CHAPTER 2

INDIAN CONSTITUTION ON RELIGIOUS CONVERSION

2.1. Introduction

India is a secular country; that means the Country is not pledged to any religion
as the states religion. The basis of secular state is not a ‘wall of separation’
between state and religion but rather the principle, no special privilege be granted
to any one religion. The secular state holds the principle that, the function of the
state must be non-religious. India is a nation of many religions and freedom of
religion has been secured by Constitutional protection. Almost all the countries
of the world guarantees freedom of religion in some form or other. Such a
guarantee assumes special importance in a multi religion country like India. In
this chapter we are discussing about the legalistic perspective on religious
freedom and religious conversion in the Indian Constitution.

2.2. Why is India Different in Religious Freedom?

Many constitutions of the world guarantee a right to religious freedom generally

subject to public order, morality and health. Nevertheless, many constitutions
give a special status to one religion or the other, and subject adherents of other
faiths to some disability. The constitution of Sri Lanka gives priority to
Buddhism the fore most place and accordingly it shall be the duty of the state to
protect and foster Buddhism, at the same time they offer freedom to all other
religions to practice their faith.1 Constitutions of many Muslim dominated
countries accord superior status to Islam. For example, the Malaysian
constitution states, ‘Islam is the religion of the Federation, but other religions
may be practiced.’2 Similarly some of the Catholic countries gives priority to

1
Srivastava, Religious Freedom in India: Historical and Constitutional Study,96.
2
Srivastava, Religious Freedom in India: Historical and Constitutional Study,96.

1
Christianity to be the state’s religion, thus the constitution of Argentina states,
‘the Federal Government supports the Roman Catholic Apostolic Faith.’3 The
constitution of Denmark lays down that, the ‘Lutheran Church shall be the
established Church of Denmark and as such, it shall be supported by the state.’4
In England there is no separation of Church and State and the Church of England,
(that is, the Protestant Church) is an established church and the Crown is the
supreme head of this Church.5
Socialist countries, on the other hand, are opposed to all religions. While they do
not deny the right to religious freedom to their citizens, they permit them to
conduct antireligious propaganda or to spread atheism.6
The American constitution and some other constitutions enacted under American
influence while guaranteeing free exercise of religion, erect a wall of separation
between the state and the Religion.7
“Secularism in India, however, neither implies support and maintenance of any
particular religion nor does it mean a state antagonistic to the Church or complete
separation of the State from the Church. It means equal protection of all religions
and beliefs without any discrimination.”8

2.3. The Preamble of the Constitution of India

“Preamble is the philosophy of the Constitution, every constitution in the world

has a philosophy of its own.”9 It means that the constitution is based on certain
definite principles of social, political and economic relevance. It may also be
termed as its ideology. The preamble of the Indian Constitution is as follows:

3
Srivastava, Religious Freedom in India: Historical and Constitutional Study,97.
4
Srivastava, Religious Freedom in India: Historical and Constitutional Study,97.
5
Srivastava, Religious Freedom in India: Historical and Constitutional Study,97
6
Srivastava, Religious Freedom in India: Historical and Constitutional Study,97
7
Srivastava, Religious Freedom in India: Historical and Constitutional Study,98.
8
Longkumer, Religious Freedom and Conversion in India,32.
9
Joseph, A Simple Approach to Indian Constitution, 20.

2
 WE, THE PEOPLE OF INDIA, having solemnly resolved to constitute India
into a SOVEREIGN SOCIALIST SECULAR DEMOCRATIC REPUBLIC and
to secure to all its citizens:

JUSTICE, social, economic and political;

LIBERTY, of thought, expression, belief and worship;

EQUALITY of status and of opportunity; and to promote among them all;

FRATERNITY assuring the dignity of the individual and the unity and integrity
of the Nation;

IN OUR CONSTITUENT ASSEMBLY this twenty sixth day of November,

1949, do HEREBY ADOPT, ENACT AND GIVE TO OURSELVES THIS
CONSTITUTION.

