Right to Convert Under the Right to Freedom of Religion in India
Karl Marx, in his Contribution to the Critique of Hegel’s Philosophy of Right, famously described religion as the “opium of the people.” In Marx’s time, this metaphor carried a positive connotation, likening religion to a pain-numbing drug, similar to morphine. Religion provides solace and serves as a moral compass, guiding individuals towards inner peace. Recognizing its fundamental role in human life, liberal democracies worldwide enshrine the right to freedom of religion. In India, this essential freedom is protected under Article 25 of the Indian Constitution.
Article 25: The Constituent Assembly Debates
During the debates on Article 25 of the Indian Constitution in the Constituent Assembly, there was significant discussion regarding the implications of the right to “propagate” religion, particularly concerning the potential for forced conversions.
KT Shah, a member of the Constituent Assembly, expressed strong opposition to this right. He argued that the term “propagate” could facilitate forced conversions, especially in environments where individuals are vulnerable to influence, such as schools, colleges, hospitals, and other public institutions. To prevent this, Shah proposed adding a proviso to Article 19(1) to explicitly prohibit religious propaganda intended to convert individuals in these settings.
In contrast, LK Maitra defended the inclusion of the right to propagate religion. He emphasized that even in a secular state, the freedom to share religious beliefs is essential, especially in an era marked by widespread irreligiosity. Maitra argued that the propagation of religion need not involve coercion or force; it could be done through peaceful means such as exposition, illustration, and persuasion. He believed that this freedom was necessary to restore and uphold moral values and should remain protected by law.
KM Munshi, a member of the Constituent Assembly’s Drafting Committee, also weighed in on this debate. Munshi famously stated that the term “propagate” in Article 25 should be understood in a straightforward manner. He clarified that it is intended to mean the right to spread one’s religious beliefs and opinions peacefully, without implying any form of coercion or compulsion.
Thus, while KT Shah highlighted the risks associated with the right to propagate in terms of forced conversions, LK Maitra and KM Munshi underscored the importance of this right for the free expression and sharing of religious beliefs, provided it is exercised without coercion As long as religion exists, converting by one’s own conscience should be acknowledged. The word “propagate” in this context is not as controversial as some believe and does not have dangerous implications (C.A.D. Vol. 7 pg. 837).
The current version of Article 25 (1) reflects the argument accepted by the Constituent Assembly of India. It reads:
“Everyone has the right to freedom of conscience and the right to freely profess, practice, and spread their religion, subject to public order, morality, health, and other provisions of this Part.
To Convert or Not to Convert: The Dilemma
Anti-conversion laws have been a topic of heated debate, especially with Karnataka planning to reverse its prohibition on religious conversions. The controversy over the constitutionality of such laws has a long history.
One of the earliest instances is the Raigarh Anti-Conversion Act of 1937, aimed at preventing Christian missionaries from proselytizing. Similar laws followed, such as the Surguja State Apostasy Act of 1942 and the Udaipur State Anti-Conversion Act of 1946.
After India gained independence, many states enacted anti-conversion laws, which were frequently challenged in court. Two significant events shaped the judicial response to these issues.
In 1967, the Madhya Pradesh legislature passed the Madhya Pradesh Dharma Swatantrata Adhiniyam, and in 1968, Orissa passed the Orissa Freedom of Religion Act. Both laws prohibited religious conversions achieved through force, allurement, or fraudulent means.
The Madhya Pradesh High Court upheld their state’s law in Rev. Stanislaus vs. State of MP, ruling that penalizing forced, fraudulent, or alluring conversions did not violate Article 25 of the Constitution, which guarantees religious freedom.
Conversely, the Orissa High Court, in Yulitha Hyde vs. State of Orissa, found the term “inducement” too vague and ruled that the state legislature lacked the authority to enact laws concerning religion under Article 25.
The Supreme Court of India finally addressed the issue in 1977 in the case of Rev. Stanislaus vs. State of MP, aiming to resolve the differing judicial opinions.
Rev. Stanislaus vs State of MP (1977 SCR 611)
Rev. Stanislaus, a Christian priest from Madhya Pradesh, challenged the Madhya Pradesh Dharma Swatantrata Adhiniyam of 1967. He argued that the state legislature was not authorized to make such a law and that it violated Article 25 of the Constitution. The Madhya Pradesh High Court upheld the law, dismissing his petition.
The case was then brought to the Supreme Court of India. Justice AN Ray examined the word “propagate” using definitions from the Shorter Oxford Dictionary and the Century Dictionary. These definitions described “propagate” as spreading or promoting beliefs from person to person or place to place.
Justice Ray concluded that Article 25 of the Constitution allows individuals to promote or share their religious beliefs but does not include the right to convert others to one’s religion. He argued that trying to convert someone infringes on the “freedom of conscience” guaranteed to all citizens under Article 25(1).
The Supreme Court’s decision established that while people can share their religious beliefs, they do not have a fundamental right to convert others. This interpretation remains the law: freedom of religion does not include the right to convert someone else.
Anatomy of the Judgment: Academic Criticism
In his commentary on the Indian Constitution, HM Seervai criticized the Supreme Court’s judgment in the Rev. Stanislaus case. He described the judgment as “clearly wrong” and “productive of the greatest public mischief,” arguing that it should be overruled.
Seervai found the reasoning of Justice AN Ray dissatisfactory, asserting that freedom of religion is not limited to the religion one is born into. He emphasized that freedom of conscience implies that people can choose their religion.
Seervai wrote that the right to propagate religion is essential to freedom of choice, as choice requires knowledge and the act of will. He argued that without knowing the available options, one cannot make a choice. Propagating religion means spreading knowledge and fostering intellectual and moral conviction, which can lead to conversion. He maintained that conversion does not interfere with freedom of conscience but fulfills it.
Despite Seervai’s criticisms, the Stanislaus judgment remains a precedent 46 years later.
Conclusion
In its substance, the Stanislaus judgement overlooks the intention of the makers of the Constitution of India. It also stands against the views of our freedom fighters. MK Gandhi, in 1940, famously said:
“No legal hindrance can be put in the way of any Christian or of anybody preaching for the acceptance of his doctrine”.
Gandhi, as a lawyer, would have lost the Stanislaus case given the line of reasoning adopted in the Stanislaus judgement.
Khushboo Handa (legal intern)