Published on 23 Dec, 2014
By - SUHRITH PARTHASARATHY
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.”
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.
(Suhrith Parthasarathy is an advocate in the Madras High Court.)
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