Freedom of Religion and Right to Conversion
by Justice M.N. Rao*
Cite as : (2003) PL WebJour 19
An incisive study concerning the religious freedom and right to conversion must necessarily begin with what is meant by religion and the contrariety of the perceptions as to the contours of the freedom, the extent of the restrictions on the right to change the religion.
There is no consensus as to the definition of religion. Etymologically, the expression religion is the combination of the two Latin expressions re meaning back and ligare meaning to bind.1 According to Websters Comprehensive Dictionary religion means a belief binding the spiritual nature of man to a super natural being as involving a feeling of dependence and responsibility, together with the feelings and practices which naturally flow from such a belief.
Swami Vivekananda said:
religion as it is generally taught all over the world, is said to be based upon faith and belief and in most cases consists only of different sects of theories and that is the reason why we find all religions quarrelling with one another. These theories are again based upon faith and belief2.
According to sage Aurobindo, the quest of man for God is the foundation for religion and its essential function is the search for God and the finding of God3.
Sir Julian Huxley, a renowned Scientist who synthesized philosophy with science and religion, said that religion is the product of a certain type of interaction between man and his environment.
All the three great religions of our country Hinduism, Islam and Christianity recognize the existence of God. To Christians their religion is a system of faith and worship, to Muslims Islam is a way of life encompassing all aspects of life. Hinduism defies comparison with other religions. It is sui generis. The Supreme Court said: ... Unlike other religions, the Hindu religion does not claim any one Prophet; it does not worship any one God; it does not subscribe any one dogma; it does not believe in any one philosophic concept; it does not follow any one set of religious rites or performances; in fact it does not appear to satisfy the narrow traditional features of any religion or creed. It may broadly be described as a way of life and nothing more4. Although the common understanding about Hinduism is that it is founded on pantheism, it was recognized that the belief in the Supreme being is the foundation on which the entire edifice of Hinduism rests. In the words of Dr Radhakrishnan the main aim of the Hindu faith is to permit image worship as a means to the development of the religious spirit, to the recognition of the Supreme who has His temple in all beings5
Christianity and Islam are explicitly monotheistic. Religions like Buddhism do not concern themselves with the existence or otherwise of the Supreme being. Apart from the division along the religious lines there are many groups which believe in agnosticism and atheism.
Religion, therefore, cannot always be linked with the worship of God. It is grounded on faith and so reason cannot satisfactorily explain its rational basis. Human knowledge being imperfect, Shri Aurobindo believed that the truth of any religion-related concept cannot be explained with the help of reason.6
As every religion is founded upon certain tenets, and beliefs and adheres to certain practices, the question to what extent the freedom of religion should be permitted assumes great relevance and importance in a democratic society founded upon Rule of Law. In a theocratic state law and religion slide into each other and freedom for persons professing a faith other than the state religion is always minimal. They are treated as second class citizens and denied equality in many respects with persons belonging to the state religion. It is only in countries where the notions of Western Democracy have taken roots, the society became open and freedom of religious belief has come to be recognized as an established value. In different democracies this freedom manifests in different dimensions.
Recognition as a human right
Article 18 of the universal declaration of HR declares the freedom of religion in the following terms:
Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practicing, worship and observance.
The freedom to change religion is expressly recognized by this Article. Seven states abstained from voting; and Saudi Arabia was one amongst them. The objection raised by Saudi Arabia was that Article 18 incorporating the freedom to change religion is against the tenets of Islam.7
In order to give effect to the Universal Declaration of Human Rights the member states of the United Nations adopted the following two covenants in 1966:
(1) International Covenant on Economic, Social and Cultural Rights.
(2) International Covenant on Civil and Political Rights.
Article 18 of the Covenant on Civil and Political Rights ensures the right to freedom of thought, conscience and religion. It reads:
Art 18: 1. Everyone shall have the right to freedom of thought, conscience and religion. This right shall include freedom to have or to adopt a religion or belief of his own choice and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.
2. No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice.
3. Freedom to manifest ones religion or beliefs may be subject only to such limitations as are prescribed by law and are necessary to protect public safety, order, health, or morals or the fundamental rights and freedom of others.
4. The States parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of their children in conformity with their own convictions.
The Government of India by its declaration dated 10-4-1979 had accepted the Universal Declaration of Human Rights and the two International Covenants with certain reservations which do not cover the right to freedom of religion.
Article 5(d)(vii) of the International Convention on Elimination of Racial Discrimination (1966) recognized the right to freedom of thought, conscience and religion. Recognizing that the freedom of religion and belief, among other things, also contribute to the attainment of goals of world peace, social justice, friendship among people, the General Assembly of United Nations proclaimed in 1981 The Declaration on the Elimination of all forms of Intolerance and of Discrimination based on Religion. It contains eight articles laying down that there shall be no discrimination whatsoever on the basis of ones religion and that everyone shall have the right to freedom of thought, conscience and religion. It recognizes, by Article 5, the rights of the parents to impart religious education to their children in accordance with their wishes and that the child shall be protected from any form of discrimination on the ground of religion or belief.
By yet another declaration in 1992 the General Assembly of the United Nations reaffirmed the rights of minorities to enjoy their own culture, to profess and practice their own religion.8
Countries in Europe, America and Africa in their regional conventions have recognized the right to freedom of religion.9
In the Constitutions of all democratic countries the right to freedom of conscience and religion has been expressly recognized. It is found in Section 116 of the Australian Constitution, Section 2 of the Canadian Constitution, and Section 4 of the Constitution of Germany.
