Anti-Conversion Laws: Challenges to Secularism and Fundamental Rights

SPECIAL ARTICLEEconomic & Political Weekly January 12, 200863Anti-Conversion Laws: Challenges to Secularism and Fundamental RightsSouth Asia Human Rights Documentation CentreAnti-conversion legislations, euphemistically called Freedom of Religion laws, adopted by several Indian states have been the subject of much scrutiny. An analysis of the legislations reveals that the language used is often extraordinarily broad and vague, posing serious challenges to religious freedom as guaranteed by the Indian Constitution and enshrined in international human rights instruments.On December 19, 2006, the state legislative assembly of Himachal Pradesh passed the Himachal Pradesh Free-dom of Religion Bill 2006. The state government claimed it was intended to prevent religious “conversions” carried out by the use of force or inducement or by fraudulent means.1 Passed into law on February 18, 2007, the act is modelled on existing anti-conversion laws in other Indian states. Its adoption is parti-cularly ironic in view of the fact that the state government is led by the Congress Party, which has consistently sought to highlight its “secular” credentials. Other states with acts of the same nature include Orissa,2 Madhya Pradesh,3 Chhattisgarh,4 Arunachal Pradesh5 and Gujarat.6 Of these, Orissa and Madhya Pradesh have gone on to frame rules under their respective acts, while the Himachal Pradesh cabinet recently gave its approval to this exercise.7 The state of Chhattis-garh, formed in 2000, inherited Madhya Pradesh’s act and rules, and passed an amendment in 2006.8 Earlier in 2006, the state legis-lature of Rajasthan passed the Rajasthan Freedom of Religion Bill 2006 but assent to the bill was withheld by the then state governor, Pratibha Patil. After having languished for a year, the Rajasthan bill was forwarded in June 2007 by Patil to the then president, A P J Abdul Kalam, for his approval.9 A similar law was repealed in 2004 in Tamil Nadu, while one is expected in Jharkhand.10 1 Imprecise and Uncertain TerminologyThere is undoubtedly no ground to justify conversions brought about by violence or other equally illegitimate means of coercion. These violate the principle of freedom of conscience guaranteed by the Indian Constitution and prescribed in international human rights norms. However, the language adopted by the anti-conversion legislations11 goes far beyond the protection of this right, and indeed, in no way appears to be motivated by the desire to protect the freedom of conscience. Instead, the danger of “discriminatory abuse in their application” is very real.12 The terminology used by these legislations transforms them from their purported role as protectors of constitutional rights into violators of these very guarantees.An examination of these legislations becomes imperative as India continues to struggle with its constitutional mandate of secularism in an environment of inter-religious tension.1.1 The Definition of ConversionThe definition of conversion within the Himachal Pradesh, Orissa, Madhya Pradesh and Chhattisgarh acts is as follows: “ ‘Conver-sion’ means renouncing one religion and adopting another”.13The South Asia Human Rights Documentation Centre (hrdc_online@hotmail.com) researches and analyses human rights issues and trends.

SPECIAL ARTICLEjanuary 12, 2008 Economic & Political Weekly64The wording of the Gujarat act is slightly different, providing that: “ ‘Convert’ means to make one person renounce one religion and adopt another religion”.14A recent attempt by the Gujarat state legislature to amend this definition by excluding conversions from one denomination to another from its scope was stalled by the Gujarat governor Naval Kishore Sharma. While returning the amendment bill to the legislature, the governor stated that the explanations it contained “stipulating that the Jains and Buddhists… be construed as denominations of the Hindu religion, Shias and Sunnis of the Muslim religion and Catholics and Protestants of the Christian religion” were particularly objectionable.15 The Jain community had been especially vociferous in protesting against the amend-ment’s attempt to bracket them as Hindus.16It is interesting to note that in the Rajasthan bill and the Arunachal and Chhattisgarh acts, the definition of conversion ex-cludes re-conversions to native faiths. The Rajasthan bill applies the term conversion only to renunciations of one’s “own religion”, defining conversion as: “…renouncing one’s own religion and adopting another”.17 Appended to this definition is an explana-tion that defines “own religion” as “[the] religion of one’s forefathers”.18Paralleling this is the Arunachal Pradesh act’s definition of conversion as: “renouncing an indigenous faith and adopting another faith or religion”.19 “Indigenous faith” in this context has been defined as “such religions, beliefs and practices including rites, rituals, festivals, observances, performances, abstinence, customs as have been found sanctioned, approved, performed by the indigenous communities of Arunachal Pradesh from the time these communities have been known”. 20Similarly, the amended Chhattisgarh act excludes “returning to one’s forefather’s religion or his original religion” from the definition of conversion.21 The Chhattisgarh governor E S L Narasimhan has reportedly objected to this proviso as also to the clause requiring aspiring converts to seek permission from the district authorities.22Given that Hindus have consistently been more than 80 per cent of India’s population, it is reasonable to conclude that the “religion of one’s forefathers” is Hinduism in a vast majority of cases. The exclusion is a pointer to the motivation behind the legislations – while, in principle, they seek to prevent conver-sions, the potential re-conversion of Hindu “apostates” back to Hinduism is apparently acceptable, indeed, favourable. 1.2 The Prohibition of Conversion All of the current anti-conversion legislations prohibit acts of con-version in the following terms: “No person shall convert or attempt to convert, either directly or otherwise, any person from one reli-gion to another by use of force or by inducement or by any fraudu-lent means, nor shall any person abet any such conversion”.23Political supporters of this legislative prohibition include the Hindu nationalist Bharatiya Janata Party (BJP), the Vishwa Hindu Parishad (VHP), and the Rashtriya Swayamsevak Sangh (RSS)– collectively the “Sangh parivar”. The BJP president Rajnath Singh has gone so far as to instruct all BJP-led state governments to pass such laws in their territories.24 Supporters of anti-conversion legislation argue that these laws are intended to prohibit conversions or attempted conversions that are effectuated by force, inducement or fraud. They argue that as present instances of such conversions are high, these laws are designed to criminalise such activities.25 Anti-conversion laws are therefore presented as necessary safeguards for the pro-tection of religious freedom, a right guaranteed both constitu-tionally and in international human rights instruments.Critics however contend that the laws are motivated by an in-secure pro-Hindu nationalism that is antagonistic to religious mi-norities. Particularly objectionable is the broad language used by the laws, which creates uncertainty about which activities are prohibited and fosters concerns that government officials may take advantage of the loose terminology to discriminate against religious minorities. Both supporters and opponents of the anti-conversion laws use the preservation of religious freedom as justification for their positions. This debate assumes more significance when placed in the context of contemporary instances of religiously motivated violence. 