RIGHT TO FREEDOM OF RELIGION WITH

RESPECT TO CONSTITUTIONAL VALIDITY OF

ANTI-CONVERSION LAWS.

INTRODUCTION:

India is an ancient nation, perhaps the most ancient. Withstanding

all the shocks of cruel history, India has lived a long civilized life
united by a common culture which, for many centuries has been
characterized by remarkable continuity. During the course of this
mighty, long history numerous religious beliefs were propounded
and numerous religious practices were evolved in India.

The term religion has no compact or exact definition. In any case,

when it comes to acknowledgement of religion as conviction or
belief, it needs legitimate justification to qualify as knowledge or
as the number same of religious masters and religious writings
articulate as way of living. When all is said in general terms,
religion is an organized accumulation of belief systems, social and
cultural systems, and worldviews that relates mankind to most
profound sense of being and, now and again, to good values.

This monograph emphasizes on the judicial dynamics of the anti-

conversion laws and as well as the jurisprudence latched to it.

RIGHT TO FREEDOM OF RELIGION:

One of the rights guaranteed by the Indian Constitution is the

right to Freedom of Religion. As a secular nation, every citizen of
India has the right to freedom of religion ie right to follow any
religion. As one can find so many religions being practiced in
India, the constitution guarantees to every citizen the liberty to
follow the religion of their choice. According to this fundamental
right, every citizen has the opportunity to practice and spread
their religion peacefully. And if any incidence of religious
intolerance occurs in India, it is the duty of the Indian government
to curb these incidences and take strict actions against it. Right to
RIGHT TO FREEDOM OF RELIGION WITH
RESPECT TO CONSTITUTIONAL VALIDITY OF
ANTI-CONVERSION LAWS.
freedom of religion is well described in the Articles 25, 26, 27 and
28 of Indian constitution.

In context of civil law, the Representation of the People Act of

1951 restricts the utilization of religion and religious
images/symbols with a perspective of underwriting one's
candidature for elections or for contrarily influencing the election
of other candidate. Making an appeal to vote or refraining any
individual from voting on the ground of his religion, race, caste,
community, or dialect, and additionally the utilization of religious
images for the advancement of the possibilities of one's own
election, or for preferentially influencing the decision of any
contestant, is a corrupt practice.

No country in this world has such a diverse religious background

as India. Thus, the Right to Freedom of religion forms a very
important Fundamental right of our country and aims at
maintaining the principle of secularism in India. Indian
constitution firmly states that all religions are equal before the
law and no religion shall be favored over the other.

THE INCEPTION OF RELIGIOUS CONVERSION IN INDIA:

In the beginning, the rulers of the East India Company did not
show much enthusiasm for missionary activity. The Company
recognized that the people of India were peculiarly sensitive in
the matter of religion. In 1781, evidence before a Committee of
the Commons elicited the unanimous opinion that "any
interference with the religion of the natives would eventually
ensure the total destruction of the British Power". Gradually, a
policy of religious neutrality was evolved. But the Governors and
Governors General privately sympathized with and supported the
Missionary activities in India. The evangelical party in England
RIGHT TO FREEDOM OF RELIGION WITH
RESPECT TO CONSTITUTIONAL VALIDITY OF
ANTI-CONVERSION LAWS.
was gaining ground and they climaxed their efforts to win public
support for "Christianizing India". They succeeded in their efforts
and in July 1813, a clause was inserted in the Charter Act by
which Missionaries of all faiths were allowed to enter India.
Missionary exertions were recognized by the Legislature and it
gave a profound impetus to the movement.

The debate and the ultimate victory of the Party of Saints served
to attract other Western nations to pastures available in India for
the missionary work. The Charter Act of 1813 opened the gates of
India for a perennial influx of the holy men from Christendom. In
1813, for example, there were six American Protestant Missions
moving in India and in 1910 nearly 1800 American Protestant
Agencies were working in India for propagating Christianity. Since
then there is an influx of missionaries and theirs was the religion
of the ruling class.