The European Convention ensuring freedom of conscience and religion applies to the United Kingdom. As the oldest democracy in the world, United Kingdom always has recognized the right to freedom of thought, conscience and religion.
The Constitution of the United States by the First Amendment as far back as 1791 separated religion from the state. It prohibits the Congress from making any law to establish a religion and ordains tolerance of free exercise. The US Supreme Court had occasion to comment on this thus10:
Neither a State nor the Federal Government can set up a church. Neither can pass laws which aid one religion, aid all religions, or prefer one religion over another. Neither can force nor influence a person to go to or to remain away from church against his will or force him to profess a belief or disbelief in any religion. No person can be punished for entertaining or professing religious beliefs or disbeliefs, for church attendance or non-attendance. No tax in any amount, large or small, can be levied to support any religious activities or institutions, whatever they may be called, or whatever form they may adopt to teach or practice religion. Neither a State nor the Federal Government can, openly or secretly, participate in the affairs of any religious organizations or groups and vice versa. In the words of Jefferson, the clause against establishment of religion by law was intended to erect a wall of separation between Church and State.
It is interesting to note how the religious liberty guaranteed by the American Constitution was viewed by the Supreme Court. Firmly ruling in the Minersville School case11 that the refusal to salute the National Flag was not protected by the First Amendment guarantee and that the State Legislature was fully competent to make a law ensuring respect for the National Flag, the American Supreme Court changed that view subsequently, by holding that refusal to salute the flag is within the protection of the First and Fourteenth Amendments and the action of the state in this regard was ultra vires.12
The Republic of Ireland, by its Constitution adopted in 1937, devotes one Article exclusively for religion. It reads:
Art 44: (1) The State acknowledges that the homage of public worship is due to Almighty God. It shall hold His Name in reverence, and shall respect and honour religion.
(2.1) Freedom of conscience and the free profession and practice of religion are, subject to public order and morality, guaranteed to every citizen.
(2.2) The State guarantees not to endow any religion.
(2.3) The State shall not impose any disabilities or make any discrimination on the ground of religious profession, belief or status.
(2.4) Legislation providing State aid for schools shall not discriminate between schools under the management of different religious denominations, nor be such as to effect prejudicially the right of any child to attend a school receiving public money without attending religious instruction at that school.
(2.5) Every religious denomination shall have the right to manage its own affairs, own, acquire and administer property, movable and immovable, and maintain institutions for religious and charitable purposes.
(2.6) The property of any religious denomination or any educational institution shall not be diverted save for necessary works of public utility and on payment of compensation.
Right to freedom of religion is a fundamental right under our Constitution. The concept of religious freedom as incorporated in Articles 25 and 26 of our Constitution was largely based upon Article 44(2) of the Irish Constitution.
Articles 25 to 28 of our Constitution read:
25. Freedom of conscience and free profession, practice and propagation of religion.(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.
(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law
(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;
(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.
Explanation I.The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II.In sub-clause (b) of clause (2), the reference to Hindus shall be construed as including a reference to persons professing the Sikh, Jaina or Buddhist religion, and the reference to Hindu religious institutions shall be construed accordingly.
26. Freedom to manage religious affairs.Subject to public order, morality and health, every religious denomination or any section thereof shall have the right
(a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage it own affairs in matters of religion;
(c) to own and acquire movable and immovable property; and
(d) to administer such property in accordance with law.
27. Freedom as to payment of taxes for promotion of any particular religion.No person shall be compelled to pay any taxes, the proceeds of which are specifically appropriated in payment of expenses for the promotion or maintenance of any particular religion or religious denomination.
28. Freedom as to attendance at religious instruction or religious worship in certain educational institutions.(1) No religious instruction shall be provided in any educational institution wholly maintained out of State funds.
(2) Nothing in clause (1) shall apply to an educational institution which is administered by the State but has been established under any endowment or trust which requires that religious instruction shall be imparted in such institution.
(3) No person attending any educational institution recognised by the State or receiving aid out of State funds shall be required to take part in any religious instruction that may be imparted in such institution or to attend any religious worship that may be conducted in such institution or in any premises attached thereto unless such person or, if such person is a minor, his guardian has given his consent thereto.
Comprehensively, almost all matters concerning religion are covered by Articles 25-30 declare the right of religious minorities to establish and administer educational institutions.
Freedom of religion implies freedom to change religion also. The reasons for conversion are many. History is replete with examples for forcible conversions on a large scale. Conversions also take place either due to allurements or due to the threat of divine displeasure. Illiteracy and ignorance often are the factors which make people cross over from one faith to another. The further impetus for conversions is the poverty and social inequalities including untouchability to which Dalits are subjected to in the Hindu society.
Writing in the Harijan Gandhiji, emphatically, declared his opposition to conversions, and went to the extent of saying: If I had power and could legislate, I should certainly stop all proselytizing13 Gandhiji also added:
It is one thing to preach ones religion to whomsoever may choose to adopt it, another to entice masses and those enticed on being undeceived go back to their old love, their return will give natural joy to those whom they had forsaken14.
Right to conversion connotes individual right of a person to quit one religion and embrace another voluntarily. This kind of change from one religion to another religion must necessarily be in consequence of ones conviction that the religion in which he was born into has not measured up to his expectations, spiritual or rational. Sometimes it may also be the result of losing faith in ones own religion because of the rigidity of its tenets and practices. Sometimes one may even lose total faith in the very concept of the existence of God and turn to Atheism. A change of religion, a consequence of any of the above reasons, falls within the ambit of the Right to Conversion.
