Anti-Conversion Laws: Challenges to Secularism and Fundamental Rights

Author(s): South Asia Human Rights Documentation Centre

Source: Economic and Political Weekly, Vol. 43, No. 2 (Jan. 12 - 18, 2008), pp. 63-69, 71-73
Published by: Economic and Political Weekly
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HJ^MJiT^ïffT^^^^^^^^^^M-LE

Anti-Conversion Laws: Challen

and Fundamental Rights

SOUTH ASIA HUMAN RIGHTS DOCUMENTATION CENTRE

Anti-conversion legislations, euphemistically calledDecember 19, 2006, the state legislative assembly
Himachal Pradesh passed the Himachal Pradesh Fre
Freedom of Religion laws, adopted by several Indian
dom of Religion Bill 2006. The state government claime
states have been the subject of much scrutiny. An
it was intended to prevent religious "conversions" carried out
analysis of the legislations reveals that the language
the use of force or inducement or by fraudulent means.1 Pas
into
used is often extraordinarily broad and vague, law'on February 18, 2007, the act is modelled on exist
posing
anti-conversion laws in other Indian states. Its adoption is par
serious challenges to religious freedom as guaranteed
cularly ironic in view of the fact that the state government is
by the Indian Constitution and enshrined in international
by the Congress Party, which has consistently sought to highl
human rights instruments. its "secular" credentials.

Other states with acts of the same nature include Orissa,2 Madhya
Pradesh,3 Chhattisgarh,4 Arunachal Pradesh5 and Gujarat.6 Of
these, Orissa and Madhya Pradesh have gone on to frame rules
under their respective acts, while the Himachal Pradesh cabinet
recently gave its approval to this exercise.7 The state of Chhattis-
garh, formed in 2000, inherited Madhya Pradesh's act and rules,
and passed an amendment in 2006.8 Earlier in 2006, the state legis-
lature of Rajasthan passed the Rajasthan Freedom of Religion Bill
2006 but assent to the bill was withheld by the then state governor,
Pratibha Patii. After having languished for a year, the Rajasthan
bill was forwarded in June 2007 by Patii to the then president,
A P J Abdul Kalam, for his approval.9 A similar law was repealed in
2004 in Tamil Nadu, while one is expected in Jharkhand.i0

1 Imprecise and Uncertain Terminology

There is undoubtedly no ground to justify conversions brought
about by violence or other equally illegitimate means of coercion.
These violate the principle of freedom of conscience guaranteed
by the Indian Constitution and prescribed in international
human rights norms. However, the language adopted by the anti-
conversion legislations11 goes far beyond the protection of this
right, and indeed, in no way appears to be motivated by the
desire to protect the freedom of conscience. Instead, the danger
of "discriminatory abuse in their application" is very real.12 The
terminology used by these legislations transforms them from
their purported role as protectors of constitutional rights into
violators of these very guarantees.
An examination of these legislations becomes imperative as
India continues to struggle with its constitutional mandate of
secularism in an environment of inter-religious tension.

1.1 The Definition of Conversion

The South Asia Human Rights Documentation Centre The definition of conversion within the Himachal Pradesh, Orissa,
(hrdc_online@hotmailcom) researches and analyses human rights
Madhya Pradesh and Chhattisgarh acts is as follows: " 'Conver-
issues and trends.
sion' means renouncing one religion and adopting another".13

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 SPECIAL ARTICLE EEEEEE

TheSupporters of anti-
wor conversion legislation argue that these laws
are intended to prohibit conversions
that: " or attempted conversions
'C
andthat are effectuated
adop by force, inducement or fraud. They argue
A that as present instances of such conversions are high, these laws
recent
are designed to criminalise such activities.25 Anti-conversion
definitio
laws are therefore presented as necessary safeguards for the pro-
another
Kishore
tection of religious freedom, a right guaranteed both constitu-
tionally and in international human rights instruments.
legislatu
"stipula
Critics however contend that the laws are motivated by an in-
denomin
secure pro-Hindu nationalism that is antagonistic to religious mi-
Muslim
norities. Particularly objectionable is the broad language used by
the laws, which creates uncertainty about which activities are
religion"
hadprohibited and fosters
been concerns that government officials may
take advantage of the loose terminology to discriminate
ment's a against
It is
religious minorities. int
Both supporters and opponents of the anti-conversion laws use
Arunach
the preservation of religious freedom as justification
cludes r for their
the positions. term
This debate assumes more significance when placed
in the context of contemporary instances of religiously
denning
motivated violence.
adopting
tion th
1.3 The Definition of Force
forefathe

