Religion and law

As clamour to ban conversion grows, a reminder: five Indian states have already done so

Orissa, Madhya Pradesh, Chhattisgarh, Gujarat and Himachal Pradesh have set a dangerously illiberal precedent.

In a recent article on the First Post website titled "Is religious conversion really a fundamental right, or can we ban it? ", PhD student Jaideep Prabhu pitches for a “complete ban on proselytism and religious conversion”. “Religious liberty,” he contends, renders “Dharmic systems” unable to “compete as Abrahamic faiths do”. Further, Western-style secularism in which there is a “preference shown towards the competition of ideas is nothing short of a cultural invasion”.

That in the 21st century, someone might be arguing against the “competition of ideas” seems to me remarkable. Somewhat more absurdly, Prabhu is unaware that his wish was granted three decades ago by the Supreme Court of India, which held that religious conversion was not a fundamental right (Stanislaus vs State of Madhya Pradesh).

In fact, not only is religious conversion not a fundamental right, but in five states across India conversion is banned in all but name. In Orissa, Madhya Pradesh, Chhattisgarh, Gujarat and Himachal Pradesh the process of conversion is so regulated and policed that it is almost impossible to carry out.

A good example of the law at work was seen in Shivpuri, Madhya Pradesh, earlier this fortnight. Four Dalits converted to Islam as a reaction to the caste discrimination they faced. However, under the Madhya Pradesh Freedom of Religion Act (a suitably Orwellian name for a law that actually curbs religious freedom), a change of religion requires the permission of the state government. Not only were those four arrested, but Vishwa Hindu Parishad and Bajrang Dal activists ensured that they were reconverted to Hinduism. A number of applications for religious conversion now lie with the state government, which refuses to act on them, even as right-wing organisations discuss punitive measures such as the destruction of standing crops and dispossession of land and other property for Dalits who dare to convert in the future. In Madhya Pradesh, it seems, conversions are banned if they take place away from Hinduism.

How this unfolded

There were no anti-conversion laws in British India. After Independence, the Lok Sabha debated two bills that sought to curb conversions, the Indian Conversion (Regulation and Registration) Bill of 1954, and, six years later, the Backward Communities (Religious Protection) Bill. While both bills had wide support, Nehru, playing his usual role as the one-man vanguard of Indian liberalism, saw that both were eventually binned.

Predicting the repressions such laws could engender, Nehru argued that these laws, “will not help very much in suppressing the evil methods [of gaining converts], but might very well be the cause of great harassment to a large number of people. Also, we have to take into consideration that, however carefully you define these matters, you cannot find really proper phraseology for them. The major evils of coercion and deception can be dealt with under the general law. It may be difficult to obtain proof but so is it difficult to obtain proof in the case of many other offences, but to suggest that there should be a licensing system for propagating a faith is not proper. It would lead in its wake to the police having too large a power of interference.”

Foiled at the Centre, anti-conversion laws had greater success in the states. In 1967, Orissa, then ruled by the right-wing Swatantra Party, became the first state to enact a “Freedom of Religion” Law. Madhya Pradesh followed suit the next year, with Gujarat and Himachal Pradesh following with similar legislation. Chhattisgarh inherited Madhya Pradesh’s law when the state was partitioned. Arunachal Pradesh also has an anti-conversion law on its books, but since the rules for the act haven’t been framed, it remains a dead letter. The Rajasthan Assembly has already passed an anti-conversion bill that awaits the President’s assent to be made into law. Interestingly, the laws in Himachal Pradesh and Arunachal Pradesh were promulgated by Congress governments, which shows how similarly the two big parties in India view this matter.

All these state laws are remarkably similar in scope. None of the laws directly ban conversion. Instead they ban conversions by means of “force, allurement, inducement or fraud” – but of course they leave these terms quite undefined, which gives the administration and its agents almost draconian powers.

Threat of divine displeasure

For example, “force” also includes the “threat of divine displeasure”. So, farcically, if a missionary informs a person that only Christians are allowed entry into heaven – a core part of the faith – that could also be construed as “force”. This interpretation of “force” was upheld by the Orissa High Court in Yulitha Hyde v. State of Orissa. It held that the "threat of divine displeasure numbs the mental faculty; more so of an undeveloped mind and the actions of such a person thereafter, are not free and according to conscience”.