The preamble to the Constitution of India proclaims that, its purpose is to secure
to all its citizens: Liberty of thought, expression, belief, faith and worship. This
read with articles 25 to 28, guaranteed equality in the matter of faith and religion.
“All people have the freedom to profess and practice any religion and to
propagate by peaceful means. But the state may ban or restrict the practice of
any religion in public interest. And can make a law for social welfare and
reform.”10
“All religious denominations have the right to establish and manage their
institution for religious and charitable purposes; to own and acquire movable and
immovable property and to administer and manage their religious affairs.”11 “No
person shall be compelled to pay any tax for the protection or maintenance of
any particular religion or religious denominations.”12
“No religious instructions shall be imparted in any educational institution wholly
maintained out of state funds. Attendance at such religious instructions cannot

10
Joseph, A Simple Approach to Indian Constitution, 35.
11
Joseph, A Simple Approach to Indian Constitution, 36.
12
Joseph, A Simple Approach to Indian Constitution, 36.

3
be made compulsory. And finally it also means that the right to profess, practice
and propagate one’s religion does not give a right to convert someone.”13

2.4. Religious Conversion in the Constitution of India

India is a democratic, secular and socialist country. Although the term

‘secularism’ in the western context denotes the separation between religious and
temporal areas and also the promotion of physical, scientific, rational and social
development, secularism has a different connotation in India, where it is used in
the sense of religious tolerance and equal recognition of all religions.
In the historical context of the drafting of the Constitution of 1950, the option of
a secular state appeared wiser. At the time of the drafting, the social and political
climate of India was not in favour of ‘secularism,’ because of communal revolts
and demands for the partition of the country. “The Fathers of the Constitution,
however, wanted to establish a secular state that respects all religions and all
religious, linguistic and cultural communities. However, the word ‘secularism’
was not included in the text, in order to avoid misunderstanding among the
Hindus. It was added in 1972 with the 42nd Amendment.”14
As a secular country, which equally respects all religions, India guarantees
religious freedom and freedom of conversion to all its citizens. In fact, the right
to religious freedom is placed in Part III of the Constitution, which contains
fundamental human rights. However, religious conversion created much
controversy during the drafting of the Constitution. Many members of the
Constituent Assembly opposed the insertion of the phrase to ‘propagate a
religion’ in the Constitution. “According to them, freedom to convert should not
be explicitly guaranteed by the Constitution and the states should enact laws to
control religious conversion.”15 They also wanted to prohibit the conversion of
minors. However, Article 25 of the Constitution guarantees the freedom to

13
Longkumer, Religious Freedom and Conversion in India,33.
14
Lourdusamy, Religious Conversion in a Multi- Religious Context,62.
15
Lourdusamy, Religious Conversion in a Multi- Religious Context,63.

4
profess, practise and propagate a religion, and does not speak about controlling
the conversion of minors. Let us analyse first the Constituent Assembly debates
with regard to religious conversion;

2.5. The Constituent Assembly's Debates on Religious Conversion

The Constituent Assembly faced many difficulties in dealing with the freedom
to propagate a religion and convert others. The members examined the doctrine
and the practices of Hindus and minority religious communities, and it was
difficult for them to define religious freedom. Therefore, they had to discuss this
subject at length; first in subcommittees and then finally in the council of the
Constituent Assembly.

2.5.1. Discussions in Various Committees

The subcommittee on Fundamental Rights dealt adequately with the freedom to

propagate a religion and conversion, and the subcommittee on Minorities
reviewed its proposals. For its part, the Advisory Committee laboriously
discussed proposals on the freedom to propagate a religion and the right to
convert, before these were finalised by the Constituent Assembly.
In the Subcommittee on Fundamental Rights, several proposals were submitted
with regard to the freedom of religious conversion. K.M. Munshi, one of the
member of the Constituent Assembly stated that, “duties are inseparable from
human rights and the law of the Indian Union should prevent any abuse of human
rights;”16 he presented a draft on fundamental rights, which contained the two
following articles:

1. No person under the age of eighteen shall be free to change his religious
belief without the permission of his parents or guardian.17

16
Lourdusamy, Religious Conversion in a Multi- Religious Context,64.
17
Lourdusamy, Religious Conversion in a Multi- Religious Context,64.