Paralleli
All the legislations share a common definition of the term "force"
convers
with reference to forced conversions, stating that: " 'Force' shall
include show of force or threat of injury or threat of divine
another
been def
displeasure or social ex-communication".26
It is uncertain how this definition will operate
rites, ri in practice. For
example, if a religion teaches that non-adherents risk divine dis-
customs
thepleasure (as indig
with Christianity, Islam and Judaism), the act of im-
these com
parting this article of faith may constitute an act of force under
anti- conversion legislation. This has problematic ramifications
Similarl
to on the freedom to change religion as discussed later in this
one's
thearticle. As eminentdef
legal scholar H M Seervai pointed out in his
E S discussion L
of the right to propagate, "[a]Na
person cannot choose if
to he does not know what choices are open to him (sic)".27
the clThe overly
the distr
broad definition of force unjustifiably impinges on interactions
between potential converts and those seeking to bring
Given t about
their conversion. The latter are
cent of rendered unable to inform the
former of what their religion teaches about non-adherents, limit-
"religion
ing the information that can be made available
cases. Th to the potential
legislati
convert and thereby impinging on the meaningful exercise of his
sions,
or her freedom to change religion. th
Hinduism
1.4 Allurement and Inducement
1.2 The Prohibition of Conversion
According to the Rajasthan bill " '[a]llurement' means offer of
All of the current anti-conversion legislations prohibit actstemptation
of con- in the form of (1) any gift or gratification, either
cash or in kind; (2) grant of any material benefit, either monet
version in the following terms: "No person shall convert or attempt
orreli-
to convert, either directly or otherwise, any person from one otherwise".28 The Madhya Pradesh, Chhattisgarh and Guja
gion to another by use of force or by inducement or by anyacts rely on an identical definition of allurement.29
fraudu-
The Himachal Pradesh, Orissa and Arunachal Pradesh acts,
lent means, nor shall any person abet any such conversion".23
contrast,
Political supporters of this legislative prohibition include the rely on the term inducement: "[Inducement shall
Hindu nationalist Bharatiya Janata Party (b jp), the Vishwa Hindu
clude the offer of any gift or gratification, either in cash or in k
Parishad (vhp), and the Rashtriya Swayamsevak Sangh (rss)
and - also include the grant of any benefit, either pecunia
shall
orSingh
collectively the "Sangh parivar". The bjp president Rajnath otherwise".30
Problems
has gone so far as to instruct all bjp -led state governments to with this latter definition were noted by the hi
pass such laws in their territories.24 court of Orissa in Yulitha Hyde vs State of Orissa,31 where it w

64 January 12, 2008 Economic & Political weekly

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 - -

held maybe associated

to with religious practice; (b) providingim
for social wel-
fare and reform or the throwing open of Hindu religious institutions of
by reason
a public character to all classes and sections of Hindus.
sion was, h
Explanation I - The wearing and carrying of kirpans shall be deemed
in Stainisla
to be included in the profession of the Sikh religion.
the validit
Explanation II - In sub-clause (b) of clause (2), the reference to Hindus
shall be construed as including a reference to persons professing the
Problems
Sikh, Jaina or Buddhist religion, and the reference to Hindu religious
less remai
institutions shall be construed accordingly.
gious tradi
of its
In interpreting the scope of thisadh
constitutional protection of re-
ligious freedom, the Supreme
gious belie Court has sought to clarify that
while an individual's "religious beliefs are entirely
cilities or his own and
his freedom to hold those beliefs is absolute, he has not the right
interpret
to act in any way he pleased [sic]
These defi in the exercise of his religious
beliefs". 37 In terms of constitutional protection, therefore, the
activities r
Withcourt has drawn a clear distinction
littl between the freedom to hold
religious beliefs, onin
aries the one hand, and the freedom to manifest
di
these beliefs on the other. The former falls squarely within the
versions,
ambit of Article 25's protection, and
others toconsequently, "no one can... t
no be compelled, against his own judgment and belief, to hold any
matte
of particular creed or follow a set of religious practices.... a person
religion
is left completely free to worship God according to the dictates of
1.5 The Definition of Fraud his conscience".38 The latter freedom, however, i e, the right to
practise and propagate religion, is subject to constitutional limi-
The Rajasthan bill and Gujarat act state that " '[fraudulent'
tations enumerated in Article 25 itself.
means and includes misrepresentation or any other fraudulent
contrivance".33 The Himachal Pradesh, Orissa, Madhya Pradesh, Any statutory restrictions on the right to practise and propa-
gate one's religion can therefore be imposed only on grounds of
Arunachal Pradesh and Chhattisgarh acts state: "[flraud shall
public order, morality and health (as permitted by Article 25(1)),
include misrepresentation or any other fraudulent contrivance".34
Once more, the imprecision of this definition is apparent. To or must seek to regulate secular activity associated with religious
take an extreme example, if an individual was told he/she wouldpractice or to advance social welfare and reform (as permitted by
Articles 2s(2)(a) and (b) respectively).
feel closer to god upon conversion and if the converted person
did not subsequently experience this degree of spirituality, would
this constitute "misrepresentation"? These legislations provide
2.1 The Stainislaus Judgment

no guidance as to how such a term should be understood. The 1977 Supreme Court judgment of Rev Stainislaus vs State of
Madhya Pradesh,39 which decided the constitutional validity of
Additionally, the ambiguity of the definitions leaves a high de-
the Madhya Pradesh and Orissa anti- conversion legislations,
gree of discretion to government officials to determine what ac-
tions are prohibited and which individuals will be targeted. remains the key judicial pronouncement on the validity of anti-
Drawing a dividing line between legitimate and illegitimate con-conversion laws.
version efforts, between "bearing witness", on the one hand, and Stainislaus arose in the backdrop of appeals against divergent
"improper proselytism" on the other35 is, a difficult task, asjudgments
a from the high courts of Orissa40 and Madhya Pradesh41
on
range of interests and rights are involved. The failure of the anti- the validity of the anti-conversion laws of those states. Both
conversion legislations to maintain this distinction results incourts dealt with similar challenges to the constitutionality of
these laws, which had contended a violation of Article 25 as well
blanket prohibitions on conversion per se, which in turn severely
and unjustifiably curtail the rights discussed below. as a lack of legislative competence of the concerned state govern-
ments in enacting them (since religion is not a subject on the state
2 Scope of Constitutional Protection list, i e, states cannot legislate on the issue, only the central gov-
ernment can). While both courts upheld their respective legisla-
The Right to Freedom of Religion is guaranteed by Article 25 of
the Constitution of India which broadly parallels Article 18 of prohibitions against conversions by means of force and fraud,
tive
the Universal Declaration of Human Rights 1948 (udhr).36 Itsthe high court of Madhya Pradesh also upheld the prohibition of
relevant provisions read as follows: conversion by "allurement" since it sought to guarantee equality