That the Indian state believes it needs to take decisions because some of its people have “undeveloped minds” is symptomatic of much of the logic underwriting such legislation. Of course, all faiths offer carrots of reward and sticks of punishment. To lump these elements of a belief system under “force” is, to quote Pratap Bhanu Mehta, bizarre and shows that “anti-conversion legislation is illegitimately paternalistic”.

Again, “inducement” or “allurement” is defined broadly to include “the offer of any gift or gratification, either in cash or in kind and shall also include the grant of any benefit, either pecuniary or otherwise” (Orissa Freedom of Religion Act, 1967). This problematic definition was even noted by the High Court of Orissa in Yulitha Hyde vs State of Orissa and called out for its extremely wide scope. For example, any charitable work carried out by a religious organisation could come under a “grant of benefit”, as would free education or healthcare. Unfortunately, in Stanislaus vs State of Madhya Pradesh (1977), the Supreme Court struck down the Orissa High Court’s ruling and upheld this vague definition.

Vague definitions

Matters reach a farcical crescendo when we come to “fraud”, however. None of the laws care to define fraud. In effect, under these acts, many religious tenets like “Adam was the first man on Earth” or “Noah saved every species on the planet” might legitimately be construed as “fraud”, since the speaker has no way of proving them in the material world.

Two of these acts – Madhya Pradesh and Gujarat – even require prior permission from the state government before a conversion takes place. So, if on one fine day, a resident of Ahmedabad, decided to, say, convert from Islam to Rastafarianism in the privacy of his home, but did not take the state government’s permission for this, as per the law of the land he could be imprisoned for up to three years. That Narendra Modi and Shivraj Chauhan think that citizens need the permission of the government in order to think their thoughts and adopt beliefs or ideas is an extremely disturbing development – one that strikes a particularly large nail into the coffin of Indian liberalism.

When these laws first came out in Orissa and Madhya Pradesh, they were immediately challenged in the courts. Matters eventually reached the Supreme Court in 1977, where in the landmark case, Stanislaus v. State of Madhya Pradesh, the court held that conversion, per se, is not a fundamental right under Article 25 and can be regulated by the state.

A core belief

Conversion is often a core part of religion. In fact, in Stanislaus v. State of Madhya Pradesh, if the Supreme Court had consulted the Constituent Assembly records it would have found that “propagation” in Article 25 explicitly refers to the right to convert. An amendment to remove the word “propagation” was even defeated in the Assembly. In fact, restricting conversion not only violates the right to religion but also the right to free speech. Moreover, the Universal Declaration of Human Rights ensures that a person’s right to religion also includes the “freedom to change his religion or belief“.

The state has no business policing the religious beliefs of its citizens; neither is it in a position to allow or disallow a change of faith if India is to be a liberal state.

Escaping persecution

Moreover, conversion is often an ennobling act, allowing individuals to escape persecution as well as acting as a reforming force for a religion as a whole. There is no better example of this than Ambedkar, who spent many years pushing Dalits to convert away from Hinduism. In a powerful speech to the Bombay Presidency Mahar Conference in 1936, Ambedkar declared that, “religion is for man and not man for religion. For getting humane treatment, convert yourselves. Convert for getting organised. Convert for becoming strong. Convert for securing equality. Convert for getting liberty. Convert so that your domestic life should be happy."

Unsurprisingly, the Shivpuri conversions were driven by caste oppression. Vindicating Ambedkar, the “ghar vapsi” or reconversion ceremony was accompanied by promises from right-wing Hindu organisations that caste discrimination would end in the area. Across the world, laws and social conventions against apostasy exhibit a strong correlation with religious and social stagnation, as best illustrated in many parts of the Muslim world. For India to go down this path is alarming and, ultimately, foolish.

Finally, the fact that individuals can be legally tied down to their religion of birth and do not have the full freedom to make their own decisions is one in a long line of measures taken by the Indian state that treats the country as a conglomeration of communities and not of individuals. This is an extremely slippery slope to be on, one that the country must look to get out of.

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