On the other hand the existence of the claim to change religion as an abstract right that can be invoked not only by the person changing the religion but also outsiders demanding their right to change the religion of others as Right of Conversion and can be approximated to proselytism.
To the Constituent Assembly fourteen draft articles encompassing fundamental rights and the remedies available for their breaches were referred to the Sub-Committee on fundamental rights headed by Acharya J.B. Kripalani. Article 6 concerned the right to religious and cultural freedom and it read as follows:15
The Right to Religious and Cultural Freedom
(1) All citizens are equally entitled to freedom of conscience and to the right freely to profess and practise religion in a manner compatible with public order, morality or health:
Provided that the economic, financial or political activities associated with religious worship shall not be deemed to be included in the right to profess or practise religion.
(2) All citizens are entitled to cultural freedom, to the use of their mother tongue and the script thereof, and to adopt, study or use any other language and script of their choice.
(3) Citizens belonging to national minorities in a State whether based on religion or language have equal rights with other citizens in forming, controlling and administering at their own expense, charitable, religious and social institutions, schools and other educational establishments with the free use of their language and practice of their religion.
(4) No person may be compelled to pay taxes the proceeds of which are specifically appropriated in payment of religious requirements of any community of which he is not a member.
(5) Religious instruction shall not be compulsory for a member of a community which does not profess such religion.
(6) No person under the age of eighteen shall be free to change his religious persuasion without the permission of his parent or guardian.
(7) 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.
(8) It shall be the duty of every unit to provide, in the public educational system in towns and districts in which a considerable proportion of citizens of other than the language of the unit are residents, adequate facilities for ensuring that in the primary schools the instruction shall be given to the children of such citizens through the medium of their own language.
Nothing in this clause shall be deemed to prevent the unit from making the teaching of the national language in the variant and script of the choice of the pupil obligatory in the schools.
(9) No legislation providing State aid for schools shall discriminate against schools under the management of minorities whether based on religion or language.
(10) Every monument of artistic or historic interest or place of natural interest throughout the Union is guaranteed immunity from spoliation, destruction, removal, disposal or export except under a law of the Union, and shall be preserved and maintained according to the law of the Union.
The Sub-Committee submitted its report to the Chairman on 16-4-1947.
There was no dissent among the members of the Sub-Committee with regard to rights relating to religion incorporated in clauses 16 to 22 of the Sub-Committees report. Article 16 was as follows:16
Rights relating to religion
(16) All person are equally entitled to freedom of conscience, to freedom of religious worship and to freedom to profess religion subject to public order, morality or health and to the other provisions of this Chapter.
Explanation I.The wearing and carrying of kirpans shall be deemed to be included in the profession of the Sikh religion.
Explanation II.The above rights shall not include any economic, financial, political or other secular activities that may be associated with religious worship.
Explanation III.No person shall refuse the performance of civil obligations or duties on the ground that his religion so requires.
When clause 16 came up for consideration before the Advisory Committee an amendment was suggested by the minority Sub-committee to incorporate the right to propagate religion. Jagivan Ram suggested the retention of the original clause as it was without any amendment. K.M. Munshi explained the deference between religious worship and religious practice. Going to temple is religious worship; immersion procession of Ganapati is a religious practice.17 Caution came from Alladi Krishnaswamy Ayyar who said:
We can trust the wisdom of legislatures not to interfere with religious practices, but to give a kind of solemn sanction in a constitutional document to these practices will be perpetuating an evil which will strike at the very foundation of the State.18
The Committee decided to add a new explanation providing that the freedom of religious practice would not debar the State from enacting laws for the purpose of social welfare and reform.
Prof. M. Ratnaswamy, a Christian member wanted the right to propagate as a part of the religious freedom. He said that the word propagate is a well known word; it includes not only preaching but other forms of propaganda made known by modern developments like the use of films, radio, cinema and other things.
Both K.M. Munshi and Alladi Krishnaswamy Ayyar opposed this move. K.M. Munshi feared that even forced conversion might be covered by the right to propagate. If the word propaganda means something more than preaching you must know what it is and therefore I oppose to this introduction of the word propaganda. When the matter was put to vote, the majority favoured to retain the word propagate19.
When the draft Article 19 as settled by the Advisory Committee was taken up by the Constituent Assembly many members had extended unreserved support. The object behind incorporating the clause permitting the right to propagate is not to confer any undue advantage on any community or religion and equally it was not intended to be a disability on any community20.
Shri K.M. Munshi, a member of the Drafting Committee explained thus:
In the present set up that we are now creating under this Constitution, there is a secular State. There is no particular advantage to a member of one community over another; nor is there any political advantage by increasing ones fold. In those circumstances, the word propagate cannot possibly have dangerous implications, which some of the members think that it has.21
Shri Tajamul Husain another member agreed that there should be no religion for a secular State. He said:
As I said, religion is between oneself and his God. Then, honestly profess religion and practise it at home. Do not demonstrate it for the sake of propagating. Do not show to the people that this is your religion for the sake of showing. If you start propagating religion in this country, you will become a nuisance to others. So far it has become a nuisance.
I submit, Sir, that this is a secular State, and a secular state should not have anything to do with religion. So I would request you to leave me alone, to practise and profess my own religion privately
Another member Shri K. Santhanam explained elaborately the intention thus:
Mass conversion was a part of the activities of the Christian Missionaries in this country and great objection has been taken by the people to that. Those who drafted this Constitution have taken care to see that no unlimited right of conversion has been given. People have freedom of conscience and, if any man is converted voluntarily owing to freedom of conscience, then well and good. No restrictions can be placed against it. But if any attempt is made by one religious community or another to have mass conversions through undue influence either by money or by pressure or by other means, the State has every right to regulate such activity. Therefore, I submit to you that this article, as it is, not so much an article ensuring freedom, but toleration toleration for all, irrespective of the religious practice or profession. And this toleration is subject to public order, morality and health.