1.3 The Definition of Force All the legislations share a common definition of the term “force” with reference to forced conversions, stating that: “ ‘Force’ shall include show of force or threat of injury or threat of divine displeasure or social ex-communication”.26It is uncertain how this definition will operate in practice. For example, if a religion teaches that non-adherents risk divine dis-pleasure (as with Christianity, Islam and Judaism), the act of im-parting this article of faith may constitute an act of force under anti-conversion legislation. This has problematic ramifications on the freedom to change religion as discussed later in this article. As eminent legal scholar H M Seervai pointed out in his discussion of the right to propagate, “[a] person cannot choose if he does not know what choices are open to him (sic)”.27 The overly broad definition of force unjustifiably impinges on interactions between potential converts and those seeking to bring about their conversion. The latter are rendered unable to inform the former of what their religion teaches about non-adherents, limit-ing the information that can be made available to the potential convert and thereby impinging on the meaningful exercise of his or her freedom to change religion. 1.4 Allurement and InducementAccording to the Rajasthan bill “ ‘[a]llurement’ means offer of any temptation in the form of (1) any gift or gratification, either in cash or in kind; (2) grant of any material benefit, either monetary or otherwise”.28 The Madhya Pradesh, Chhattisgarh and Gujarat acts rely on an identical definition of allurement.29 The Himachal Pradesh, Orissa and Arunachal Pradesh acts, in contrast, rely on the term inducement: “[I]nducement shall in-clude 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”.30Problems with this latter definition were noted by the high court of Orissa in Yulitha Hyde vs State of Orissa,31 where it was

SPECIAL ARTICLEEconomic & Political Weekly january 12, 200865held to impinge upon many legitimate methods of proselytising by reason of its overly vague nature and wide scope. This deci-sion was, however, subsequently overruled by the Supreme Court in Stainislaus vs State of Madhya Pradesh,32 in which it reaffirmed the validity of both the Madhya Pradesh and Orissa acts. Problems with the broad scope of both these terms neverthe-less remain. As charitable acts are also fundamental to many reli-gious traditions, any such interpretation may restrict the freedom of its adherents to meaningfully practise their religion or reli-gious beliefs. It is conceivable that the provision of education fa-cilities or medical care by religious denominations might also be interpreted as “temptations” intended to induce conversions. These definitions leave much uncertainty, therefore, as to which activities remain permissible and which are prohibited. With little to guide either enforcement authorities or mission-aries in discerning the difference between illegal and legal con-versions, most individuals who might otherwise seek to convert others to their faith will steer clear of any proselytising activities, no matter how innocuous, thereby stifling the free exercise of religion in India.1.5 The Definition of FraudThe Rajasthan bill and Gujarat act state that “ ‘[f]raudulent’ means and includes misrepresentation or any other fraudulent contrivance”.33 The Himachal Pradesh, Orissa, Madhya Pradesh, Arunachal Pradesh and Chhattisgarh acts state: “[f]raud shall include misrepresentation or any other fraudulent contrivance”.34Once more, the imprecision of this definition is apparent. To take an extreme example, if an individual was told he/she would feel closer to god upon conversion and if the converted person did not subsequently experience this degree of spirituality, would this constitute “misrepresentation”? These legislations provide no guidance as to how such a term should be understood.Additionally, the ambiguity of the definitions leaves a high de-gree of discretion to government officials to determine what ac-tions are prohibited and which individuals will be targeted. Drawing a dividing line between legitimate and illegitimate con-version efforts, between “bearing witness”, on the one hand, and “improper proselytism” on the other35 is a difficult task, as a range of interests and rights are involved. The failure of the anti-conversion legislations to maintain this distinction results in blanket prohibitions on conversion per se, which in turn severely and unjustifiably curtail the rights discussed below. 2 Scope of Constitutional ProtectionThe Right to Freedom of Religion is guaranteed by Article 25 of the Constitution of India which broadly parallels Article 18 of the Universal Declaration of Human Rights 1948(UDHR).36 Its relevant provisions read as follows:Article 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 restrict-ing any economic, financial, political or other secular activity which may be associated with religious practice; (b) providing for social wel-fare 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.In interpreting the scope of this constitutional protection of re-ligious freedom, the Supreme Court has sought to clarify that while an individual’s “religious beliefs are entirely his own and his freedom to hold those beliefs is absolute, he has not the right to act in any way he pleased [sic] in the exercise of his religious beliefs”. 37 In terms of constitutional protection, therefore, the court has drawn a clear distinction between the freedom to hold religious beliefs, on the one hand, and the freedom to manifest these beliefs on the other. The former falls squarely within the ambit of Article 25’s protection, and consequently, “no one can…be compelled, against his own judgment and belief, to hold any particular creed or follow a set of religious practices…. a person is left completely free to worship God according to the dictates of his conscience”.38 The latter freedom, however, i e, the right to practise and propagate religion, is subject to constitutional limi-tations enumerated in Article 25 itself. Any statutory restrictions on the right to practise and propa-gate one’s religion can therefore be imposed only on grounds of public order, morality and health (as permitted by Article 25(1)), or must seek to regulate secular activity associated with religious practice or to advance social welfare and reform (as permitted by Articles 25(2)(a) and (b) respectively). 