Article 25. Freedom of conscience and free profession, practice and of religious freedom.42 In contrast, the high court of Orissa estab-
lished
propagation of religion. (1) Subject to public order, morality and health the right to convert as a component of religiQUS freedom as
and to the other provisions of this Part, all persons are equally entitled
guaranteed by the Constitution and held that the equivalent term
to freedom of conscience and the right freely to profess, practise and of inducement (as used in Section 2(d) of the Orissa Freedom of
propagate religion.
Religion Act) was too vague. It was therefore capable of interfer-
(2) Nothing in this article shall affect the operation of any existing law
or prevent the State from making any law - (a) regulating or restrict-
ing with several legitimate proselytising activities protected by
Article 25(1) and was liable to be struck down.43 Further, while
ing any economic, financial, political or other secular activity which

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Special article - ^

the Orissa
alway
follow
tence, the
of utilise
the stat
fall religi
within
on the stat
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Stainisl
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While
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such
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one but
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lations enf
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turbs the
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affect an i
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religio
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the consci
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to be valid
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maintain p
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3 Muslim
Analysi
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As
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and 26,
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secular de
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anoth
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Swamiar,49
essential
bly pa
h
Rohin
erence to t
has also fa
hibiti
nity religi
in de
Tilkayat
tion S
t
religi
stated that
givenother
relig
66 Janu

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- SPECIAL ARTICLE

Pandit Lakshmi
extent Kan
of ca
degree pf d
If we are to restore ou
in a locality
of the utmost
a importa
breach of
honestly feel and bel
disturbance
seeking converts by f
why should obstacles s
This distin
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breaches of
It is In Pushkar
important to n
that any Court to
right state
con
Article 19.
The
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taken to "see
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to no
affec
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attempt is In
m
have masstween serio
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Finally, Munshi asse
been Resolving
included in the
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long as of
reli
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Disorder is t
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penings. Doe
therefore appears f
order or on
debates that firstly,
order" from
to benefit members
all of them
freedom of religion
Every breac
Article 25, safegu
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would t
n
In light minor
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br
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proceeded and
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r
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3.3 The Concept
against o
the
In innocent
utilising the p
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Pradesh aim
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Oriss
maintain
precedents like p
Rom
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relying on does
Romesno
to take that
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In there
Thapar, the has
Cour
be given the
a "inter
wide conn
from the bill is
narrowerther
ph
to addressharmony
certain ke

The distinctio
disturbance of p
directed reflected
against i
indiv

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SPECIAL ARTICLE

The anti-conversion legislations must therefore be understood

In this light, the failure of Stainislaus to address the extensive
withiri a context wherein political and judicial commitment to
constitutional jurisprudence on the ambit of the term public
the principles of secularism and tolerance has been questioned.
order is disappointing. Regrettably, the Supreme Court lowered
While
the bar when considering whether the limitation should apply in the legislations alone do not threaten to depose these
validating anti-conversion legislations. Without examiningvalues,
or they nevertheless represent a highly visible and contro-
addressing the nuances of public order to demonstrate how it example of their dilution.
versial
could be applied in the context of these laws, the Court appeared
5 Guarantees
to trust that there was public disorder to such a degree that it by International Protections
While considering the anti-conversion laws with respect to the
justified a severe restraint on a constitutionally protected right.
freedom of religion guaranteed by international human rights in-
3.4 Article 25: An Essential Ingredient struments, two distinct, but related, sets of rights must be appre-
ciated.79
In response to recent complaints about the increasing number of One may be claimed by the proselytiser, while the other
anti- conversion laws, the National Commission for Minorities
is has
applicable to the proselyte. These have been described as the
"positive" and "negative" aspects of the freedom respectively,80
noted that the rights protected under Article 25 of the Constitu-
or, more specifically, as the freedom to attempt to persuade
tion are "an essential ingredient of our country's multi-religious
another
edifice".70 State governments are thus urged "to do nothing to to join a religious group and the freedom to be free from
unwanted interference.81
water down this basic provision".71 This exhortation is equally
relevant to the judiciary. The import and substance of Article 25
5.1 Freedom of Religion
must be given full effect to and the rights protected by the provi-
As indicated there are two aspects of religious freedom, namely,
sion should be resolutely guarded. Narrowing the rights protected
whilst liberally interpreting the limitations that may be applied
the rights of the proselytiser and those of the proselyte.
is a troubling trend that may result in an eventual evisceration
of Article 25. The Rights of the Proselytiser: The following questions have
been analysed.
4 Laws and Principles of Secularism (a) Do international instruments recognise a right to proselyt-
The anti- conversion laws also have a detrimental impact on the ise? While international instruments do not explicitly recognise a
principles of secularism and tolerance, the observance of which right to proselytise per se, there is a strong case to be made that
is mandated by the Constitution. right to religious freedom guaranteed by Article 18(1) of the Inter-
The Supreme Court has previously commented that Articles 25 national Covenant on Civil and Political Rights 1966 (iccpr)
and 26 ". . .embody the principle of religious toleration that has encompasses the right to attempt to peacefully propagate one's
been the characteristic feature of Indiar? civilisation from the religious beliefs. The relevant Article states:
start of history. Besides, they serve to emphasise the secular Everyone shall have the right to freedom of thought, conscience and
nature of Indian Democracy which the founding fathers religion. This right shall include freedom to have or to adopt a religion
considered should be the very basis of the Constitution."72 or belief of his choice, and freedom, either individually or in commu-