5
 2. Conversion from one religion to another brought about by pressure, undue
influence or the offering of material inducement is prohibited and is punishable
by the law of the Union.18

The subcommittee on Fundamental Rights adopted a modified version of

Munshi’s draft on the freedom of conscience and the right to freely profess and
practise a religion. Such rights would not include economic, financial and
political activities associated with religious activities.
In his proposal on the fundamental rights of citizens, Ambedkar was even more
explicit. He wanted every Indian citizen to have the freedom to profess,
propagate and convert; he said, “the State shall guarantee to every Indian citizen,
freedom of conscience and the free exercise of religion, as well as the right to
profess, preach and convert, subject to public order, health and morals.”19
Ambedkar added that, “no one should be forced to join a religious association,
to receive religious instruction or perform a religious act.”20 Munshi wanted to
protect the citizens from the activities of proselytes, whereas Ambedkar insisted
that everyone should have the right to convert.
The subcommittee on Fundamental Rights discussed these proposals. It sought
to determine whether the right to convert would be recognized by law.
Ambedkar wanted conversion to be recognised by law and the deletion of the
words ‘undue influence.’ However, a majority of the members wanted to keep
these words and so his proposal was rejected. This committee prepared a new
draft containing three paragraphs on the rights related to religion:

1. All persons are equally entitled to freedom of conscience, to freedom of

religious worship and to freedom to profess a religion subject to public order,
morality or health.21
2. No person under the age of eighteen shall be free to change his religious
persuasion without the permission of his parent or guardian. 22

18
Lourdusamy, Religious Conversion in a Multi- Religious Context,64.
19
Lourdusamy, Religious Conversion in a Multi- Religious Context,65.
20
Lourdusamy, Religious Conversion in a Multi- Religious Context,66.
21
Lourdusamy, Religious Conversion in a Multi- Religious Context,66.
22
Lourdusamy, Religious Conversion in a Multi- Religious Context66.

6
 3. Conversion from one religion to another brought about by coercion, undue
influence or the offering of material inducement is prohibited and is punishable
by the law of the Union.23

Finally, after long discussions and debates, the Constituent Assembly decided to
include all the three provisions, namely, the freedom to profess, practice and
propagate any religion in the Constitution of India. But again the term ‘to
propagate any religion’ brings forth a lot of controversies especially regarding
religious conversion.

2.6. Does the Right to Propagate a Religion Include the Right to Convert?

In order to make clarity on this topic, we have to be aware of two famous cases,
namely ‘Yulitha Hyde vs. State of Orissa’ and ‘Rev. Stanislaus vs. State of
Madhya Pradesh,’ which are very important. The facts of the case of Yulitha
Hyde vs. State of Orissa are: three catechists, a catholic priest and three pastors
of the Evangelical Church were accused of converting others by force. The
Christian community reacted against this accusation and demanded justice at the
High Court of Orissa. The key question faced by the High Court of Orissa was
whether the propagation of the religion was a religious duty of all Christians and
a cornerstone of the doctrine of Christianity?
The Christians justified their Catholic faith and devoted their lives to evangelize
others and also to convert them to Christianity, once they were convinced of the
Christian faith. According to them, they had the right to propagate their faith and
the non- Christians were free to convert to Christianity. They quoted the
Scriptures and official documents of the Catholic Church to prove that their faith
is a gift from God and must be shared and that it is the command of Christ (Mt
28, 19; Mk 16, 15). Thus they justified that the propagation of their faith was a
religious obligation and they followed the teachings of Christianity.