The missionaries were aware that certain elements in Christian

preachings - particularly its intolerance of non-Christian faiths -
have proved disruptive of India's cultural heritage; yet since their
object was to make this heritage subservient to Christianity they
relished the situation. As a consequence many Hindus felt quite
justified in regarding Christianity as a political as well as a
religious weapon of the West.

RELIGIOUS CONVERSION:

Religious Conversion is multifaceted

and multi-dimensional phenomenon. Indian society is a pluralist
and heterogeneous society with multiplicity of races, religious
cultural, castes and languages etc. Religious Conversion has
always been a problematic issue in India. Every incident of
conversion causes lot of hue and cry in society; especially it
causes nostalgic feelings to Hindu organization because of its
inherent socio- political. Rigid and Stringent caste system
RIGHT TO FREEDOM OF RELIGION WITH
RESPECT TO CONSTITUTIONAL VALIDITY OF
ANTI-CONVERSION LAWS.
prevailing in Hindu Religion is one of the most significant factors
behind the religious conversion. This is because of this caste
system Dalits (in most comprehensive and inclusive sense the
word Dalit includes Untouchables, Shudras and Adivasis) are the
most susceptible section of the society to religious conversion.
The other causes of conversion are 1) Polygamy which is
prevailing in Islam

2) To get rid of unwanted

matrimonial ties

3) Caste based privileges

and reservations.

ANTI-CONVERSION LAWS:

The Anti-Conversion are laws which is enacted mainly by state to

prohibit the conversion by force, allurement, gratuity, and other
method by which one man renounce his religion and convert into
another religion. At present, seven states have their Anti-
conversion law. The following state have their Anti-conversion law

(1)Madhya Pradesh

(2)Orrisa

(3)Tamil nadu

(4)Gujarat

(5)Rajasthan

(6)Himanchal Pradesh

(7)A.P
RIGHT TO FREEDOM OF RELIGION WITH
RESPECT TO CONSTITUTIONAL VALIDITY OF
ANTI-CONVERSION LAWS.
And there are more states which are planning to
introduce their Anti-conversion law like Jharkhand and
Uttarakhand. However, the state is free to make legislations only
on the following assumptions:

(1)People who converts in group may not have freely chosen

conversion.

(2)Groups are particularly vulnerable to being lured into changing

their religion.

Like other forcible conversion laws, the major challenge in the

implementation of this ordinance was the need to read minds.
How can one determine whether converts have been forced,
lured, or tricked?

The Seventh Day Adventists reported that, during the time the
ordinance was in effect, they required candidates for baptism to
sign a legal document stating that they were voluntarily desiring
church membership and there were no incentives or force in their
decision. Critics of the Tamil Nadu ordinance argued, The law, in
effect, will end up in those desiring to convert having to subject
themselves and their reasons for converting to the scrutiny of the
District Magistrate. . . . [T]he District Magistrate is empowered to
launch criminal prosecution against those facilitating others to
convert if force, allurement, or fraud are involved. So, the power
given to the District Magistrate amounts to passing judgments on
peoples subjective reasons for choosing to change their religion.

How can a converts volition be assessed? One way to circumvent

the need to read minds is to rely on rules of thumb, assumptions,
and stereotypes. The assumption that certain segments of the
population are more likely to be lured, duped, and tricked was
codified in the Tamil Nadu ordinances varied penalties, and these
steeper penalties for conversions of low castes and women
RIGHT TO FREEDOM OF RELIGION WITH
RESPECT TO CONSTITUTIONAL VALIDITY OF
ANTI-CONVERSION LAWS.
became a model for subsequent conversion laws in other states,
even after the repeal of the Tamil Nadu ordinance.

The Gujarat Freedom of Religion Bill of 2003, like the Tamil Nadu
legislation, includes increased fines and jail terms for those
converting women and Scheduled Castes and Tribes. Older laws in
some other states (such as Orissa, Madhya Pradesh, and Tamil
Nadu) monitor or control conversion by requiring converts to
report their conversions. The Gujarati legislation goes a step
further, making conversion ceremonies contingent upon advance
notice and the permission of a district magistrate, given once the
magistrate is satisfied that the conversion involves no force or
allurement. In the fall of 2006, several Christians were arrested in
Gujarat on charges of carrying out conversions without informing
the authorities. Notably, these were group conversions in a tribal
community. After the Gujarat law was enacted, Madhya Pradesh
revised its law to require that conversions be reported to
government authorities ahead of time, as in Gujarat.