The "secular character of the Constitution" was subsequently
elevated to the position of a basic structure feature and thus
placed beyond the amending power of Parliament in Kesha-
vananda Bharati vs State of Kerala.73 In S R Bommai vs Union of
India74, the Supreme Court elaborated on this concept and went
on to hold that: "[T]he acts of a State Government which are cal-
culated to subvert or sabotage secularism as enshrined in our
Constitution, can lawfully be deemed to give rise to a situation in
which the government of the state cannot be carried on in
accordance with the provisions of the Constitution."75
Raising equally valid problems is the fact that the form of secu-
larism adopted by the b jp and the Congress Party is envisaged in
majoritarian terms, which posits the dominant Hindu population
as the norm against which other communities are assessed.
Consequently, any special protection for religious minorities is
treated as a violation of the principle of secularism.76 Proselytis-
ing religions are viewed with suspicion in light of their alleged
inability to tolerate other religions.77 Commentators suggest that
the answer to this problem lies in a much-needed paradigm shift
from formal to substantive equality, and from majoritarianism to
a recommitment to liberal democracy with sufficient protection
for minority rights.78
nity with others and in public or private, to manifest his religion or
belief in worship, observance, practice and teaching.82
India's ratification of the iccpr in 1979 requires it to respect the
rights contained therein.
The former special rapporteur of the Sub-Commission on Pre-
vention of Discrimination and Protection of Minorities, Arcot
Krishnaswami, has recognised that: "[w]hile some faiths do not
attempt to win new converts, many of them make it mandatory for
their followers to spread their message to all, arjd to attempt to
convert others. For the latter, dissemination is an important aspect
of the right to manifest their religion or belief"83 [emphasis added].
The United Nations Human Rights Committee has observed
that the right to freedom of thought, conscience and religion is
both "far-reaching and profound".84 Its component freedom to
manifest religion in worship, observance, practice and teaching
has been said to "encompass a broad range of acts", such as, for
example, the "freedom to prepare and distribute religious texts
and publications".85 It appears reasonable, in the light of these
observations, to conclude that the freedom to manifest religion
in practice and teaching should be interpreted to include distri-
bution of texts and publications to non-adherents where the
objective is to secure their conversion.

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== SPECIAL ARTICLE

This The
conclusionlaws a
finds
antees in caused
other by
regio
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European ins
Conven
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i8(3
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recognises p
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att
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aging vs
antag

Bearing witness in wo
In this con
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require religion
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bylaw and th
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or the funT
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Economic & Political weekly January 12, 2008 69

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 SPECIAL ARTICLE

freedom to have or to adopt a religion or belief of his choice" Hinduism.105

[em- The vhp has reported a total of 12,857 re-
phasis added]. No individual can be legitimately subject toconversions
ex- to Hinduism from Islam and Christianity in 2004. lo6
There is thus apprehension that despite the number of conver-
treme proselytising efforts that infringe upon the freedom to main-
sions and "re-conversions" to Hinduism, the laws will only be
tain his or her chosen religious beliefs. This is expressly mandated
used against religious minorities. The potentially selective use of
by the World Council of Churches, which is currently undertaking
the formulation of a code of conduct on conversions. This initia-
the laws may be a consequence of the definition of conversion
within
tive stems from the recognition that "while everyone has a right to the Arunachal Pradesh act, the Rajasthan bill and the
Chhattisgarh
invite others to an understanding of their faith, it should not be amendment, or, more troublingly, a deliberate
policy decision to target religious minorities.
exercised by violating other's rights and religious sensibilities."100