23
Lourdusamy, Religious Conversion in a Multi- Religious Context,66.

7
The Christians also showed that, conversion was a work of God’s revelation and
it was achieved through prayer and that the non-Christians were attracted to
Christianity by the belief in God, life after death, and by the exemplary life of
priests and religious; they argued that if the people of low caste and backward
classes converted to Christianity, the reason was to escape from the hatred and
oppression of the upper classes. If a Hindu realised that the reason for his
poverty, social deprivation and the caste system was the religion he professed,
then did he not have the right to convert to another religion?
Those who wish to convert to Christianity undergo a period of preparation for
six months to a year and during this period they are known as Catechumens and
learn fundamental religious beliefs of love of neighbour, charity etc. They argued
that the basic needs of material life are important for spiritual life, citing the
decree Ad Gentes of Vatican II (Decree on the Missionary Activity of the
Church).
In his decision, Judge R.N. Misra acknowledged that, “conversion is an integral
part of Christianity and propagation of religion is a religious obligation for every
Christian and that the freedom to propagate a religion also includes the religious
acts done in accordance with religious belief.”24 Thus, he concluded that the
freedom to propagate a religion includes the freedom to convert and as such is
guaranteed by Article 25 of the Constitution.
This decision of the High Court of Orissa was challenged in the High Court of
Madhya Pradesh in the case of Rev. Stanislaus vs. State of Madhya Pradesh
regarding the registration of the conversions as per the existing state’s law,
which says that all those who are getting converted from one religion to another
should legally approve their conversion or else it will not be valid. In this case,
Justice P.K. Tare said that, “the laws controlling religious conversions are valid

24
Lourdusamy, Religious Conversion in a Multi- Religious Context, 89.

8
and constitutional and religious freedom is not the domination of an individual,
and a person’s freedom should not deprive the freedom of others.”25

2.6.1. Intervention of the Supreme Court

Against this decision of the High Court of Madhya Pradesh, an appeal was
made in the Supreme Court. The accusers questioned that, the freedom to
propagate a religion includes the freedom to convert and the freedom to convert
is a fundamental right guaranteed by Article 25. In his judgement, Supreme
Court Judge A.N. Ray declared that, “Article 25 does not grant a fundamental
right to convert another person.”26 According to him, “this Article gives only
the right to transmit or spread one’s religion by an exposition of his doctrine.”27
It must be remembered that Article 25 guarantees freedom of conscience to all
citizens and not just to one group of followers of a particular religion, and it is
clear that there is no fundamental right to convert others. According to the
Judge A.N. Ray, “if a person deliberately makes efforts to convert others,
which are separate from the efforts to transmit and spread the teachings of his
religion, it would violate the freedom of conscience guaranteed to every
citizen.”28 In addition, he asserted that, “the freedom of a person assumes the
freedom of another person too, and therefore there cannot be a fundamental
right to convert others.”29
Thus, the Supreme Court invalidated the decision of the High Court of Orissa
and confirmed the decision of the High Court of Madhya Pradesh. This ruling,
which is a law until today, is questionable and exhausts doubts about the
religious freedom guaranteed by the Indian Constitution.

25
Lourdusamy, Religious Conversion in a Multi- Religious Context,89.
26
Lourdusamy, Religious Conversion in a Multi- Religious Context,89.
27
Lourdusamy, Religious Conversion in a Multi- Religious Context,89.
28
Lourdusamy, Religious Conversion in a Multi- Religious Context,89.
29
Lourdusamy, Religious Conversion in a Multi- Religious Context,89.