Therefore, this article has been very carefully drafted and the exceptions and qualifications are as important as the right it confers. Therefore, I think the Article as it stands is entitled to our wholehearted support.23
Shri K.M. Munshi moved an amendment which read thus:
Any conversion from one religion to another of any person brought about by fraud, coercion or undue influence or of a minor under the age of 18 shall not be recognized by law.
After a lot of discussion the matter was again referred to the Advisory Committee. It will be of interest to notice that even earlier when the Advisory Committee discussed the clauses pertaining to restrictions on conversion Dr Shyamaprasad Mukharjee insisted upon the retention of those clauses but Christian members like Frank Antony and M. Ratnaswamy wanted their deletions. Sardar Vallabhai Patel as Chairman of the Advisory committee had expressed the view even then as that matters concerning conversion brought about by undue influence or coercion are fit for legislation but not worthy of incorporation as fundamental rights. He specifically said:
We cannot have a fundamental right for every conceivable thing. We are not legislating.24
Later on when the matter went before the same Advisory Committee consequent upon the reference made to it by the Constituent Assembly, the Advisory Committee in its Supplementary Report submitted to the Constituent Assembly on 25-8-1947 had expressed the view.
It seems to us on further consideration that this clause enunciates a rather obvious doctrine which it is unnecessary to include in the Constitution and we recommend that it be dropped altogether.25
There was discussion on this aspect; whether the clause even after the recommendation by the Advisory Committee should still be incorporated in the Constitution. Certain members like Ananthasayanam Iyengar and R.V. Dhelukar advocated retention of the clause as a fundamental right. Strong and contentious views surfaced, pointing that the absence of a provision in this regard may encourage people to go in for large scale conversion to bring about increase in the population of particular sections so again efforts may be made to further divide this country. 26
Sardar Vallabhai Patel in clear terms expressed there is no difference of opinion on the merits of the case that forcible conversion should not be or cannot be recognized by law. But the same cannot become a justiciable fundamental right. Thereafter the Constituent Assembly adopted the motion that the clause should not be put in the Fundamental Rights part.
We may now examine how the Judiciary has interpreted the right to freedom of religion and conscience. The interference with the management of a Hindu Matt by the Hindu Religious Endowment Board by framing a scheme for the management of the institution was challenged by the Mattathipadi on the ground of violation of Article 19(1)(f) and Article 26. The Madras High Court struck down the scheme and also declared certain sections of the Madras Hindu Religious and Charitable Endowments Act 1951 as ultra vires. On appeal by the Madras Government the whole matter was considered by a seven-Judge Bench in what is popularly called Shirur Mutt case27.
The entire gamut of Articles 25, 26 and 27 was closely examined in this case by Mukherjee, J. who spoke for the unanimous court. The Court did not accept the definition of religion by the US Supreme Court. Stating that Articles 25 and 26 are based mostly upon Article 44 of the Constitution of Eire, Mukherjee, J. explained what is meant by religion.
Religion is certainly a matter of faith with individuals or communities and it is not necessarily theistic. There are well-known religions in India like Buddhism and Jainism which do not believe in God or in any intelligent first cause. A religion undoubtedly has its basis in a system of beliefs or doctrines which are regarded by those who profess that religion as conducive to their spiritual well being, but it would not be correct to say that religion is nothing else but a doctrine or belief. A religion may not only lay down a code of ethical rules for its followers to accept, it might prescribe rituals and observances, ceremonies and modes of worship which are regarded as integral parts of religion, and these forms and observances might extend even to matters of food and dress.28
The words practice of religion in Article 25 protect not only freedom of religious opinion but also acts done in pursuance of a religion. The Australian High Courts view that acts done in pursuance of religious belief are part of religion found favour with our Supreme Court. The regulatory power of the State under clause (2)(a) of Article 25 extends to economic, commercial or political activities even though they are associated with religious practices. The regulatory power in this regard does not authorise the making of a law which takes away the right of administration from a religious denomination altogether and such a law would be violative of Article 26(d) which guarantees the right of every religious denomination to administer its properties in accordance with law. While noticing the comparative constitutional provisions obtaining in the United States and Australia, our Supreme Court said that in the Constitutions of those countries the right to freedom of religion is in unrestricted terms and therefore courts had introduced limitations on the grounds of morality, order and social protection. In the interpretation of our Constitution, therefore, there was no necessity for guidance from foreign precedents since limitations on the right to religious freedom are explicitly engrafted in our Constitution.
The dictionary meaning of the word denomination was accepted by the court for the purpose of Article 26, namely, it is a collection of individuals grouped together under the same name, a religious sect or a body having a common faith and organization and designated by a distinctive name.
Interpreting the rights of religious denominations the Court held (SCR pp. 1028-29) that they enjoy complete autonomy in the matter of deciding as to what rites and ceremonies are essential according to the tenets of the religion they hold and no outside authority has any jurisdiction to interfere with their decisions in such matters. As the Shirur Matt is a public institution the Supreme Court declared that in the public interest some amount of control over the due administration of the endowments and appropriation of their funds was necessary and that the provision in that regard was not violative of any fundamental right.