5.2 The Freedom of Expression 6 Other Objections

There are other objections to the laws that need to be listed here.
The freedom, of expression guaranteed by Article 19 of the iccpr
includes missionary activities.101 This right, as with Article 18 of
Severity of Penalties: The punishments provided in the anti-
the iccpr, is not absolute and is subject to the limitations in Arti-
conversion laws are extremely serious. While the Orissa107 and
cle i9(3)(a) and îçfoXb). However, as discussed above, support-
ers of anti-conversion laws have failed to marshal adequateMadhya
evi- Pradesh108 Acts provide for imprisonment extendable up
dence to justify abridging this freedom for the preservationtoof
a period of one year or a fine of up to Rs 5,000, subsequent acts
public order. None of the state governments passing these have laws drastically increased these penalties. Arunachal Pradesh's
have indicated that they are necessary for national security, act
pub-provides that anyone found guilty of converting, attempting
lic health or morals. The freedom of expression thus remains toin-
convert or abetting the conversion of another through the use
of force, fraud or inducement is punishable with imprisonment of
tact in the absence of a justifiable ground for imposing any limit-
ations on it, rendering the anti-conversion laws contrary to up
theto two years or a fine of up to Rs io,ooo.109 The Himachal
protection afforded by Article 19. Pradesh act provides for a maximum imprisonment period of two
years or a fine of up to Rs 25,000 or both.110
5.3 Right of Equality The Rajasthan bill, while providing for the same maximum
period of imprisonment, allows the imposition of a fine of up to
Article 2(1) of the iccpr obliges a state party to secure the rights
Rs 5O,oooul and further categorises all offences committed un-
contained within it "to all individuals within its territory and sub-
der... its provisions as non-bailable and cognisable.112 Chhattis-
ject to its jurisdiction without 'distinction of any kind, such as
religion". In the context of the freedom of religion, the Unitedgarh's 2006 legislative amendment to its Freedom of Religion Act
Nations General Assembly Declaration on the Elimination of increases
All the period of imprisonment from one to three years and
the
Forms of Intolerance and of Discrimination Based on Religion or maximum fines imposable from Rs 5,000 to Rs 25,ooo.113 The
Gujarat act provides for a maximum penalty of three years
Belief 1981 also creates positive duties that national states must
imprisonment or a fine of up to Rs 5O,ooo.114
perform in order to eliminate the scourge of religious intolerance
and discrimination. Some acts115 carry a heftier punishment for conversions of
women, children and members of the scheduled castes or
For this purpose, religion-based intolerance and discrimina-
scheduled tribes. Also punishable under some acts is the failure
tion is defined in Article 2(2) of the declaration as "any distinc-
tion, exclusion, restriction or preference based on religion or tobe-
give prior notice to district government officials of any
intended conversion.116
lief and having as its purpose or as its effect nullification or im-
As pointed out by Rajeev Dhawan, these penalties are more
pairment of the recognition, enjoyment or exercise of human
rights and fundamental freedoms on an equal basis".102 severe than for offences such as rioting and causing death by neg-
ligence.117 They are draconian and entirely disproportionate to
While lacking the status of a treaty, commentators have noted
that the comprehensiveness of the document and the regard any
it isills that the acts purport to remedy.
paid by the international community illustrates that it is a most
crucial instrument in determining religious rights.103 Anti-conversion Laws are Unnecessary: Existing pieces of legis-
lation are already fully capable of addressing the alleged problem
There is further alarm that, in practice, all anti-conversion
laws might be used to target the conversion efforts of religionof conversions brought about by force, allurement or fraud. Ghose
argues that this issue could be dealt by enforcing provisions of
minorities only. It will be recalled that Article 2(2) of the Decla-
ration on the Elimination of All Eorms of Intolerance andgeneral
of criminal law, including Sections 295A118 and 298119 of the
Indian
Discrimination Based on Religion or Belief, 1981 refers to both Penal Code i860; several provisions of the Code of Crimi-
nal Procedure Act 1973 and of the Police Act 1861.120 For the majority
"purpose" and "effect". As commentators argue, prohibitions
of state governments who have not yet enacted anti-conversion
against proselytism will be discriminatory if they are used pri-
laws, there appears to be no concern that they would be unable to
marily against religious minorities rather than being equally
applied to majority communities.104 prohibit or prosecute individuals for acts of forced conversions.
No official action appears to have been taken under the anti- Finally, it is worth noting that despite all the hysteria surround-

conversion legislations against Hindu conversion efforts, despite the issue of conversions, national census figures show the
ing
allegations from several quarters of forced conversionsnumber to of adherents to each religion has remained remarkably

Economic & Political weekly January 12, 2008 '

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 SPECIAL ARTICLE -

are "somehow not capable of managingTh

stable. 'religious' ideas the^
tianreceive, particularly
popul if they are from lower castes".124
In an analysis of the
from Tamil Nadu's now repealed anti
the
fact conversion law, it has been suggested that the presumption legiti
fallen
mising the enactment appears to have been
Hindus has that individua
conversion targets are incapable of agency, and areof
centage entirel;
recorded
susceptible to the acts of the proselytiser.125 a
in the
This paternalistic mindset must be
stat
overcome. A far more pre
a fairly
ferable and constitutionally legitimate approach is proposed sm
b]
other
Van der Vyver, who argues forstat
strengthening the right to infoi
tion mation as of
a more effective counter to religious exploitation
ov thai
ness legal proscription.126
of cla

The Anti-conversion Laws Are Paternalistic: As mentioned 7 Conclusions

earlier, there is no case for permitting conversions brought about

It is clear that the anti- conversion legislations, as they stand, pos<
by threats or acts of violence. Yet, by including the "threat of serious
di- challenges to both the intrinsic structure of Indian societ
vine displeasure" in the definition of force, state legislatures sug-
and the international perception of the country's legal system. 1
gest that individuals are incapable of exercising sound judgment.
is difficult to escape the conclusion that these legislations are pri
marily motivated by a religious ideology and will detrimental!
The paternalistic notions were clearly evident in the Orissa High
Court's judgment on the constitutionality of that state's anti-
impact religious minorities. Should the courts acquiesce in thi
emasculation of tolerance and secularism amid an increasin;
conversion law, which noted the role of such threats in "numb [ing]
number of such laws passed by different state governments
the mental faculty; more so of an undeveloped mind".123 In dis-
Indian democracy and its founding principles of equality an<
cussing the Stainislaus judgment, Pratap Bhanu Mehta concludes
that the Supreme Court appeared to have assumed that people
tolerance will be seriously weakened.

