaceful, democratic society.
Indeed, the BJP has already been quick to take advantage of the clamour
for an anti-conversion legislation. In reacting to rhetorical pressure
from the Opposition in both Houses of Parliament, the Union
Parliamentary Affairs Minister, M. Venkaiah Naidu, suggested precisely
such a law as a solution for the present unrest. Yogi Adityanath, the
BJP member of the Lok Sabha for the Gorakhpur constituency, who is a
star attraction for the Hindu Right in Ghar Vapsi events, has already fuelled the fire. “This (Ghar Vapsi)
has been happening for ages. It is an ongoing process and it will
continue to happen,” he told reporters after the recent event in Agra.
“If the Uttar Pradesh Government feels the reconversion programme is
wrong then the way the State governments of Madhya Pradesh, Odisha,
Rajasthan, Himachal Pradesh and Gujarat have a law ... a similar
legislation should be made in U.P.” He further sought to place the
Opposition in an exacting conundrum. If parties feel there should be a
law against conversion, he said, “why don’t they support the move of
having such a law?”
Intuitively, Mr. Adityanath’s comments — sans the divisiveness — even
appear logical. A law banning the use of coercion in seeking religious
conversion seems to be in consonance with general principles of a
democratic society. However, our experience with such legislation — as
can be gathered from the impact of such statutes in Madhya Pradesh and
Gujarat — shows us that these laws would inevitably be fraught with
interpretive maladies that often strike at the root of our right to
religious freedom. What’s more, a legislation of such a nature would be
simply unenforceable without applying a duplicitous standard of
statutory construal. The better choice, in these circumstances, is to
prosecute illegitimate acts of force and coercion, which evoke genuine
sentiments of communal hate, through the general operation of the penal
law aimed at maintaining public order, while leaving conversions largely
unmonitored.
Restricting religious liberty
The illiberal trappings of an anti-conversion law, however, do contain a
rare appeal. In fact, the Supreme Court of India has taken a kind
viewing towards such laws. In 1977, in Rev. Stainislaus v. State of Madhya Pradesh,
(AIR 1977 SC 908), a five-judge bench of the court delivered a verdict
on the constitutional validity of two of the earliest pieces of
anti-conversion legislation in India: the Madhya Pradesh Dharma
Swatantraya Adhiniyam, 1968, and the Orissa Freedom of Religion Act,
1967, both of which, with no small dash of irony, restrict, as opposed
to promote, religious liberty.
The two statutes are akin in that they both envisage intimation to the
District Magistrate every time a conversion takes place, and in that
they both prohibit — and impose criminal liability on — conversion or
attempt to conversion by the use of force or by inducement (allurement,
in the case of the Madhya Pradesh law) or by any other fraudulent means.
The definitions prescribed for these terms however are decidedly vague,
capricious, and prone to causing substantial harm. The Orissa law, for
example, defines force, inclusively, to mean “a show of force or a
threat for injury of any kind including threat of divine displeasure or
social excommunication.” And inducement is defined even wider, to
include “the offer of any gift or gratification, either in cash or in
kind,” including “the grant of any benefit, either pecuniary or
otherwise.”
Interpreting Article 25
In upholding these laws, Chief Justice A.N. Ray, who delivered the
judgment, adopted a muddled approach to interpreting Article 25 of the
Constitution. Article 25 states that subject to public order, morality
and health, and to the other fundamental rights guaranteed in the
Constitution, all persons are equally entitled to “freedom of conscience
and the right freely to profess, practise and propagate religion.”
Justice Ray interpreted the word “propagate,” to mean “to transmit or
spread one’s religion by an exposition of its tenets,” but to not
include the right to convert another person to one’s own religion. “It
has to be remembered that Article 25(1) guarantees ‘freedom of
conscience’ to every citizen, and not merely to the followers of one
particular religion,” wrote Justice Ray, “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.”
“If a person’s right to propagate his religion does not include
a right to freedom of speech aimed at seeking conversions, would not such a right be purely illusory ”
Justice Ray’s reasoning, however, clearly conflates the issue. If a
person’s right to propagate his religion does not include a right to
freedom of speech aimed at seeking conversions, would not such a right
be purely illusory? As the constitutional law scholar, H.M. Seervai,
observed, in response to the decision in Stainislaus, “to
propagate religion is not to impart knowledge and to spread it more
widely, but to produce intellectual and moral conviction leading to
action, namely, the adoption of that religion. Successful propagation of
religion would result in conversion.” Therefore, when a person converts
to another religion, based on speech, which aims at producing such
conversion, he or she is, in fact, exercising a general right to freedom
of conscience.
In confusing a person’s liberty to exercise free conscience for another
person’s right to propagate religion, Justice Ray’s verdict produced
damaging results. A conclusion that propagation ought to be restricted
only to the edification of religious tenets is a reasoning that
gratifies the interests of the majority, and the majority alone. Or, as
Mr. Seervai observed, “it is productive of the greatest public
mischief.”
In the decades that have followed Stainislaus, the Madhya Pradesh
and Orissa laws — and similar legislation enacted in Gujarat, Rajasthan
and Himachal Pradesh — have been used by State governments to target
conversions to minority religions, in particular, upsetting, thereby
even the most basic commitment to secularism.
The decision in Stainislaus is however incorrect not merely due
to its tangible consequences. The case relates to a fundamental, and
more nuanced, issue of intervention by the state — and its courts — in
religious affairs. Anti-conversion laws allow the state the authority to
determine what constitutes an illegitimate inducement, and, in doing
so, they create a slippery slope. They promote increased governmental
involvement in matters that involve pure ethical choices, and they
ingrain a deep and dangerous form of paternalism: the state is always
watching you, and it has nothing but your best interests in mind. This
ought to be a matter of grave concern.