The rights of religious institutions to manage their affairs and their right to spend the property or income for religious purposes was once again restated by the Supreme Court in Ratilal Panachand Gandhi v. State of Bombay.29
A very interesting question concerning the rights of a Hindu religious denomination Gowda Saraswata Brahmins to manage a temple belonging to the denomination without any legislative hindrance came up for consideration before the Constitution Bench in Venkataramana Devaru case.30
The temple in that case was subjected to a scheme framed under Section 92 CPC. After the Madras Legislature enacted the Madras Temple Entry Authorization Act with the object of removing the disability of Harijans from entering into Hindu public temples, the trustees of Venkataramana temple sought a declaration by filing a suit that the Act had no application as the temple was a denominational one having been founded exclusively for the Gowda Saraswata Brahmins and that the law was violative of Article 26(b) of the Constitution. When the suit was dismissed the trustees went in appeal to the High Court which passed a limited decree reserving the right of the trustees to exclude the general public during certain ceremonies in which Gowda Saraswata Brahmins alone were entitled to participate. On further appeal to the Supreme Court the scope and ambit of Articles 25 and 26 vis-à-vis the rights of denominational institutions fell for consideration.
Clause 25(1) guarantees freedom of conscience and the right to profess, practice and propagate religion subject to public order, morality and health. Sub-clause (b) of clause 2 of Article 25 enables the state to enact laws providing for social welfare and reform or the throwing open of Hindu religious institutions of public character to all sections of Hindus and clause (b) of Article 26 guarantees to every religious denomination to manage its own affairs in matters of religion.
The delicate issue for resolution was whether the power of the state to enact a law providing for entry into temples of public character for all classes or sections of Hindus will prevail over the rights of the individuals and denominations under clause (1) of Article 25 and clause (b) of Article 26.
Justice Venkatarama Iyyer who spoke for the unanimous court highlighted the distinction between the rights of individuals and denominations flowing from Article 25(1) and the wider right conferred on the State under Article 25(2)(b). Applying the rule of harmonious construction, the learned Judge held that Article 26(b) which confers the right on denominational institutions to manage their affairs is subject to the right of the State under Article 25(2)(b). In that view the learned Judge concluded that the rights of Gowda Saraswata Brahmins to participate in certain ceremonies are denominational rights and therefore the High Court was correct in granting a decree to that limited extent. The right claimed by the Gowda Saraswata to exclude others from entering the temple was rejected.
The great delicate balance struck by the court is worthy of high appreciation especially after the court found that matters of religion in Article 26(b) include even practices which are regarded by the community as part of its religion and that Article 26(b) included the right to exclude persons who are not entitled to participate in the worship according to the tenets of the institution. Resolving the seemingly irreconcilable points of view in order to achieve the objective of the law, especially constitutional law, calls for great judicial craftsmanship and that it is found in admirable measure in the judgment.
The law was further made clear in Durgah Committee case.31 While stating that the four clauses of Article 26 constitute the fundamental freedoms guaranteed to every religious denomination or any section thereof to manage its own affairs, Gajendragadkar, J. speaking for the Constitution bench struck a note of caution with reference to what was decided in Venkataramana Devaru case30 as to what practices may be construed by a religious denomination as part of its religion. In order to treat any practices as a part of religion, they must be regarded by that religion as its essential and integral part; otherwise even purely secular practices which are not an essential or an integral part of religion are apt to be clothed with a religious form and may make a claim for being treated as religious practices within the meaning of Article 26.... in other words, the protection must be confined to such religious practices as they are an essential and an integral part of it and no other. (SCR pp. 411-12)
Khadims and Sajjadanashin are, two categories of persons, among others, associated with the Durgah of the Saint Quaja Moin-ud-din Chisti of Ajmer.
(Khadims those who perform certain services at the shrine like opening of the gates in the morning, reciting the sacred verses in praise of the Saint and offering prayers at the tomb.
Sajjadanashin descendents of the Saint Quaja Moin-ud-din Chisti and they perform certain spiritual functions apart from being Muthavalli.)
They challenged the Constitutionality of Durgah Quaja Saheb Act 36 of 1955 by which the management was vested in a committee. The rights claimed by the above two categories of persons to retain the offerings made by the pilgrims were negatived by the court. While assuming that Chisti order of Soofies constitutes a religious denomination, the court held that the right to administer the properties had never been vested in the denomination in respect of the Durgah Endowment. The offerings made by the pilgrims never belonged to Khadims and Sajjadashin.
The next important ruling of the Supreme Court on the denominational rights was rendered in 1983 in S.P. Mittal v. Union of India.32
All the five judges constituting the Bench agreed that the Auroville (Emergency Provisions) Act 1980 was not violative of Articles 25 and 26.
The majority opinion delivered by Ranganath Misra, J. lays down that religious denomination in Article 26 must satisfy three conditions: (SCC p. 85, para 80)
(i) It must be a collection of individuals who have a system of beliefs or doctrines which they regard as conducive to their spiritual well being, that is, a common faith;
(ii) common organisation; and
(iii) designation by a distinctive name.
Examining the question on the basis of above three conditions and the repeated utterings of Shri Aurbindo and the Mother that neither the society nor Auroville were religious institutions, the majority judgment held that neither the society nor Auroville constitute a religious denomination and the teachings of Aurbindo only represented his philosophy and not a religion.
A far reaching decision rendered by the Supreme Court concerning the rights of a religious denomination to excommunicate its members resulting in their losing certain civil rights was rendered by a Constitution Bench of the Supreme Court in 1962.33
The Bombay Prevention of Excommunication Act 1949 declared that no excommunication of a member of any community shall be valid notwithstanding anything contained in any law, custom or usage to the contrary. According to the Preamble the enactment was made in public interest to prevent the practice of excommunication prevalent in certain communities. The definition of community included religious denomination also. The head of the Dawoodi Bohra Community challenged the constitutionality of the Act on the ground that it was violative of Articles 25 and 26.