notes 17 Section 2(c), Rajasthan Freedom of Religion Bill32 Stainislaus vs State of Madhya Pradesh (1977) (1)
2006. SCC 677.
1 Government of Himac
sions', 18 Section 2(c), Rajasthan Freedom of Religion Bill
December 33 Section 2(e), Rajasthan Freedom
20, of Religion Bill 20
2006. 2006; Section 2(d), Gujarat Freedom of Religion
himachalpr.g0v.in/cabin
19 Section 2(b), Arunachal Pradesh Freedom of Reli- Act 2003.
2 Orissa Freedom of Relig
gion Act 1978. 34 Section 2(c), Himachal Pradesh Freedom of
3 Madhya Pradesh Freed
20 Ibid, Section 2(c). Religion Act 2006; Section 2(c), Orissa Freedom
4 Chhattisgarh inherite
21 Proviso to Section 2(b), Chhattisgarh Freedom ofof Religion Act 1967; Section 2(d), Madhya
Act 1968 from Madhy
terms. Religion (Amendment) Act 2006. Pradesh Freedom of Religion Act 1968; Sec-
22 Press Trust of India, published in newindpress. tion 2(e), Arunachal Pradesh Freedom of
5 Arunachal Pradesh Freedom of Religion Act 1978.
com, at: http://www.newindpress.com/News- Religion Act 1978.
6 Gujarat Freedom of Religion Act 2003. 35 This distinction was explored by the European
Items.asp?ID=IEP2OO7o82iio3824&Page=P&Titl
7 Government of Himachal Pradesh, 'Important e=Nation&Topic=o. Court of Human Rights in Kokkinakis vs Greece,
Cabinet Decisions of the State Government in
23 The relevant provision in all the concerned acts is260 [1993] ECHR 20 at p 21, discussed later in this
the Year 2007', June 5, 2007, available at, http:// Section 3. paper.
himachalpr.gov.in/cabinetdes.htm. 36 Article 18 reads: "Everyone has the right to free-
24 Nirmala Carvalho, 'Conversions and Missionaries:
8 Chhattisgarh Freedom of Religion (Amendment) Our Society's Greatest Threat, says Hindu Leader', dom of thought, conscience and religion; this right
Act, 2006. includes freedom to change his religion or belief,
Asia News, November 4, 2006, available at: http://
9 K S Tornar, 'On Last Day, Pratibha Sends Conver- www.asianews.it/view.php?l=en&art=5882. and freedom, either alone or in community with
sion Bill to President', Hindustan Times, June 21,25 See for example justice P Venugopal, 'Why Anti- others and in public or private, to manifest his re-
2007. ligion or belief in teaching, practice, worship and
Conversion Law Needed', May 11, 2003, available
10 All India Christian Council, 'Jharkhand Likely at: http://www.0rganiser.org/11May2003/p14. observance."
to Introduce Anti-conversion Bill', available at: htm. 37 Sardar Syedna Taher Saiffudin Saheb vs State of
http://www.aiccindia.org/newsite/0804061910/ 26 Section 2(b), Himachal Pradesh Freedom of Re- Bombay (1962) AIR SC 853.
news/Jharkhand%2obill%2o-io-o8-o6.htm. ligion Act 2006; Section 2(b), Orissa Freedom of 38 Ibid.
11 The acts together with the Rajasthan Bill Religion Act 1967; Section 2(c), Madhya Pradesh 39 Stainislaus vs State of Madhya Pradesh (1977),
described above will be collectively referred to Freedom of Religion Act 1968; Section 2(c), Gu- op cit.
as "anti-conversion legislations" throughout this jarat Freedom of Religion Act 2003; Section 2(d),
40 Yulitha Hyde and Ors vs State of Orissa AIR 1973
paper. Arunachal Pradesh Freedom of Religion Act 1978; Ori 116.
12 Tad Stahnke, 'Proselytism and the Freedom to and Section 2(d), Rajasthan Freedom of Religion
Bill 2006. 41 Stainislaus vs State of Madhya Pradesh AIR 1975
Change Religion in International Law', Brigham
MP 163.
Young University Law Review 251, 1999 , p 256. 27 H M Seervai, Constitutional Law of India: A Criti-
42 Ibid.
13 Section 2 (a), Himachal Pradesh Freedom of Re- cal Commentary (4th edition), Vol 2, Universal
ligion Act 2006; Section 2(a), Orissa Freedom Law Publishing Co, p 1289. 43 Yulitha Hyde, op cit.
of Religion Act 1967; Section 2(b), Chhattisgarh 28Section 2(b), Rajasthan Freedom of Religion Bill 2006. 44 Entry 1, List II, Schedule 7, Constitution of India
Freedom of Religion Act 1968; Section 2(b), Mad- 1950.
29 Section 2 (a), Madhya Pradesh Freedom of Reli-
hya Pradesh Freedom of Religion Act 1968. gion Act 1968; Section 2(a), Chhattisgarh Free- 45 Stainislaus vs State of Madhya Pradesh (1977),
14 Section 2(b), Gujarat Freedom of Religion Act dom of Religion Act 1968; Section 2(a), Gujarat op cit.
2003. Freedom of Religion Act 2003. 46 Stainislaus vs State of Madhya Pradesh (1977),
15 See Deepal Trevedie, 'Conversion Bill Rejected by30 Section 2(d), Himachal Pradesh Freedom of Re- op cit, quoting Romesh Thapar vs The State of
Gujarat Governor', The Asian Age, August 1, 2007, ligion Act 2006; Section 2(d), Orissa Freedom Madras (1950) AIR SC 124.
available at: Yahoo News - http://in.news.yahoo. of Religion Act 1967; Section 2(0, Arunachal 47 Ibid, quoting Arun Ghosh vs State of West Bengal
com/o7O73i/25i/6ivco.html. Pradesh Freedom of Religion Act 1978. (1966)1 SCR 709.
16 'Religious Freedom Bill Returned', The Indian Ex-31 Yulitha Hyde and Ors vs State of Orissa AIR 1973 48 Ibid.
press, August 1, 2007. Ori 116. 49 AIR 1954 SC 282.