LEGISLATIVE HISTORY:

The legislative history relating to the issue of conversion in India

underscores the point that the authorities concerned were never
favorably disposed towards conversion. While British India had no
anti-conversion laws. The reason being that they were followers of
Christianity and understandably they did not enact a law
detrimental to their own interest by prohibiting conversion from
one religion to another religion. During the British regime many
Hindus willingly and voluntarily embraced Christianity to secure
pecuniary gains and other advantages from the British rulers.
1While British India had no anti-conversion law, many Princely
States enacted anti-conversion legislation: the Raigarh State
Conversion Act 1936, the Patna Freedom of Religion Act of 1942,
the Sarguja State Apostasy Act 1945 and the Udaipur State Anti-
Conversion Act 1946. Similar laws were enacted in Bikaner,
RIGHT TO FREEDOM OF RELIGION WITH
RESPECT TO CONSTITUTIONAL VALIDITY OF
ANTI-CONVERSION LAWS.
Jodhpur, Kalahandi and Kota and many more were specifically
against conversion to Christianity. In the post-independence era,
Parliament took up for consideration in 1954 the Indian
Conversion (Regulation and Registration) Bill and later in 1960 the
Backward Communities (Religious Protection) Bill, both of which
had to be dropped for lack of support. The proposed Freedom of
Religion Bill of 1979 was opposed by the Minorities Commission
due to the Bill's evident bias. However, in 1967-68, Orissa and
Madhya Pradesh enacted local laws called the Orissa Freedom of
Religion Act 1967 and the Madhya Pradesh Dharma Swatantraya
Adhiniyam 1968. Along similar lines, the Arunachal Pradesh
Freedom of Religion Act, 1978 was enacted to provide for
prohibition of conversion from one religious faith to any other by
use of force or inducement or by fraudulent means and for
matters connected therewith.

The latest addition to this was the Tamil Nadu Prohibition of

Forcible Conversion of Religion Ordinance promulgated by the
Governor on October 5, 2002 and subsequently adopted by the
State Assembly. Each of these Acts provides definitions of
`Government', `conversion', `indigenous faith', `force', `fraud',
`inducement' (and in the case of Arunachal, that of `prescribed
and religious faith'). These laws made forced conversion a
cognizable offence under sections 295 A and 298 of the Indian
Penal Code that stipulate that malice and deliberate intention to
hurt the sentiments of others is a penal offence punishable by
varying durations of imprisonment and fines. As early as 1967, it
became evident that the concern was not just with forced
conversion, but with conversion to any religion other than
Hinduism and especially Christianity and Islam.

In the Orissa and Madhya Pradesh Acts, the punishment was to be

doubled if the offence had been committed in respect of a minor,
a woman or a person belonging to the Scheduled Caste or
Scheduled Tribe community. These may be seen as further
RIGHT TO FREEDOM OF RELIGION WITH
RESPECT TO CONSTITUTIONAL VALIDITY OF
ANTI-CONVERSION LAWS.
reinforcing the several statutory penalties for ceasing to be a
Hindu such as the 1955-56 Hindu Law enactments namely Hindu
Minority and Guardianship Act 1956 (Section 6), Hindu Adoption
and Maintenance Act 1956 (Sections 7, 8, 9, 11, 18-24), Hindu
Marriage Act 1955 (Sections 13 (ii), 13 A) and the Hindu
Succession Act (section 26). The picture is complete if we account
for the fact that most of these laws are aimed to keep the low
caste Hindus within the fold of Hinduism. And so while law
prohibits conversion, `reconversion' of low caste Hindus is
permissible. If a low caste Hindu who had converted to another
faith or any of his descendants reconverts to Hinduism, he might
get back his original caste (Kailash Sonkar (1984) 2 SCC 91;
S. Raja Gopal AIR 1969 SC 101)

CASE LAWS DETERMINING THE CONSTIYUTIONAL

VALIDITY OF ANTI-CONVERSION LAWS:

The constitutional validity of Anti-

conversion law is checked and challenged in the two cases
namely Mrs Yulithe Hyde and others v. State of Orrisa and in both
cases the appellant have same contention that Anti-conversion
law are violative of Article 25 of the Indian constitution.