Of the five judges constituting the Bench, Judges ruled that the Act was violative of Articles 25 and 26 and therefore void. The majority opinion is contained in the two separate but concurring judgments rendered by Das Gupta and Ayyangar, JJ.
While admitting that excommunication results in adversely affecting certain civil rights, Das Gupta J. opined that the rights conferred by Article 26(b) are not subject to preservation of civil rights but subject only to public order, morality and health. The fact that civil rights of a person are affected because of Article 26(b) is of no consequence and that excommunication is not prejudicial to public order, morality and health.
Ayyangar, J. in his separate but concurrent opinion held (SCR p. 553) the view that Article 25(2)(b) enabling the State to make legislation to provide for social welfare and reform was not intended to enable the legislature to reform, a religion out of existence or identity.
The learned Chief Justice declared (SCR p. 525-26) that though the Act may have its repercussions on the religious aspect of excommunication, insofar as it protects the civil rights of the members of the community it has not gone beyond the provisions of Article 25(2)(b). Highlighting the adverse consequence of excommunication, namely, denial of the right to use the communal mosque, communal burial ground, loss of contacts social or religious, Chief Justice Sinha declared (SCR p. 527) that the Act was intended to do away with all that mischief of treating a human being as a pariah, and of depriving him of his human dignity and of his right to follow the dictates of his own conscience. The Act, he concluded, therefore, fulfills the individual liberty of conscience guaranteed by Article 25(1).
The question whether by legislation the traditional right to have only persons belonging to a particular castes as temple priests could be taken away came for examination in Seshammal v. State of T.N.34
Section 55 of the Tamil Nadu Hindu Religious and Charitable Endowments Act 1959 conferred power on the trustee of a temple to appoint office holders or servants of the temple and where the office or service is hereditary the person next in the line of succession shall be entitled to succeed. An amendment was made to this in 1970 by which the right to appoint an hereditary basis was taken away. This was challenged by certain Archakas and Mattathipadis of Saivite and Vaishnatvite temples by a writ petition in the Supreme Court.
The question before the Supreme Court was whether appointment of persons who are not well versed in the mantra, vedas etc. as laid down in Agamasastras as priests and Archakas would undermine the freedom of religion as guaranteed by Articles 25(1) and 26(b). The court speaking through Palekar, J. ruled that: In a Saivite or a Vaishnavite temple the appointment of the archaka will have to be made from a specified denomination, sect or group in accordance with the directions of the agamas.35 On the question whether it was permissible to dispense with the hereditary principle while making appointments from the specified denomination, the court ruled that:
[T]he appointment of an archaka is a secular act and the fact that in some temples the hereditary principle was followed in making the appointment would not make the successive appointments anything but secular.36
The principle enunciated in Seshammal case34 that the archakas and priests are temple servants and that matters concerning their appointment, emoluments and the benefits fall within the ambit of secular activities susceptible to interference by the state was not departed from in the subsequent ruling.37
In respect of appointment of temple priests if there is no mandate in the religious texts, scriptures and shastras that only a person belonging to Brahmin caste alone should be appointed as priests, it was held by the Supreme Court that persons belonging to other castes also could be appointed provided they are proficient in performing the archanas, temple rituals, pooja and all other observances necessary for the priesthood including the requirement of wearing the scared thread.38
Justice Doraiswamy Raju who spoke for the court recorded a significant finding: Nothing was brought on record to substantiate the claim that only Malayala Brahmins would be Santhikaran (priest) in respect of the Siva Temple or in this particular temple.39 The stand taken by the State of Kerala was that if the claims for appointment are restricted only to Malayala Brahmins the same would be violative of Articles 14, 15 and 16. The following passage in the judgment correctly reflects Constitutional position:
17. Where a temple has been constructed and consecrated as per agamas, it is considered necessary to perform the daily rituals, poojas and recitations as required to maintain the sanctity of the idol and it is not that in respect of any and every temple any such uniform rigour of rituals can be sought to be enforced, dehors its origin, the manner of construction or method of consecration. No doubt only a qualified person well versed and properly trained for the purpose alone can perform poojas in the temple since he has not only to enter into the sanctum sanctorum but also touch the idol installed therein. It therefore goes without saying that what is required and expected of one to perform the rituals and conduct poojas is to know the rituals to be performed and mantras, as necessary, to be recited for the particular deity and the method of worship ordained or fixed therefor. For example, in Saivite temples or Vaishnavite temples, only a person who learnt the necessary rites and mantras conducive to be performed and recited in the respective temples and appropriate to the worship of the particular deity could be engaged as an archaka. If traditionally or conventionally, in any temple, all along a Brahmin alone was conducting poojas or performing the job of Santhikaran, it may not be because a person other than the Brahmin is prohibited from doing so because he is not a Brahmin, but those others were not in a position and, as a matter of fact, were prohibited from learning, reciting or mastering Vedic literature, rites or performance of rituals and wearing sacred thread by getting initiated into the order and thereby acquire the right to perform homa and ritualistic forms of worship in public or private temples.40
Conversion from one religion to another entails several legal consequences. It affects succession, marital status and also right to seek elective office. Insofar as marriage is concerned, divorce can be sought on the ground that the spouse has changed the religion.41 A Hindu cannot after conversion to Islam contract a second marriage under Muslim Law. He would be guilty of offence under Section 494 IPC. This principal was again affirmed in Salra Mudgal case.42
The right to contest elections is lost sometimes if the person who changed the religion happened to be a member of Scheduled Caste or Scheduled Tribe in whose favour reservations exist.43 Same is the consequence with regard to appointments to public offences.