72 JANUARY 12, 2OO8 Economic & Political WEEKI

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 ====================^^ SPECIAL ARTICLE

50 Ibid. 85 Ibid, paragraph 4. 113 Section 3, Chhattisgarh Freedom of Religion

51 AIR 1963 SC 86 Article
1638.9(2), European Convention on Human (Amendment) Act 2006.
52 Ibid. Also see Rights 1950.
Sardar Syedna 114 SectionTaher
4, Gujarat Freedom ofSaiffudin
Religion Act 2003.
87 (1993) ECHR
heb vs The State of 20. Bombay (1962) 115 See Section 5, Himachal
AIR Pradesh
SC Freedom853of Re- for
88 Ibid. ligion Act 2006; these
Section 3, Chhattisgarh Freedom
a summary of case-law relating to proposi-
tions. 89 Article 18(3), International Covenant on Civil and of Religion (Amendment) Act 2006; Section 4,
Political Rights 1966. Gujarat Freedom of Religion Act 2003; Section 4,
53 See for example, Durgah Committee, Ajmer vs
90 Human Rights Committee, General Comment Orissa Freedom of Religion Act 1967; Section 4,
Syed Hussain Ali AIR 1961 SC 1402; A S Narayana
vs State of Andhra Pradesh AIR 1996 SC 1765; and No 22, op cit, paragraph 8. Madhya Pradesh Freedom of Religion Act 1968.
E R J Swami vs State of Tamil Nadu AIR 1972 SC 91 Ibid, paragraph 22. 116 Section 4, Himachal Pradesh Freedom of Religion
1586.
92 Ibid. Act 2006; Section 5, Gujarat Freedom of Religion
93 Interview with Tahir Mahmood, then chairperson Act 2003; Section 5, Arunachal Pradesh Freedom
54 Seervai, op cit, p 1287.
of the National Commission for Minorities, May of Religion Act 1978, Section 5, Madhya Pradesh
55 For a discussion on the debates see Ghose, op cit. 3, 1999, as cited in Smita Narula, 'Overlooked Freedom of Religion Act 1968.
The text of the debates is available at: http://par- Danger: The Security and Rights Implications117 Rajeev Dhawan, 'Preliminary Submissions on
Iiamentofindia.nic.in/ls/debates/vol7p19. htm. of Hindu Nationalism in India', Harvard Human Rajasthan Dharma Swatantrya Bill, 2006', Ap-
56 Loknath Misra, for example, opposed the inclu- Rights Journal, Volume 16, Spring 2003, available pendix 2 to Christian Solidarity Worldwide, 'Anti-
sion of the term 'propagate' in Article 25 as a at: http://www.law.harvard.edu/students/orgs/ Conversion Bill in Rajasthan State, India', p 5.
means of "paving the way for the complete anni- hrj/issi6/narula. shtml. 118 Section 295A of the Indian Penal Code criminal-
hilation of Hindu culture, the Hindu way of life 94 For a list of violent acts committed against Chris- ises deliberate and malicious acts intended to out-
and manners"; see Constituent Assembly of India tians in India in 2006 see: All India Christian rage religious feelings of any class by insulting its
(Voi VII), December 6, 1948, available at: http:// Council, 'The Unofficial White Paper on Violence religion or religious beliefs.
parliamentofindia.nic.in/ls/debates/vol7p20a. against Christians in India - 2006', January 1,119 Section 298 of the Indian Penal Code criminalises
htm. Tajamul Hussain opposed it as it would lead 2007 available at: http://www.secularindia.com/ the uttering of words, etc, with deliberate intent
to instances of 'nuisance'; see Constituent Assem- comments/2OO7/oi/22The%2oUnofficial%2o to wound the religious feelings of any person.
bly of India (Voi VII), Decembers, 1948, available White.htm. Also see Sumit Sarkar, 'Conversions 120 Sanjay Ghose, 'Unsustainable Laws', Lawyers Col-
at: http://parliamentofindia.nic.in/ls/debates/ and Politics of Hindu Right', Economic and Politi- lective, 2001, available at: http://www.lawyerscol-
vol7p19.htm. cal Weekly, June 26 -July 2, 1999; and Dominic Iective.org/lcag/freedownloads/magzine2oo1/
57 Constituent Assembly of India (Voi VII), Decem- Emmanuel, 'Noughts and Crosses', Hindustan January%2O2ooi/unsus stein able laws.htm.
ber 6, 1948, available at: http://parliamentofin- Times, May 2, 2007. 121 Ministry of Home Affairs, Census of India,
dia.nic.in/ls/debates/vol7p2oa.htm. 95 Statement by John Dayal, member, National 'Data on Religion - Christians', 2001, available
58 Ibid. Integration Council, 'Sangh Bares Its Fangs on at: http://www.censusindia.net/religiondata/
59 Ibid. Founder's Centenary', January 22, 2007, available Sumary%2oChristians.pdf.
60 Ibid. at: http://www.indianmuslims.inf0/news/2007/ 122 Ministry of Home Affairs, Census of India, 'Pro-
61 Ibid. january/24/letters_issues/sangh_bares_its_ portion and Growth Rate of Population by Reli-
62 Ibid. fangs on founders centenary.html. gious Communities, India, 1961-2001', 2001, avail-
63 Ibid. 96 Stahnke, op cit, p 277. able at: http://www.censusindia.net/religion-
64 (1966) 1 SCR 709 97 Article 18, Universal Declaration of Human Rights data/statement.pdf.
65 AIR 1970 SC 852 1948. 123 Yulitha Hyde and Ors vs State of Orissa 1973 AIR Ori
66 Ibid. 98 Human Rights Committee, General Comment No 116.
