Home truths about home comings

For ten vociferous years, strident Hindutva activists complained bitterly that their brothers were converting to other religions, mainly Christianity. Six states tried to stem this purported tide by legislating against religious conversion. With the change of political dispensation in Delhi last summer, those who complained about conversions commenced conniving with conversions and "Ghar Wapsi" while those who connived with conversion started complaining. Activists now demand that the Prime Minister take a public position on it. Opposition spokesmen dare the government to come out with a national law against conversion. What's going on?

The short answer undoubtedly is that God makes good politics. No one knows it better than Atal Bihari Bajpayee who made Prime Minister riding on the back of some mosque busting by religious frontliners in Uttar Pradesh. Religion inevitably consolidates votes on either side of every political fault line, but it profits both sides. Historically speaking, religions have achieved mass traction only after they have received state patronage, good examples being Emperor Constantine and Christianity in Europe, Emperor Ashoka and Buddhism in India, and the Soud family and Mohammad Ibn Al-Wahhab for the Wahhabi school of Islam in the Middle East. For the same reason, every major political party has used anti-conversion as an electoral whipping boy at one point or another: the BJP in Gujarat amongst others, the Congress in Himachal Pradesh. The key question that needs answering though is this: where does that leave Article 25 of the Constitution of India which provides: 

"Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion."

When freedom to profess, practice and propagate is constitutionally guaranteed, how are we even competent to make laws preventing conversion? That takes us to the long answer on what's going on. Let's look at the laws that have been created.

First up, we had the Orissa law way back in 1967. It prohibits 'forcible conversion', either directly or indirectly, using force, inducement and fraud. Force for your kind information includes 'threats of divine displeasure'. Inducement by the way also includes offers of any gratification in cash or in kind, and the grant of any benefit, either pecuniary or otherwise. That pretty much set the stage for the following year's law in Madhya Pradesh which replicated the Orissa law, more or less. It took Arunachal a decade to make a third of a perfect initial pair when in 1978, they legislated their own freedom of religion,  again following Orissa closely. There the matter rested for the next 25 years. 

In the dying years of the National Democratic Alliance, when voters were again encouraged to find their religious eternal truths through the usual hate mongering, Gujarat set up its own law in 2003. It wasn't that far off the Orissa model. 'Inducement' now became 'allurement' defined as offer of any temptation in the form of gift or gratification (in cash or kind) or grant of any material benefit (either monetary or otherwise). Divine displeasure continued as an illegal force. Three years later, Himachal Pradesh and Chhattisgarh both joined the conversion brigade, creating laws along the same lines.

Over the years, the courts have had several occasions to rule on the legality of such laws. Stanislaus v. State of Madhya Pradesh [Air 1977 SC 908] is a good example of judicial thinking on it. In this case, two appeals came up together before the Supreme Court. In the first, the Madhya Pradesh government sanctioned the prosecution of Reverend Stanislaus for violation of the law. He claimed that in prosecuting him, the law violated Article 25. The High Court held that such laws "establishthe equality of religiousfreedom for all citizens by prohibiting conversion by objectionable activities such as conversion by force, fraud and by allurement". In the second case, the Orissa High Court went the other way where priests were prosecuted for 'evangelisation leading to conversion of persons belonging to other faiths by and/or through preaching exhortation'.

The Supreme Court ruled against Orissa. It took the view that Article 25(1) guarantees 'freedom of conscience' to every citizen, and not merely to the followers of one particular religion. It found that there exists no fundamental right to convert others, because that would impinge on other persons' 'freedom of conscience'.

This view has been challenged several times since. Twenty Five years after Stanislaus, in Satya Ranjan Majhi and Anr. v State of Orissa [(2003)7SCC 439],  members of the Christian Community challenged the legality of the Orissa law because they wanted the unfettered ability to convert others. The court did not agree. Again in 2014, the law was challenged afresh in Digbijaya Missal v. State of Orissa [MANU/OR/0360/2014] when the rules framed under the law came under attack. These rules provide that anyone who wishes to convert has to declare that he is doing it of his own will before a Magistrate. Meanwhile, the Priest doing the converting has to inform the District Magistrate fifteen days in advance. In turn, the District Magistrate must inform the concerned Superintendent of Police who will "ascertain objection, if any, to the proposed conversion by a local inquiry and intimate the same to the District Magistrate". The Petitioners argued that these rules were obstructive and demeaning. The court did not agree. It took the view that these rules are precautionary in that they ensure that the renouncement of one religion and the adoption of another is genuine, voluntary and free from inducement, coercion and fraud.