2.1 The Stainislaus Judgment The 1977 Supreme Court judgment of Rev Stainislaus vs State of Madhya Pradesh,39which decided the constitutional validity of the Madhya Pradesh and Orissa anti-conversion legislations, remains the key judicial pronouncement on the validity of anti-conversion laws.Stainislaus arose in the backdrop of appeals against divergent judgments from the high courts of Orissa40 and Madhya Pradesh41 on the validity of the anti-conversion laws of those states. Both courts dealt with similar challenges to the constitutionality of these laws, which had contended a violation of Article 25 as well as a lack of legislative competence of the concerned state govern-ments in enacting them (since religion is not a subject on the state list, i e, states cannot legislate on the issue, only the central gov-ernment can). While both courts upheld their respective legisla-tive prohibitions against conversions by means of force and fraud, the high court of Madhya Pradesh also upheld the prohibition of conversion by “allurement” since it sought to guarantee equality of religious freedom.42 In contrast, the high court of Orissa estab-lished the right to convert as a component of religious freedom as guaranteed by the Constitution and held that the equivalent term of inducement (as used in Section 2(d) of the Orissa Freedom of Religion Act) was too vague. It was therefore capable of interfer-ing with several legitimate proselytising activities protected by Article 25(1) and was liable to be struck down.43 Further, while

SPECIAL ARTICLEjanuary 12, 2008 Economic & Political Weekly66the Orissa law was struck down for lack of legislative compe-tence, the high court of Madhya Pradesh upheld the competence of the state government to enact such a law by construing it to fall within the category of “public order”, a subject enumerated on the state list.44In Stainislaus, the Supreme Court largely endorsed the ruling of the Madhya Pradesh High Court. Repudiating the Orissa High Court’s understanding of conversion as a religious activity enti-tled to constitutional protection, the Supreme Court refused to read the freedom to convert within the right to propagate one’s religion. Instead, it was held that Article 25 merely granted the right to “transmit or spread one’s religion by an exposition of its tenets”. It stated that allowing a person to “purposely undertake the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion… would impinge on the ‘freedom of conscience’ guaranteed to all the citizens of the country alike”.45 Again, in examining whether state governments possessed legislative competence to pass legislation restricting conversions, the Supreme Court agreed with the Madhya Pradesh high court that such legislations pertained to ‘public order’, as forcible con-versions could result in public disorder. In treating the issue as one of public order, the court adopted a broad interpretation of the term as signifying a “state of tranquility which prevails among members of a political society as a result of internal regu-lations enforced by the government”.46 Therefore, “if a thing dis-turbs the current life of the community, and does not merely affect an individual, it would amount to disturbance of the public order”. 47 Both legislations were thus construed to be aimed at “avoid[ing] disturbances to the public order by prohibiting con-version from one religion to another in a manner reprehensible to the conscience of the community”48 and were therefore held to be valid in the exercise of the state government’s power to maintain public order.3 AnalysisofStainislausA preliminary issue that remained unaddressed in Stainislaus was whether conversions were an integral part of the Christian religion. If so, as was held by the Orissa High Court in Yulitha Hyde, the activity could legitimately have claimed protection under Article 25 (1).3.1 Conversions and Definition of ReligionIn the absence of a constitutional definition of the term “religion”, the Supreme Court has held that with reference to both Articles 25 and 26, the task of deciding whether an activity is religious or secular depends on whether it is essential or integral to a reli-gion. This was elaborated in Commissioner vs Lakshmindra Swamiar,49 where the Court stated that, “…what constitutes the essential part of a religion is primarily to be ascertained with ref-erence to the doctrines of that religion itself”.50 Further, the court has also factored in the view of the concerned religious commu-nity in deciding whether to categorise an activity as religious. In Tilkayat Shri Govindlalji Maharaj vs State of Rajasthan51 it was stated that, “…the test [of deciding the question as to whether a given religious practice is an integral part of the religion or not] always would be whether it is regarded as such by the community following the religion or not”.52 These basic rules have been utilised in a number of cases to determine whether a practice is religious and therefore protected by Article 25, or whether it is secular and therefore amenable to state regulation.53 The issue of whether conversion is an integral aspect of the Christian faith formed the basis of the Orissa High Court’s judg-ment, and it is unfortunate that this issue was completely side-stepped by the Supreme Court in deciding the contours of the term “propagate” under Article 25.3.2 The Concept ofPropagationIn laying down the scope of the freedom to propagate, Stainislaus regrettably failed to consult the Constituent Assembly debates on the content and ambit of Article 25.54 The inclusion of the free-dom of religious propagation in Draft Article 19 (which is today Article 25) was discussed in the Constituent Assembly from December 3-6, 1948 and was the subject of much debate.55 While the proposal to include religious propagation as a funda-mental right drew a fair amount of criticism,56 L Krishnaswami Bharati clarified that inclusion of the term propagation was necessary not merely for purposes of the Christian community but for the larger purpose of “educat[ing] our people on religious tenets and doctrines”. He further stated: [T]his matter was thoroughly discussed at all stages in the Minorities Committee, and they came to the conclusion that this great Christian community which is willing and ready to assimilate itself with the general community, which does not want reservations or other special privileges, should be allowed to propagate its religion along with other religious communities…57 [emphasis added]. T T Krishnamachari agreed:…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 condi-tions that have to be observed in any civilised government. So, it is not a question of taking away anybody’s rights58 [emphasis added].As K M Munshi noted, the Christian community insisted on the term propagation not because they wanted to aggressively convert those from other religions, but because propagation as an activity was fundamental to their own faith. He went on to draw an important link between constitutional ideals of secular-ism and the inclusion of a right to convert within the guarantee of religious freedom, arguing that in a secular state: “[t]here is no particular advantage to a member of one community over another; nor is there any political advantage by increasing one’s fold. In those circumstances, the word ‘propagate’ cannot possi-bly have dangerous implications…”59Rohini Kumar Chaudhari, while arguing there should be a pro-hibition on propagating religion by “throwing mud at some other religion”, nevertheless noted that in principle: “I have no objec-tion to the propagation of any religion. If anyone thinks that his religion is something ennobling and that it is his duty to ask others to follow that religion, he is welcome to do so”.60