Appeal on the ground of religion to attract votes entails disqualification. Mere mention of religion in election speeches is not forbidden. One can even allege discriminatory practices qua religion and promise redressal. But none can appeal for votes on the ground of religion or appeal for votes for any candidate on the ground of religion or appeal to vote on the ground of religion. The dividing line between the exercise to the right to freedom of religion and its curtailment is thus drawn. It is felt that the dividing line is too thin to admit any definite delineation to where the freedom ends and restrictions begin.44
In the year 1967-1968 two states, Madhya Pradesh and Orissa enacted laws prohibiting certain types of conversions. The Madhya Pradesh Act called the Madhya Pradesh Dharma Swathantra Adhiniyam came into force on 21-10-1968 and the Orissa Act called The Orissa Freedom of Religion Act came into force on 1-11-1968. The Madhya Pradesh Act was enacted pursuant to a report of a fact finding commission headed by Justice Neyogi, a former Chief Justice.
Both the Acts contain similar provisions except in one respect. In the M.P. Act by Section 5 an obligation was cast upon the person converting another to intimate the fact to the District Magistrate and the rules prescribed the form which requires the details to be furnished as to the name of the convert, his address, age, occupation and whether he belongs to Scheduled Caste or Scheduled Tribe. The date and place of conversion and the address of the house where the conversion ceremony had taken place are also required to be stated. Both the Acts by Section 3 prohibit forcible conversion brought about by use of force, allurement or by any fraudulent means.
Conversion is defined as renouncing one religion and adopting another. Force is defined as including show of force or threat of injury of any kind including threat of divine displeasure.
Section 4 makes the offence punishable with imprisonment to a term extending one year or with fine which may extend to five thousand rupees. If the offence is committed in respect of a minor, woman or a person belonging to a Scheduled Caste or a Scheduled Tribe the punishment prescribed is two years and fine of ten thousand rupees. Under both the Acts the offences are cognizable and the sanction of the District Magistrate or any officer not below the rank of Sub-Divisional Magistrate authorised by him is a necessary pre-condition for initiating prosecution.
When the constitutionality of both the Acts came up for consideration before the respective High Courts the Orissa Act was struck down by a Division Bench consisting of R.N. Misra and K.B. Panda, JJ.45
One of the objections raised in the Orissa High Court was that the words force, fraud or inducement have been given extended meanings other than what were assigned to them in the Indian Penal Code (Sections 349,25,366A, 7,415) and this has resulted in interference with the Christian religion. Threat of divine displeasure or social excommunication constitute the extention of the concept of force. It was also argued that people from the downtrodden sections of the society ordinarily take to Christianity as an escape. The court rejected the contention and held that the restriction is covered by the limitation incorporated in Article 25(1). On the question of inducement the court accepted the submission that even an intangible benefit like invoking the blessings of the Lord or by His grace your soul shall be elevated may come under the definition of inducement.
It was held by the court that the definition is capable of covering some of the methods of proselytizing and though the concept of inducement can be a matter referable to morality, the wide definition is indeed open to reasonable objection on the ground that it surpasses the field of morality. The conclusions drawn by the Division Bench are as follows:
(1) Article 25(1) guarantees propagation of religion and conversion is a part of the Christian religion.
(2) Prohibition of conversion by force or by fraud as defined by the Act would be covered by the limitation subject to which the right is guaranteed under Article 25(1).
(3) The definition of the term inducement is vague and many proselytizing activities may be covered by the definition and the restriction in Article 25(1) cannot be said to cover the wide definition.
(4) The State Legislature has no power to enact the impugned legislation which in pith and substance is a law relating to religion. Entry 1 of either List II or List III does not authorise the impugned legislation.
(5) Entry 97 of List I applies.
On the other hand, the M.P. High Court reached the opposite conclusion and upheld the Act. Interpreting Article 25(1) the court held (AIR p. 166, para 10) that the freedom of religion is not a monopoly of a single individual, but the freedom is to be enjoyed by a person commensurate with similar freedom to all other individuals.46 Penalization on conversion by force, fraud or allurement would not fall within the ambit of Article 25(1) and so declaring the court sustained the constitutionality observing the Act, in our opinion, guarantees equality of religious freedom to all much less can it be said to encroach upon the religious freedom of any particular individual47.
The court viewed the matter from the point of public order in respect of which the State is competent to legislate under Entry I, List II of Seventh Schedule. The M.P. High Court did not agree with the views of the Orissa High Court.
Freedom of religion in the words of the court as liberty cannot be construed to be a license, so also freedom of religion cannot be construed to be the right of an individual to encroach upon similar freedoms of other individuals by questionable methods. It is only from this point of view that the State Legislature has prohibited conversion by practicing force, fraud or by offer of allurement.
Appeals were preferred against both the judgments and a Constitution Bench of the Supreme Court considered the question and sustained the validity of both the Acts.48
Chief Justice A.N. Ray who spoke for the court formulated two questions: (1) whether the two Acts were violative of Article 25(1), and (2) whether the State Legislatures were competent to enact them. Explaining the amplitude of the right under Article 25(1) he held 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 ones 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 alike49.
Propagation of religious views for the edification of others as held in Ratilal case29 was restated to be the correct scope of Article 25(1).
On the second question relating to legislative competence, the judgment rests upon the premise that the Acts are intended to deal with public order since they seek to avoid disturbances to the public order.