In the same vein are cases under the general law of the land where the motives for conversion are not quite that spiritually uplifted. In Sarla Mudgal and Ors. V. Union of India [AIR 1995 SC 1531], the court ruled that a Hindu man could not convert to Islam so that he could marry again without obtaining a divorce from the first wife. In M Chandra v. M. Thangamathu & Anr [(2010) 9 SCC .712], an electoral candidate was  born a scheduled caste, raised a Christian, reconverted in an Arya Semaj temple to Hinduism and then stood for election to the Legislative Assembly for a scheduled caste reserved constituency. The election was challenged on the ground that the appellant was Christian, not a schedule caste Hindu. The court turned down the challenge, ruling that to prove conversion; two elements needed to be satisfied: that a conversion event took place, and that the community to which that person converted accepted the conversion. The candidate met both tests and her election was upheld.

Which brings us to the curious case of Sardar Syedna Taher Saifuddin Saheb v State of Bombay [AIR 1962 SC 853], triggered by the enactment of the Bombay Prevention of Excommunication Act, 1949. Among those who successfully run a tight community ship are the Dawoodi Bohras whose Dai-ul-Mutlaq is entitled to excommunicate any member of the community for an offence which, according to his religious sensibilities, justified expulsion. It's an unguided discretionary power, its impact difficult to fathom for those who do not belong to a close knit insular community. The Syedna challenged the law, claiming it violated his Article 25 right. The court was sympathetic. Banning excommunication may promote social reform, it agreed, but may not promote social welfare. In the end, the court struck down the law because the ban was too absolute. If excommunication was a part of Bohra religion, banning it was interfering with religious freedom.

At one level, this decision is way off the curve. The freedom to practice my religion must include the freedom to practice it as I please, while living the life that I please, rather than the manner in which the priest prescribes it. Excommunicating me because I don't live my life or practice my religion by the priest's prescription violates any number of my other fundamental rights. The court took the line that if tradition has allowed members of a religious community to be excommunicated, excommunication is a part of their religion, and protected under Article 25. I cannot but disagree. Tradition is a cunning cur, undermining social justice in many ways, which is after all the law's main business. I can do no better than direct attention to the Hindu 'tradition' of excluding some people from the village water well and burning widows. How far back do you wish to go to find your 'tradition'? Where does religion as a spiritual quest end and the politics of religious organisation begin? To me, the line is very clear. The court has failed to identify that line, leave alone draw it.

This brings us back to our right under Article 25 to propagate our religion. On the face of it, if I am free to propagate my religion, sooner or later, someone will agree with me. Now, if you say I have the right to propagate but not the right to convert, you are really saying that I can propagate till my teeth rattle and fall off but if I succeed, I am breaking the law! That is not only illogical: that is silly. It's also only the beginning of the fundamental flaw in the anti-conversion law construct. 

The crux of the difficulty with the anti-conversion law construct comes down to this confounding animal called inducement or allurement. Inducement and allurement, in this world or the next, are at the heart of every religion. Religions are nothing if they are not bargains with divinity. A lot of it is material benefit of the type we actively seek on Diwali. There are also non-pecuniary benefits such as 72 gazelle-eyed women in paradise, or a freedom-from-pain benefit as in Buddhism. What remains after the benefits is the fear of divinity. In that category of fear are thunderbolts from Thor and Satanic rendezvous in hell. What chance of success would you give to a religion that is by law required to offer no value proposition? So, when we talk about religious conversion, there is going to be no sale unless there is a perception of enhanced benefit. Indeed, if there is no perception of benefit, there is going to be no customer for any religion at all. If I didn't stand a better chance to improve my lot, in this life or the next, or in the life after life, if life it is, why would I bother to convert, or practice any religion at all? It strikes me as perfectly obvious that the moment you ban conversion motivated by benefit, you absolutely ban all conversion. That shoots my Article 25 right to practice a religion of my choosing squarely in the gut.

Ranjeev C. Dubey, Advocate
Managing Partner
N South Advocates
www.nsouthlaw.c
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Ranjeev C. Dubey 
on 23 January 2015
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