SPECIAL ARTICLEEconomic & Political Weekly january 12, 200867Pandit Lakshmi Kanta Maitra passionately argued:If we are to restore our sense of values which we have held dear, it is of the utmost importance that we should be able to propagate what we honestly feel and believe in. Propagation does not necessarily mean seeking converts by force of arms, by the sword, or by coercion. But why should obstacles stand in the way if by exposition, illustration and persuasion you could convey your own religious faith to others?61It is important to note that several members shared the view that any right to convert was not unregulated by the text of Draft Article 19. S V Santhanam opined that sufficient care had been taken to “see thatno unlimited right of conversion has been given… 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”62 [emphasis added].Finally, Munshi asserted, even if the word “propagate” had not been included in the Constitution, “I am sure,under the freedom of speech which the Constitution guarantees, it will be open to any religious community to persuade other people to join their faith. So long as religion is religion, conversion by free exercise of the conscience has to be recognised”63 [emphasis added].Accordingly, an amendment to remove the word propagate from the text of Draft Article 19 was ultimately negatived. It therefore appears from the text of the Constituent Assembly debates that firstly, inclusion of the term propagate was intended to benefit members of all religions. Secondly, by subjecting the freedom of religion to the limitations within what was to become Article 25, safeguards were included to ensure that forced conversions would not eventuate. In light of such broad-mindedness and liberalism as demon-strated by the Constitution framers, the Supreme Court’s failure to refer to the Constituent Assembly debates to ascertain the in-tended scope of the term propagate is disappointing and its ruling that no right to conversion could be claimed under Article 25 ap-pears unduly restrictive. Certainly it was never envisaged that any right to conversion would be absolute. The limitations within Article 25 itself ensured that governments could potentially cur-tail this right, but it is essential that at least one of these limita-tions be applicable to defend any such curtailment. While the court proceeded to rely on the restriction of public order, the following section shall attempt to demonstrate that this reliance was misplaced and remains inadequately justified. 3.3 The Concept of Public OrderIn utilising the concept of public order to uphold the Madhya Pradesh and Orissa legislations, great reliance was placed on precedents like Romesh Thapar and Arun Ghosh, both of which were invoked to attribute a wide meaning to the term. In relying on Romesh Thapar, however, the Supreme Court failed to take into account the context in which its observations weremade. In Thapar, the Court had stated that the term public order should be given a wide connotation in an attempt to distinguish that term from the narrower phrase security of the state. Again, the Court failed to address certain key observations made in Arun Ghosh: The disturbance of public order is to be distinguished from acts directed against individuals, which do not disturb the society to the extent of causing a general disturbance of public tranquility. It is the degree of disturbance and its effect upon the life of the community in a locality, which determines whether disturbance amounts only to a breach of law and order or has acted in a manner likely to cause a disturbance to public order.64This distinction between public order and other less serious breaches of peace have been reiterated in a number of other cases. In Pushkar Mukherjee vs State of West Bengal,65 the Supreme Court stated that:The contravention of any law always affects order but before it can be said to affect public order, it must affect the community or the public at large. In this connection we must draw a line of demarcation be-tween serious and aggravated forms of disorder which directly affect the community or injure the public interest and the relatively minor breaches of peace of a purely local significance which primarily injure specific individuals and only in a secondary sense public interest.66Resolving such minor breaches has been said to fall into the category of maintain “law and order”, the import of which also is clearly distinguishable from public order. In Ram Manohar Lohia vs State of Bihar,67 the Court observed that:Disorder is no doubt prevented by the maintenance of law and order also but disorder is a broad spectrum which includes at one end small disturbances and at the other the most serious and cataclysmic hap-penings. Does the expression “public order” take in every kind of dis-order or only some? The answer to this serves to distinguish “public order” from “law and order” because the latter undoubtedly takes in all of them. Public order if disturbed, must lead to public disorder. Every breach of the peace does not lead to public disorder.There is therefore a careful and crucial delineation between minor law and order issues and more widespread and seri-ous disturbances which amount to public disorder. The differ-ence between the two is not necessarily marked by the nature of the disturbance. Rather, the scale and extent of the distur-bance is more likely to be the decisive factor in determining whether it amounts to a threat to the public order. While it is true, therefore, that the phrase public order is very broad, the discretion this leaves to state legislatures is not unlimited. The state should be required to adequately demonstrate that the disturbance extends beyond mere maintenance of law and order and qualifies as a public order issue. None of the anti-conversion laws demonstrate any credible nexus with public order. The Statement of Objects and Reasons of the Gujarat act appears to consider the creation of a “deterrent against the anti-social and vested interest groups exploiting the innocent people belong[ing] to depressed classes” as the primary aim of the legislation and mentions that it will “also be useful to maintain public order and to nip in the bud the attempts by cer-tain subversive forces to create social tension”.68 The Rajasthan bill does not even make a mention of public order, merely stating that owing to alleged conversions by force, allurement and fraud, there has been “annoyance in the community”, a weakening of the “inter-religious fabric”, and “law and order problems”. The bill is therefore intended to “curb illegal activities” and “maintain harmony amongst persons of various religions”.69 The crucial distinction between public order and law and order is not reflected in the language of these legislations.

