The conversion debate simmering in Parliament goes right to the heart of the fundamental right given by Article 25 of the Indian Constitution, which says, “Subject to public order, morality and health… all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.”

Governments or organisations that want to ban, restrict or regulate religious conversions would have to overcome or abridge this right available to all persons in India – citizen and non-citizen alike.

This right is an individual right, but its exercise is often a collective or communal affair. An individual may be born into one faith and persist with it the whole life, but he also may choose to follow another faith or to abandon religion altogether. A truly secular state ought to leave the matter of religious choice to be decided at the level of individual convictions alone. Yet, exercise of religion is a communal and political affair in India.

Work in progress

It is an article of faith, for instance, for political Hindutva that the Hindu religion is under perpetual threat because its followers are likely to be converted by force or inducement. Since the Hindu religion exists mainly in the subcontinent, the fear is that it will disappear from Earth if it does not perpetually guard itself.

There is also a sense of historical victimhood in the discourse which sees the Hindu religion as having been suppressed for a millennium since the second battle of Tarain, in which Prithviraj Chauhan was defeated. For the Hindu right, the establishment of the Delhi Sultanate, the dominance of Muslim rule for nearly 600 years, succeeded by Christian imperialism of the British Empire, are events of an unhappy past that continue to cast a shadow on the present. For them, the fact that after partition India emerged as a Hindu majority nation and not a Hindu nation only makes independent India a work in progress. The ultimate goal is a Hindu rashtra.

This narrative was not unfamiliar to the Constituent Assembly struggling to draft a Constitution which would transition an ancient land, emerging from subjugation into a modern nation-state. Loknath Mishra from Orissa speaking in the assembly on December 6, 1948, said:
"Justice demands that the ancient faith and culture of the land should be given a fair deal, if not restored to its legitimate place after a thousand years of suppression… In the present context what can this word ‘propagation’ in article 19 mean? It can only mean paving the way for the complete annihilation of Hindu culture, the Hindu way of life and manners. Islam has declared its hostility to Hindu thought. Christianity has worked out the policy of peaceful penetration by the backdoor on the outskirts of our social life. This is because Hinduism did not accept barricades for its protection. Hinduism is just an integrated vision and a philosophy of life and cosmos, expressed in organised society to live that philosophy in peace and amity. But Hindu generosity has been misused and politics has overrun Hindu culture. Today religion in India serves no higher purpose than collecting ignorance, poverty and ambition under a banner that flies for fanaticism. The aim is political, for in the modern world all is power-politics and the inner man is lost in the dust. Let everybody live as he thinks best but let him not try to swell his number to demand the spoils of political warfare. Let us not raise the question of communal minorities anymore. It is a device to swallow the majority in the long run."

This was said to an assembly where the chairman of the Constitution drafting committee, Dr B R Ambedkar, had as early as 1935 declared: “I was born a Hindu, because I had no choice. I will not die a Hindu, because I do have a choice.” In fact, Ambedkar did exercise this choice many years later. On October 14, 1956, less than two months before his death, Ambedkar converted to Buddhism and then on the same day converted nearly six lakh of his followers.

Propagation and conversion

It was in the midst of this debate that the Constituent Assembly was grappling with the question of the right to propagate religion. It was Dr TT Krishnamchari who explained the formulation best:
"Sir, it does not mean that this right to propagate one’s religion is given to any particular community or to people who follow any particular religion. It is perfectly open to the Hindus and the Arya Samajists to carry on their Suddhi propaganda as it is open to the Christians, the Muslims, the Jains and the Buddhists and to every other religionist, so long as he does it subject to public order, morality and the other conditions that have to be observed in any civilised government. So, it is not a question of taking away anybody’s rights. It is a question of conferring these rights on all the citizens and seeing that these rights are exercised in a manner which will not upset the economy of the country, which will not create disorder and which will not create undue conflict in the minds of the people. That, I feel, is the point that has to be stressed in regard to this particular article."

It was this compromise that was finally carried by the Constituent Assembly. Everyone was free to profess any or no religion, and was free to choose to follow any or no religion, but propagation was subject to safeguards. Thus, while an individual’s right to convert to a new religion was absolute, the right to propagate his chosen religion to another was subject to safeguards of law and order.

This position has been further whittled by a five-judge bench of the Supreme Court, in Rev Stanislaus v Madhya Pradesh, 1977 AIR (SC) 908 delivered during the dying days of the Emergency. The court said that while there was a fundamental right to propagate one’s religion, there was no fundamental right to convert others to one’s own religion. The court said:
"For what the Article grants is not the right to convert another person to one’s own religion, but to transmit or spread one’s religion by an exposition of its tenets. It has to be remembered that Article 25 (1) guarantees “freedom of conscience” to every citizen, and not merely to the followers of one particular religion, and that, in turn, postulates that there is no fundamental right to convert another person to one’s own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the “freedom of conscience” guaranteed to all the citizens of the country alike."

This position of law has held for nearly 40 years. While there can be no ban on a person changing his faith, there can be a ban on others changing it for him, through force, fraud, inducement or any reason other than the purely spiritual.