9
Indeed, this ruling does not take into account the legislative history of Article 25
and the reasons for which the freedom to propagate a religion were explicitly
recognised as a fundamental right. After a lengthy discussion, the Constituent
Assembly had concluded that the freedom to propagate a religion includes the
freedom to convert and cancelled the explicit prohibition of conversion in the
Constitution. An examination of the history of the proceedings of the Constituent
Assembly thus reveals the true spirit of the law.
It seems that the Supreme Court Judges did not consider all the concepts defined
in Article 25, before making this ruling. They have not analysed the discussions
of the Constituent Assembly relating to the word ‘propagate,’ rather they have
referred only to modern dictionaries. According to them, “‘Propagation’ simply
means spreading, dispersing a belief, practice from one person to another or from
one place to another; they considered religion as a faith or set of beliefs and its
propagation as ‘exposition’ or ‘transmission’ of a doctrine.”30 They have ignored
in this ruling the cultic aspect of the religion and that a religion includes
charitable services.
The Supreme Court certainly does not remove or reduce the freedom to propagate
a religion guaranteed by the Constitution. It has not distinguished between the
conversions which respect freedom of conscience and those which refuse to respect
it. In other words, it has not distinguished between legitimate conversion and
illegitimate conversion. The Judges seem to have interpreted freedom of
conscience without considering all the aspects of religious freedom. “By freedom
of conscience, the Indian Constitution clearly means the freedom to choose a
religion. The freedom to propagate a religion is linked to that of selecting and
choosing a religion which includes not only intelligence but also will.”31 “A person
must know all the options before choosing. In addition, the followers of a religion
teach their doctrines to help others to make sufficient intellectual convictions.

30
Lourdusamy, Religious Conversion in a Multi- Religious Context,90.
Baird, “Religion and Law in Independent India,”37.
31

10
Therefore, efficient propagation can lead to conversion.”32 “It is clear that
conversion by force, deception or seduction must be prohibited for the reasons of
security, morality and public health. The Catholic Church, which professes the
obligation to seek the truth, does not permit such a conversion.”33
If ‘A’ spreads his faith in Christianity without disturbing public order, morality
and health and if ‘B’ is convinced of the truth of Christianity and if ‘B’ wants to
become a Christian, ‘B’ is entitled to convert to Christianity and this right is
guaranteed by Article 25 of the Constitution as freedom of conscience. This type
of conversion is authentic, free and legitimate. In this example both, ‘A’ and ‘B’
are active. ‘A’ actively propagates his faith and ‘B’ actively chooses to convert
himself because of intellectual and personal conviction. However, if ‘A’ uses any
force, fraud or any other unlawful methods to get ‘B’ to convert to Christianity,
‘B’ becomes a passive victim, and his freedom of conscience is destroyed. This
type of conversion is forced conversion and nobody has the right to do so.
Unfortunately, the Indian Supreme Court has not made this distinction in its ruling
of Rev. Stanislaus vs. State of Madhya Pradesh.
Thus, the decision of the Supreme Court is one of misunderstanding the religious
freedom established in the Constitution. It has actually forgotten the complete
concept of religious freedom, and it focused solely on ‘freedom of conscience.’
It made the mistake of believing that if ‘A’ tries to convert ‘B,’ then the freedom
of conscience of ‘B’ is violated upon. In fact, if ‘A’ convinces ‘B’ by the
propagation of his belief, ‘A’ also gives ‘B’ the opportunity to exercise free
choice. Therefore, the conversion of ‘B’ in no way impinges on his freedom of
conscience.
In India, since the decision of. Rev. Stanislaus vs. State of Madhya Pradesh, the
freedom to propagate a religion includes only the freedom to subjective
conversion and there is no freedom to convert others. Hindus and religious

Baird, “Religion and Law in Independent India,”38.

32
33
Kunnumpuram, Force Fraud or Free Choice,144.

11
minority communities have different perceptions of the right to convert. For
religious minority communities, the freedom to propagate a religion is the
propagation of the belief, whereas for Hindus, it is only to maintain the faith or
belief. Christians argue that the right to convert others is not only an essential
part of Christianity, but also a fundamental right; but in fact, the Catholic Church
teaches and promotes only conversions out of real convictions. On the contrary,
Hindus regard the right to convert from the viewpoint of traditional Indian social
and religious values and also oppose it, because of the difficulties involved in
applying this right in a multi-religious and multi-cultural context.