SPECIAL ARTICLEjanuary 12, 2008 Economic & Political Weekly68In this light, the failure of Stainislaus to address the extensive constitutional jurisprudence on the ambit of the term public order is disappointing. Regrettably, the Supreme Court lowered the bar when considering whether the limitation should apply in validating anti-conversion legislations. Without examining or addressing the nuances of public order to demonstrate how it could be applied in the context of these laws, the Court appeared to trust that there was public disorder to such a degree that it justified a severe restraint on a constitutionally protected right. 3.4 Article 25: An Essential IngredientIn response to recent complaints about the increasing number of anti-conversion laws, the National Commission for Minorities has noted that the rights protected under Article 25 of the Constitu-tion are “an essential ingredient of our country’s multi-religious edifice”.70 State governments are thus urged “to do nothing to water down this basic provision”.71 This exhortation is equally relevant to the judiciary. The import and substance of Article 25 must be given full effect to and the rights protected by the provi-sion should be resolutely guarded. Narrowing the rights protected whilst liberally interpreting the limitations that may be applied is a troubling trend that may result in an eventual evisceration of Article 25.4 Laws and Principles of SecularismThe anti-conversion laws also have a detrimental impact on the principles of secularism and tolerance, the observance of which is mandated by the Constitution. The Supreme Court has previously commented that Articles 25 and 26 “…embody theprinciple of religious toleration that has been the characteristic feature of Indian civilisation from the start of history. Besides, they serve to emphasise the secular nature of Indian Democracy which the founding fathers considered should be the very basis of the Constitution.”72The “secular character of the Constitution” was subsequently elevated to the position of a basic structure feature and thus placed beyond the amending power of Parliament in Kesha-vananda Bharati vs State of Kerala.73 In S R Bommai vs Union of India74, the Supreme Court elaborated on this concept and went on to hold that: “[T]he acts of a State Government which are cal-culated to subvert or sabotage secularism as enshrined in our Constitution, can lawfully be deemed to give rise to a situation in which the government of the state cannot be carried on in accordance with the provisions of the Constitution.”75 Raising equally valid problems is the fact that the form of secu-larism adopted by the BJP and the Congress Party is envisaged in majoritarian terms, which posits the dominant Hindu population as the norm against which other communities are assessed. Consequently, any special protection for religious minorities is treated as a violation of the principle of secularism.76 Proselytis-ing religions are viewed with suspicion in light of their alleged inability to tolerate other religions.77 Commentators suggest that the answer to this problem lies in a much-needed paradigm shift from formal to substantive equality, and from majoritarianism to a recommitment to liberal democracy with sufficient protection for minority rights.78 The anti-conversion legislations must therefore be understood within a context wherein political and judicial commitment to the principles of secularism and tolerance has been questioned. While the legislations alone do not threaten to depose these values, they nevertheless represent a highly visible and contro-versial example of their dilution. 5 Guaranteesby International ProtectionsWhile considering the anti-conversion laws with respect to the freedom of religion guaranteed by international human rights in-struments, two distinct, but related, sets of rights must be appre-ciated.79 One may be claimed by the proselytiser, while the other is applicable to the proselyte. These have been described as the “positive” and “negative” aspects of the freedom respectively,80 or, more specifically, as the freedom to attempt to persuade another to join a religious group and the freedom to be free from unwanted interference.81 5.1 FreedomofReligionAs indicated there are two aspects of religious freedom, namely, the rights of the proselytiser and those of the proselyte.The Rights of the Proselytiser: The following questions have been analysed. (a) Do international instruments recognise a right to proselyt-ise? While international instruments do not explicitly recognise a right to proselytise per se, there is a strong case to be made that right to religious freedom guaranteed by Article 18(1) of the Inter-national Covenant on Civil and Political Rights 1966 (ICCPR) encompasses the right to attempt to peacefully propagate one’s religious beliefs. The relevant Article states: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 choice, and freedom, either individually or in commu-nity with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching.82India’s ratification of the ICCPR in 1979 requires it to respect the rights contained therein.The former special rapporteur of the Sub-Commission on Pre-vention of Discrimination and Protection of Minorities, Arcot Krishnaswami, has recognised that: “[w]hile some faiths do not attempt to win new converts, many of them make it mandatory for their followers to spread their message to all, and to attempt to convert others. For the latter, dissemination is an important aspect of the right to manifest their religion or belief”83 [emphasis added].The United Nations Human Rights Committee has observed that the right to freedom of thought, conscience and religion is both “far-reaching and profound”.84 Its component freedom to manifest religion in worship, observance, practice and teaching has been said to “encompass a broad range of acts”, such as, for example, the “freedom to prepare and distribute religious texts and publications”.85 It appears reasonable, in the light of these observations, to conclude that the freedom to manifest religion in practice and teaching should be interpreted to include distri-bution of texts and publications to non-adherents where the objective is to secure their conversion.