The reasoning of the Supreme Court thus fully approves the views of the M.P. High Court. The judgment proceeds on two basic postulates, namely, that the right to convert another person is not part of freedom of conscience guaranteed by Article 25(1) and that forcible conversions result in the disturbance of public order.
There is no reference to the debates in the Constituent Assembly and perhaps that is due to the fact that no argument was advanced that the inclusion of the specific right to propagate and the deliberate dropping of provision concerning conversion denudes the power of the legislature to make any law concerning conversions. Had such a plea been raised, in all probability the court would have referred to the Constituent Assembly debates on freedom of religion.
The present controversy has suddenly surfaced because of the law enacted by the Legislature of the State of Tamil Nadu entitled Tamil Nadu Prohibition of Forcible Conversion of Religion Act 2002 which came into force on 5-10-2002. The Act is similar to the M.P. and Orissa Acts.
Criticism as to the laws concerning conversion is mainly based upon:
- (1) The ordinary law of the land as contained in the Indian Penal Code is sufficient.
- (2) Right of conversion proselytism is part of certain faiths like Christianity and Islam
- (3) The Constituent Assembly has dropped the proposal to incorporate any provision prohibiting conversions.
- (4) The legislation is directed against curbing the activities of the minority religions especially in regard to conversions.
The criticism appears to be unsound and uninformed. There is no basis for the apprehension expressed by the religious leaders that the minority religions are the only targets.
The existing law as contained in the Indian Penal Code does not provide for situations contemplated in the anti-conversion laws. The Indian Penal Code contains an exlusive chapter concerning offences relating to religion. The six sections comprising that chapter and two other Sections 153-A and 153-B do not in any way relate to conversions brought about by force, fraud or inducement. The Constituent Assembly debates clearly point out that Muslim members whose religion is the largest minority religion 15% of the total population very much wanted the incorporation of anti-conversion provisions in the Constitution. Even some Christian Members did not oppose prohibition of conversions brought about by fraud or inducement. Some Christian members felt that minors should be given the liberty to change the religion. It is difficult by any standards of legal reasoning or from the standpoint of protection of family as a social unit, to support the view that minors should be free to convert. The mental development of the minor, the perceptions about religion, the bonds that unite the members of the family are factors that militate against such a view. A minor is forbidden by law to enter into any binding contract but he can be a beneficiary of any contract. Hence there is no justification to infer that minors volition to change his religion would be to his benefit. It should be left to the minor to ponder over serious issues like change of religion and take a decision after attaining majority.
It is true that large segments of Hindu population because of its hierarchical structure suffer from illiteracy, poverty, ignorance and social disabilities including untouchability. If they voluntarily decide to renounce the Hindu faith and embrace another religion no law prohibits that; indeed there can be no law which can take away such a right from them. But if they fall victims to monetary allurements or inducement of any nature in the form of immediate material gain the same cannot be said to be a genuine change of religion responding to the call of the conscience.
The present anti-conversion laws have a built-in safe-guard; the District Magistrate or an officer not below the rank of Sub-Divisional Magistrate had to accord sanction for prosecution. It is reasonable to infer that before granting permission the facts will be ascertained. The possibility of misuse cannot be a ground to say that the law is bad.
Proselytization is not confined only to Christianity and Islam. Hinduism also accepts conversions into its fold. This was judicially recognized. Hardly there is any religion in the world now which bars strangers into its fold. The percentage of Christians after almost 2000 years of the entry of Christianity into this country is 2.5. Muslims constitute 15 per cent of the total population. If atrocities on Dalits and other socially disabled castes continue and if Hinduism does not change its hierarchical approach based upon birth there is a real risk of people belonging to the depressed classes voluntarily embracing other faiths. No law, no legislation and no constitutional provision can stop it. The protagonists of Hinduism should realise this. The dropping of the anti-conversion provisions by the Constituent Assembly was only to enable the legislature to enact laws in that regard. It was not a license given to any religion to indulge in conversions by resorting to fraud, force, inducement or coercion. All religions in this country have a right to propagate their faith and if outsiders voluntarily embrace their faith no violation of law is involved. The reasoning given by the Supreme Court upholding the M.P. and Orissa Acts equally applies to the Tamil Nadu Act also.
Even a cursory study of the progress of Hinduism, the depletion of its numbers because of the conversion of large segments belonging to the lower social order convert into other faiths in search of social equality and human dignity brings to light the sad reality that even in the new faiths the converts could not be integrated. There was no real assimilation. The conversions could not wipe out their birth marks. Their descendents in the new faith are not treated as equals. The curse of caste system has entered the other faiths also. This is evident from the recognition of certain classes of people among Muslims and Christians as backward classes50, the test was for the determination of backwardness being social and educational backwardness.
Criticism unrelated to facts lacks credibility. Highly emotive issues cannot be metamorphosed into Constitutional questions ignoring the existing realities. When the baser instincts of people are aroused social integration becomes a distant dream. Divisive tendencies mainly based upon religion and caste had surfaced long ago in our society. Indiscriminate suspicion and distrust springing from sectarian loyalties and considerations will further damage the social fabric. As far as possible religion should be delinked from all political activity. What is political activity poses the biggest problem. If politicians think that religion is intertwined with politics, no solution is possible. Unfortunately, demands coming up from various sections for preservation and retention of separate identity, to securing special rights based upon religion, and special benefits and advantages labelled at political and civil rights in the guise to claiming social integration are all factors endangering the social stability. Exclusivity for securing political advantages is subversive of social homogeneity. If all sections do not feel a sense of belonging to the Indian nation, it is impossible for the country to achieve progress in any field.