67 AIR 1966 SC 740 22, op cit, paragraph 5. 124 Pratap Bhanu Mehta, 'Passion and Constraint',
68 Statement of Objects and Reasons, Gujarat free- 99 Seervai, op cit, p 1289. Seminar, January 2003, available at: http://www.
dom of Religion Act 2003. The Explanatory State- 100 World Council of Churches, 'Report from Inter- india-seminar.com/2003/521/521%20pratap%20
ment of the now repealed Tamil Nadu Freedom of Religious Consultation on 'Conversion - Assess- bhanu%2omehta.htm.
Religion Ordinance 2002 incorporates these same ing the Reality", Current Dialogue, Issue 47, June 125 V Suresh and Shankar Gopalakrishnan, "Convert'
reasons. 2006 available at: http://www.wcc-coe.org/wcc/ - And Be Damned', Combat Law, Vol i, Issue 6.1,
69 Statement of Objects and Reasons, Rajasthan
what/interreligious/cd47-i8.html. March 2003.
Freedom of Religion Bill 2006. 101 See interim report of the special rapporteur on 126 Johan D van der Vyver, 'Limitations on Freedom
70 National Commission for Minorities, Press Note
Freedom of Religion or Belief, Asma Jahangir, of Religion and Beliefs: International Law Pers-
United
C/20/33/16/06-NCM, July 27, 2006, available at: Nations General Assembly (UN doc pectives', 19 Emory International Law Review 499,
http://ncm.nic.in/pressnote.pdf. A/60/399), September 30, 2005, paragraph 61. 1995, P 505.
71 Ibid. 102 Ibid, Article 2(2).
72 Sardar Syedna Taher Saiffudin Saheb vs The State 103 See generally Derek Davis, The Evolution or Re-
of Bombay (1962) AIR SC 853. ligious Freedom as a Universal Right: Examining
73 AIR 1973 SC 1461. the Role of Religious Freedom as a Universal Hu-
Open Review
74 AIR 1994 SC 1918. man Right; Examining the Role of the 1981 United
75 Ibid, per Sawant, J. Nations Declaration on the Elimination of All Several international journals are moving
76 Brenda Cossman and Ratna Kapur, 'Secularisms Forms of Intolerance and of Discrimination Based away from closed "Peer Review" of
Last Sigh?: The Hindu Right, the Courts, and on Religion or Belief, Brigham Young University
Law Review 217, 2002.
research papers, towards an "Open Review"
India's Struggle for Democracy', 38, Harvard
International Law Journal 113, 1997, P 125- 104 Thomas Giegerich, 'Freedom of Religion as a process. In open reviews anyone can com-
77 Ibid, pp 125-126. Source of Claims to Equality and Problems for
ment on a paper submitted for publication.
78 Ibid. Equality', 34 Israel Law Review 211, 222, 2002.
79 Moshe Hirsch, 'The Fundamental Agreement 105 See for example the Human Rights Watch Report This will increase transparency in reviews
Between the Holy See and the State of Israel: A 'Overview of Human Rights Developments: India, as well as enhance participation and
Third Anniversary Perspective; The Freedom of 1999', available at: http://www.hrw.0rg/wr2k/
Asia-o4.htm#TopOfPage. Harsh Mander has involvement of the research community.
Proselytism Under the Fundamental Agreement
and International Law', 47 The Catholic University noted that this a strategy of the Sangh Parivar for
Law Review 407, 1998, p 408. intimidating the country's Christian minority; see EPw occasionally posts a submission on its
80 Isaiah Berlin, Four Essays on Liberty, Cox & Harsh Mander, 'A Heavy Cross to Bear', Hindustan web site and invites comments. Visitors to
Wyman, 1979, as cited in Moshe Hirsch, ibid. Times, June 27, 2007.
81 Ibid. 106 United States of America State Department, In- the EPW web site and readers of the journal
82 Article 18, International Covenant on Uvil and ternational Religious Freedom Report 2005: are encouraged to offer detailed comments.
Political Rights 1966. India', November 8, 2005, available at: http:// EPw will discuss the comments with the
83 Special rapporteur Arcot Knshnaswami, btudy or www.state.g0v/g/drl/rls/irf/2005/51618.htm.
Discrimination in the Matter of Religious Rights 107 Section 4, Orissa Freedom of Religion Act 1967. author and a revised version will be proc-
and Practices', UN Doc E/CN.4/Sub 2/200/Rev 1, 108 Section 4, Madhya Pradesh Freedom of Religion essed for publication.
UN Sales No 60 XIV 2 (190) as cited in Stahnke, Act 1968.
op cit, p 260. 109 Section 4, Arunachal Pradesh Freedom of Reli-
Please visit the Open Review section on
84 Human Rights Committee, General Comment gion Act 1978.
No 22: The Right to Freedom of Thought, Con- 110 Section 5, Himachal Pradesh Freedom of Religion our web site (www.epw.org jn) to read and
science and Religion (Article 18): 30/07/93', avail- Act 2006.
comment on the paper currently submitted
able at: http://www.unhchr.ch/tbs/doc.nsf/(Sym 111 Section 4, Rajasthan Freedom of Religion Bill 2006.
bol)/9a3Oii2C27dn67CCi2563edoo4d8fi5?Opend 112 Section 5, Rajasthan Freedom of Religion Bill for Open Review.
ocument at paragraph 1. 2006.

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