SPECIAL ARTICLEEconomic & Political Weekly january 12, 200869This conclusion finds support from the interpretation of guar-antees in other regional human rights conventions. Article 9 of the European Convention on Human Rights 1950, while guaran-teeing the freedom to manifest religion in terms identical to the ICCPR, is made subject to “only to such limitations as are pre-scribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others”.86 In interpreting the scope of these limitations, a signifi-cant decision was reached by the European Court of Human Rights Kokkinakis vs Greece,87 which noted that:Bearing witness in words and deeds is bound up with the existence of religious convictions. According to Article 9, freedom to mani-fest [one’s] religion . . . includes in principle the right to try to con-vince one’s neighbour, for example through teaching, failing which, moreover, freedom to change [one’s] religion or belief, enshrined in Article 9, would be likely to remain a dead letter.88While the European court was careful to distinguish between “bearing Christian witness” and “improper proselytism”, the decision is noteworthy for its recognition that some religions require their adherents to spread the message of the faith and that consequently, adherents will be unable to fully manifest their religious beliefs if they cannot engage in these activities. If acts of proselytism are correctly characterised as manifesta-tions of religion or religious belief, this right will then be subject to the limitations of Article 18(3) of the ICCPR, i e, those pres-cribed by law and necessary to protect public safety, order, health, or morals or the fundamental rights and freedoms of others.(b) Do the restrictions imposed by the anti-conversions laws conform to the requirement of necessity in accordance with Article 18(3) of the ICCPR? Article 18(3) of the ICCPR states: “Free-dom to manifest one’s 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 freedoms of others”.89TheUN Human Rights Committeehas declared that any re-strictions on the freedom to manifest one’s religion or beliefs pur-suant to Article 18(3) must be “directly related and proportionate to the specific need on which they are based.”90 Further, the term public order as a ground of limiting rights under the Covenant is defined as “the sum of rules which ensure the functioning of society or the set of fundamental principles on which society is founded”.91 Nowhere in the discourse on anti-conversion laws is there evidence to justify the existence of such exceptional circum-stances. There is a clear lack of hard evidence to substantiate allegations of mass conversions through force, allurement or fraud. For example, the Sangh parivar’s claims of numerous forcible conversions around the Tirumala Hills have been contra-dicted by V V Ramena Deekshitulu, head priest of the Lord Venkateshwara Temple at Tirumala, who has stated there have been no conversions in that area.92 This is consistent with the 1999 observations of the then chairperson of the National Commission for Minorities that no evidence had been found to support the allegation that dalits and tribals had been converted by force.93 The laws are entirely disproportionate to any disturbance caused by any illegitimate conversions, even conceding certain instances of such conversions. As such, these laws fail Article 18(3)’s requirement of necessity.The increase in the number of anti-conversion legislations is especially troubling as it comes in an operative context of rising violence against religious minorities.94 John Dayal correctly recognises that “the mushrooming number of anti-conversion bills actually convinces the Sangh [Parivar] cadres that they are right in attacking Christians”, hence legitimising or even encour-aging antagonism towards minority religions.95In this contemporary context of inter-religious tensions and violence against minorities, it is important to recognise that the limitations in Article 18(3) of the ICCPR, including public order, do not excuse a state from its obligation to “promote tolerance, mutual understanding and peaceful relations between groups”. Any limitations on rights should thus be viewed in light of a state’s fulfillment of this obligation.96 Initial governmental failures to respond adequately to human rights abuses cannot subsequently be invoked to justify limitations on the freedom to manifest one’s religion or religious beliefs.The Rights of the Proselyte: The right to change religion and freedom from interference is discussed here. Article 18 of the UDHR expressly incorporates the right to change one’s religion: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief”.97 The wording of the Article 18(2) of the ICCPR is not as decisive on this issue, stating: “No one shall be subject to coercion which would impair his freedom to have or to adopt a religion or belief of his choice”.While there is some debate on whether this encompasses a right to change one’s religion, there is a strong argument to be made that such a freedom is in fact protected. The UN Human Rights Committee concludes that Article 18(1) of the ICCPR “necessarily entails the freedom to choose a religion or belief, including the right to replace one’s current religion or belief with another or to adopt atheistic views”98 [emphasis added].If there is a right to change one’s religion, do laws prohibiting proselytisation impair this freedom? Would it make a difference if the individual has not yet expressed a desire to convert? Argu-ably, an individual cannot exercise a freedom to change religion unless he/she is aware of the alternatives open to him or her. As was pointed out by H M Seervai, “conversion does not in any way interfere with the freedom of conscience but is a fulfillment of it and gives meaning to it”.99 For an individual to be able to exercise the freedom to change his or her religion, he or she must first be aware of the tenets of other religions. This information is arguably best made available by proselytisers seeking their conversion. Restrictions on the right of the proselytiser to attempt to convert third persons thus inevita-bly impair the potential proselyte’s freedom to change religions. All individuals must nonetheless retain the right to refuse the offer of conversion and be able to enjoy their freedom of religion free from undue interference. Article 18(2) of the ICCPR affirms that “[n]o one shall be subject to coercion which would impair his

SPECIAL ARTICLEjanuary 12, 2008 Economic & Political Weekly70

SPECIAL ARTICLEEconomic & Political Weekly january 12, 200871freedom to have or to adopt a religion or belief of his choice” [em-phasis added]. No individual can be legitimately subject to ex-treme proselytising efforts that infringe upon the freedom to main-tain his or her chosen religious beliefs. This is expressly mandated by the World Council of Churches, which is currently undertaking the formulation of a code of conduct on conversions. This initia-tive stems from the recognition that “while everyone has a right to invite others to an understanding of their faith, it should not be exercised by violating other’s rights and religious sensibilities.”100 5.2 The Freedom of ExpressionThe freedom of expression guaranteed by Article 19 of the ICCPR includes missionary activities.101 This right, as with Article 18 of theICCPR, is not absolute and is subject to the limitations in Arti-cle 19(3)(a) and 19(3)(b). However, as discussed above, support-ers of anti-conversion laws have failed to marshal adequate evi-dence to justify abridging this freedom for the preservation of public order. None of the state governments passing these laws have indicated that they are necessary for national security, pub-lic health or morals. The freedom of expression thus remains in-tact in the absence of a justifiable ground for imposing any limit-ations on it, rendering the anti-conversion laws contrary to the protection afforded by Article 19. 