2.7. Anti-Conversion Laws in India

There were a lot of attempts to bring forth some laws in the Constitution to
control religious conversions. However, still there is no any particular law in the
constitution against or to stop religious conversion; but the fact is that, the states
are free to make such anti conversion laws concerning the culture and tradition
of the people’s lives. Most of the states have its own laws regarding religious
conversion. In short we can say that, India as a Union has no any anti conversion
laws assured by the Constitution.
In 2002, a Bill on the freedom of religion was introduced in Parliament,
according to which, “new converts should seek written permission of the civil
authorities before conversion, and otherwise they could be punished with a
penalty of 1,000 rupees per day after conversion.”34 This Bill also demanded
that, “only those who had studied up to the level of High School could convert
to other religions.”35 Nevertheless, this Bill was again withdrawn for the reason
that, these conditions would effect on the religious freedom of minority religious
communities.

34
Raju, Religious Conversion,99.
35
Raju, Religious Conversion,99.

12
2.8. Indian States having Anti Conversion Laws

Currently four states, Uttar Pradesh, Himachal Pradesh, Uttarakhand and

Madhya Pradesh, have enacted anti-conversion laws that include provisions to
prevent ‘conversion’ for the purpose of marriage. While all states have banned
conversion by force, fraud or allurement and inducement of money, only these
four states have placed a ban on conversion through marriage.36
In the media, these have been commonly referred to as ‘love jihad laws,’
although this term does not feature in the law enacted. This is despite the fact
that Uttar Pradesh Chief Minister Yogi Adityanath had publicly stated his
intention to make a law to control ‘love jihad.’ The media, however, always
refers to it as the ‘love jihad law.’ Haryana, Karnataka, Gujarat and Assam states
also have announced proposals to introduce similar legislation. The Chief
Minister of Haryana stated that, “such a law is necessary in view of the several
incidents of marriage and forcible conversion that had been reported in his
state.”37 Laws in all these four states are generally similar in terms of structure
and have common features but differ in respect to severity of the imposed fine
and punishment, which goes up to 10 years.
The state-level legislation took place when all attempts to enact these laws at the
central level failed. As a national legislation, it received a setback from the
Ministry of Law and Justice, which stated that it was ‘purely a state subject.’ i.e.,
a matter that lies under the constitutional domain of the states.
Similarly, the Arunachal Pradesh, Orissa, Chhattisgarh, Tamil Nadu, Gujarat,
Rajasthan and Jharkhand states have also initiated some laws to control religious
conversion.

36
Chowdhry, “Anti-conversion laws violate right to equality,” [ online].
37
Chowdhry, “Anti-conversion laws violate right to equality,” [ online].

13
2.9. Conclusion

The problem of religious freedom is of very great importance for a country like
India which has been not merely birth place of some but also a congenial home
for most of the major religions in the world. It is religious freedom that makes
India different and unique from all other countries in the world. Religious
conversions are to be permitted if it gives inner joy and satisfaction to an
individual and should be prevented if it is because of any forcible or fraud means.
It is a fact that the movements like ‘Love Jihad’ and ‘Narcotic Jihad’ etc., forces
us to make laws on conversion in common, despite the fact that, freedom to
propagate the religion includes the freedom to convert as well. Let the
conversions to take place if it is for one’s good, that is the only principle we
would hold as an Indian. And beware of the fact that, religion is a matter of faith
and belief rather than legitimate principles.

14
Lourdusamy, Religious Conversion in a Multi- Religious Context: An Outlook on civil and
Canon laws,

Srivastava, Religious Freedom in India: Historical and Constitutional Study,

Kunnumpuram, Force Fraud or Free Choice? Inter disciplinary Perspectives on Conversion,

Longkumer, Religious Freedom and Conversion in India,

Joseph, A Simple Approach to Indian Constitution,

Baird, Religion and Law in Independent India,

Raju, Religious Conversion: Legal implications,

15
16