5.3 Right of EqualityArticle 2(1) of the ICCPR obliges a state party to secure the rights contained within it “to all individuals within its territory and sub-ject to its jurisdiction without ‘distinction of any kind, such as …religion”. In the context of the freedom of religion, the United Nations General Assembly Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief 1981 also creates positive duties that national states must perform in order to eliminate the scourge of religious intolerance and discrimination. For this purpose, religion-based intolerance and discrimina-tion is defined in Article 2(2) of the declaration as “any distinc-tion, exclusion, restriction or preference based on religion or be-lief and having as its purpose or as its effect nullification or im-pairment of the recognition, enjoyment or exercise of human rights and fundamental freedoms on an equal basis”.102While lacking the status of a treaty, commentators have noted that the comprehensiveness of the document and the regard it is paid by the international community illustrates that it is a most crucial instrument in determining religious rights.103There is further alarm that, in practice, all anti-conversion laws might be used to target the conversion efforts of religion minorities only. It will be recalled that Article 2(2) of the Decla-ration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief, 1981 refers to both “purpose” and “effect”. As commentators argue, prohibitions against proselytism will be discriminatory if they are used pri-marily against religious minorities rather than being equally applied to majority communities.104No official action appears to have been taken under the anti-conversion legislations against Hindu conversion efforts, despite allegations from several quarters of forced conversions to Hinduism.105 TheVHP has reported a total of 12,857 re- conversions to Hinduism from Islam and Christianity in 2004.106 There is thus apprehension that despite the number of conver-sions and “re-conversions” to Hinduism, the laws will only be used against religious minorities. The potentially selective use of the laws may be a consequence of the definition of conversion within the Arunachal Pradesh act, the Rajasthan bill and the Chhattisgarh amendment, or, more troublingly, a deliberate policy decision to target religious minorities. 6 Other ObjectionsThere are other objections to the laws that need to be listed here.Severity of Penalties: The punishments provided in the anti-conversion laws are extremely serious. While the Orissa107 and Madhya Pradesh108 Acts provide for imprisonment extendable up to a period of one year or a fine of up to Rs 5,000, subsequent acts have drastically increased these penalties. Arunachal Pradesh’s act provides that anyone found guilty of converting, attempting to convert or abetting the conversion of another through the use of force, fraud or inducement is punishable with imprisonment of up to two years or a fine of up to Rs 10,000.109 The Himachal Pradesh act provides for a maximum imprisonment period of two years or a fine of up to Rs 25,000 or both.110The Rajasthan bill, while providing for the same maximum period of imprisonment, allows the imposition of a fine of up to Rs 50,000111 and further categorises all offences committed un-der its provisions as non-bailable and cognisable.112 Chhattis-garh’s 2006 legislative amendment to its Freedom of Religion Act increases the period of imprisonment from one to three years and the maximum fines imposable from Rs 5,000 to Rs 25,000.113 The Gujarat act provides for a maximum penalty of three years imprisonment or a fine of up to Rs 50,000.114Some acts115 carry a heftier punishment for conversions of women, children and members of the scheduled castes or scheduled tribes. Also punishable under some acts is the failure to give prior notice to district government officials of any intended conversion.116As pointed out by Rajeev Dhawan, these penalties are more severe than for offences such as rioting and causing death by neg-ligence.117 They are draconian and entirely disproportionate to any ills that the acts purport to remedy. Anti-conversion Laws are Unnecessary: Existing pieces of legis-lation are already fully capable of addressing the alleged problem of conversions brought about by force, allurement or fraud. Ghose argues that this issue could be dealt by enforcing provisions of general criminal law, including Sections 295A118 and 298119 of the Indian Penal Code 1860; several provisions of the Code of Crimi-nal Procedure Act 1973 and of the Police Act 1861.120 For the majority of state governments who have not yet enacted anti-conversion laws, there appears to be no concern that they would be unable to prohibit or prosecute individuals for acts of forced conversions. Finally, it is worth noting that despite all the hysteria surround-ing the issue of conversions, national census figures show the number of adherents to each religion has remained remarkably

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SPECIAL ARTICLEEconomic & Political Weekly january 12, 20087350 Ibid.51 AIR 1963 SC 1638.52 Ibid. Also see Sardar Syedna Taher Saiffudin Sa-heb vs The State of Bombay (1962) AIR SC 853 for a summary of case-law relating to these proposi-tions. 53 See for example, Durgah Committee, Ajmer vs Syed Hussain Ali AIR 1961 SC 1402; A S Narayana vs State of Andhra Pradesh AIR 1996 SC 1765; and E R J Swami vs State of Tamil Nadu AIR 1972 SC 1586.54 Seervai, op cit, p 1287.55 For a discussion on the debates see Ghose, op cit. The text of the debates is available at: http://par-liamentofindia.nic.in/ls/debates/vol7p19.htm.56 Loknath Misra, for example, opposed the inclu-sion of the term ‘propagate’ in Article 25 as a means of “paving the way for the complete anni-hilation of Hindu culture, the Hindu way of life and manners”; see Constituent Assembly of India (Vol VII), December 6, 1948, available at: http://parliamentofindia.nic.in/ls/debates/vol7p20a.htm. Tajamul Hussain opposed it as it would lead to instances of ‘nuisance’; see Constituent Assem-bly of India (Vol VII), December 3, 1948, available at: http://parliamentofindia.nic.in/ls/debates/vol7p19.htm.57 Constituent Assembly of India (Vol VII), Decem-ber 6, 1948, available at: http://parliamentofin-dia.nic.in/ls/debates/vol7p20a.htm.58 Ibid.59 Ibid.60 Ibid.61 Ibid.62 Ibid.63 Ibid.64 (1966) 1 SCR 70965 AIR 1970 SC 85266 Ibid.67 AIR 1966 SC 74068 Statement of Objects and Reasons, Gujarat Free-dom of Religion Act 2003. The Explanatory State-ment of the now repealed Tamil Nadu Freedom of Religion Ordinance 2002 incorporates these same reasons.69Statement of Objects and Reasons, Rajasthan Freedom of Religion Bill 2006.70 National Commission for Minorities, Press Note C/20/33/16/06-NCM, July 27, 2006, available at: http://ncm.nic.in/pressnote.pdf.71 Ibid.72 Sardar Syedna Taher Saiffudin Saheb vs The State of Bombay (1962) AIR SC 853. 73 AIR 1973 SC 1461.74 AIR 1994 SC 1918.75 Ibid, per Sawant, J. 76 Brenda Cossman and Ratna Kapur, ‘Secularism’s Last Sigh?: The Hindu Right, the Courts, and India’s Struggle for Democracy’, 38, Harvard International Law Journal 113, 1997, p 125.77 Ibid, pp 125-126.78 Ibid. 79Moshe Hirsch, ‘The Fundamental Agreement Between the Holy See and the State of Israel: A Third Anniversary Perspective; The Freedom of Proselytism Under the Fundamental Agreement and International Law’, 47The Catholic University Law Review407, 1998, p 408.80 IsaiahBerlin,Four Essays on Liberty, Cox & Wyman, 1979, as cited in Moshe Hirsch, ibid.81 Ibid.82 Article 18, International Covenant on Civil and Political Rights 1966.83 Special rapporteur Arcot Krishnaswami, ‘Study of Discrimination in the Matter of Religious Rights and Practices’, UN Doc E/CN.4/Sub 2/200/Rev 1, UN Sales No 60 XIV 2 (190) as cited in Stahnke, op cit, p 260.84 Human Rights Committee, ‘General Comment No 22: The Right to Freedom of Thought, Con-science and Religion (Article 18): 30/07/93’, avail-able at: http://www.unhchr.ch/tbs/doc.nsf/(Symbol)/9a30112c27d1167cc12563ed004d8f15?Opendocument at paragraph 1.85 Ibid, paragraph 4.86 Article 9(2), European Convention on Human Rights1950.87 (1993) ECHR 20. 88 Ibid. 89 Article 18(3), International Covenant on Civil and Political Rights 1966.90Human Rights Committee, General Comment No 22, op cit, paragraph 8.91 Ibid, paragraph 22.92 Ibid.93 Interview with Tahir Mahmood, then chairperson of the National Commission for Minorities, May 3, 1999, as cited in Smita Narula, ‘Overlooked Danger: The Security and Rights Implications of Hindu Nationalism in India’, Harvard Human Rights Journal, Volume 16, Spring 2003, available at: http://www.law.harvard.edu/students/orgs/hrj/iss16/narula.shtml. 94 For a list of violent acts committed against Chris-tians in India in 2006 see: All India Christian Council, ‘The Unofficial White Paper on Violence against Christians in India – 2006’, January 1, 2007 available at: http://www.secularindia.com/comments/2007/01/22The%20Unofficial%20White.htm. Also see Sumit Sarkar, ‘Conversions and Politics of Hindu Right’, Economic and Politi-cal Weekly, June 26 –July 2, 1999; and Dominic Emmanuel, ‘Noughts and Crosses’,Hindustan Times, May 2, 2007.95Statement by John Dayal, member, National Integration Council, ‘Sangh Bares Its Fangs on Founder’s Centenary’, January 22, 2007, available at: http://www.indianmuslims.info/news/2007/january/24/letters_issues/sangh_bares_its_fangs_on_founders_centenary.html.96 Stahnke, op cit, p 277. 97 Article 18, Universal Declaration of Human Rights 1948.98 Human Rights Committee, General Comment No 22, op cit, paragraph 5.99 Seervai, op cit, p 1289.100 World Council of Churches, ‘Report from Inter-Religious Consultation on ‘Conversion – Assess-ing the Reality’’,Current Dialogue, Issue 47, June 2006 available at: http://www.wcc-coe.org/wcc/what/interreligious/cd47-18.html.101See interim report of the special rapporteur on Freedom of Religion or Belief, Asma Jahangir, United Nations General Assembly (UN doc A/60/399), September 30, 2005, paragraph 61. 102 Ibid, Article 2(2).103 See generally Derek Davis, ‘The Evolution of Re-ligious Freedom as a Universal Right: Examining the Role of Religious Freedom as a Universal Hu-man Right; Examining the Role of the 1981 United Nations Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief’,Brigham Young University Law Review217, 2002. 104Thomas Giegerich, ‘Freedom of Religion as a Source of Claims to Equality and Problems for Equality’, 34Israel Law Review211, 222, 2002. 105 See for example the Human Rights Watch Report ‘Overview of Human Rights Developments: India, 1999’, available at: http://www.hrw.org/wr2k/Asia-04.htm#TopOfPage. Harsh Mander has noted that this a strategy of the Sangh Parivar for intimidating the country’s Christian minority; see Harsh Mander, ‘A Heavy Cross to Bear’,Hindustan Times, June 27, 2007.106 United States of America State Department, ‘In-ternational Religious Freedom Report 2005: India’, November 8, 2005, available at: http://www.state.gov/g/drl/rls/irf/2005/51618.htm. 107 Section 4, Orissa Freedom of Religion Act 1967.108Section 4, Madhya Pradesh Freedom of Religion Act 1968.109Section 4, Arunachal Pradesh Freedom of Reli-gion Act 1978.110 Section 5, Himachal Pradesh Freedom of Religion Act 2006.111 Section 4, Rajasthan Freedom of Religion Bill 2006. 112Section 5, Rajasthan Freedom of Religion Bill 2006.113Section 3, Chhattisgarh Freedom of Religion (Amendment) Act 2006.114 Section 4, Gujarat Freedom of Religion Act 2003.115 See Section 5, Himachal Pradesh Freedom of Re-ligion Act 2006; Section 3, Chhattisgarh Freedom of Religion (Amendment) Act 2006; Section 4, Gujarat Freedom of Religion Act 2003; Section 4, Orissa Freedom of Religion Act 1967; Section 4, Madhya Pradesh Freedom of Religion Act 1968. 116 Section 4, Himachal Pradesh Freedom of Religion Act 2006; Section 5, Gujarat Freedom of Religion Act 2003; Section 5, Arunachal Pradesh Freedom of Religion Act 1978, Section 5, Madhya Pradesh Freedom of Religion Act 1968.117Rajeev Dhawan, ‘Preliminary Submissions on Rajasthan Dharma Swatantrya Bill, 2006’, Ap-pendix 2 to Christian Solidarity Worldwide, ‘Anti- Conversion Bill in Rajasthan State, India’, p 5.118 Section 295A of the Indian Penal Code criminal-ises deliberate and malicious acts intended to out-rage religious feelings of any class by insulting its religion or religious beliefs.119 Section 298 of the Indian Penal Code criminalises the uttering of words, etc, with deliberate intent to wound the religious feelings of any person. 120Sanjay Ghose, ‘Unsustainable Laws’,Lawyers Col-lective,2001, available at: http://www.lawyerscol-lective.org/lc_ag/freedownloads/magzine2001/January%202001/unsus_stein_able_laws.htm.121 Ministry of Home Affairs, Census of India, ‘Data on Religion – Christians’, 2001, available at: http://www.censusindia.net/religiondata/Sumary%20Christians.pdf.122 Ministry of Home Affairs, Census of India,‘Pro-portion and Growth Rate of Population by Reli-gious Communities, India, 1961-2001’, 2001, avail-able at: http://www.censusindia.net/religion-data/statement.pdf.123 Yulitha Hyde and Ors vs State of Orissa1973 AIR Ori 116.124Pratap Bhanu Mehta, ‘Passion and Constraint’, Seminar, January 2003, available at: http://www.india-seminar.com/2003/521/521%20pratap%20bhanu%20mehta.htm. 125 V Suresh and Shankar Gopalakrishnan, ‘‘Convert’ – And Be Damned’,Combat Law,Vol 1, Issue 6.1, March 2003.126 Johan D van der Vyver, ‘Limitations on Freedom of Religion and Beliefs: International Law Pers-pectives’, 19Emory International Law Review 499, 1995, p 505.Open Review Several international journals are moving away from closed "Peer Review" of research papers, towards an "Open Review" process. 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