The first case was Mrs. Yulithe Hyde and others v. State of Orrisa
which came before Orissa High Court comprises of two sitting
judges bench (R.N Mishra and K.B Panda). In this case Anti-
conversion law of state of Orrisa was challenged which is known
as the Orissa Freedom Of Religion Act, 1967.

The brief fact of this case, there are four petitioners who are
Indian citizens and are Christian belonging to the Roman Catholic
Church are permanent resident of Orrisa. The petitioners number
RIGHT TO FREEDOM OF RELIGION WITH
RESPECT TO CONSTITUTIONAL VALIDITY OF
ANTI-CONVERSION LAWS.
2 and 4 are Priests who claim to have dedicated themselves to
the propagation of the Catholic faith and are engaged in
evangelization leading to conversion of persons belonging to
other faith by and or through preaching exhortation. Father
Fernando and three others who are said to be catechists have
been prosecuted under the Act in the court of a Magistrate at
Gunupur in four separate cases.

The main contention raised in these Act is ultra vires the

constitution. The main attack is on the following grounds.

(1)The State Legislature has no legislative competency to

legislate on matters covered by the Act

(2)The Act infringes the fundamental rights guaranteed under

Article 25 of the constitution. In the end, Orrisa High Court held
that

(a)Article 25(1) guarantees propagation of religion and conversion

is a part of the Christian religion.

(b)Prohibition of conversion by force or by fraud as defined by

the Act would be covered by the limitation subject to which right
is guaranteed under Article 25(1).

(c)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.

(d)The State Legislature has no power to enact the impugned

legislation which in pith substance is a law relating to religion. .
Entry Number 1 of either List II or List III does not authorize the
impugned legislation. Hence this Act is ultra vires the constitution
and four criminal cases pending before the Magistrate at
Gunnupur are quashed.
RIGHT TO FREEDOM OF RELIGION WITH
RESPECT TO CONSTITUTIONAL VALIDITY OF
ANTI-CONVERSION LAWS.
Another case which came before the Madhya
Pradesh High Court and challenged the constitutional validity of
Madhya Pradesh Freedom of Religion Act,1968 which is known as
the Madhya Pradesh Dharma Swantantraya Adhiniyam,1968.
Same issued raised in this case which is raise in the case of Mrs
Yulithe Hyde.

The brief fact of the case, the Sub-Divisional Magistarte of Baloda

Bazar sanctioned the prosecution of Rev. Stanislaus for the
commission of offence under Sections 3,4 and 5(2) of the Madhya
Pradesh Act.

The main contention raised in this case are following:-

1. Section 3,4, 5(2) and 6 of the M.P Dharma Swantantrya

Adhiniyam Act, 1968 are violative of the fundamental rights
guaranteed by Article 25(1) of the constitution.

2. In exercise of powers conferred by Entry 1 of List II, read with

Entry 1 of List III of the Seventh Schedule the Madhya Pradesh
Legislature in the name of public order could not enacted the said
legislation. The legislation enacted by the State Legislature is
ultra vires the powers of the state legislature.

3. Section 5(1) and Section 5(2) of the M.P Dharma Swantantrya

Adhiniyam Act, 1968 amount to testimonial compulsion and
therefore, the said provision are violative of Article 20(3) of the
Constitution of India.

The High Court held that:

(1)There was no justification for the argument that Sections 3,4,5

of the M.P Act were violative of Article 25(1) of the Constitution.
The High Court in fact went on to hold that those sections
establish the equality of religious freedom for all citizens by
RIGHT TO FREEDOM OF RELIGION WITH
RESPECT TO CONSTITUTIONAL VALIDITY OF
ANTI-CONVERSION LAWS.
prohibiting conversion by objectionable activities such as
conversion by force, fraud and by allurement.

(2) The question of legislative competence, the High Court took

note of some judgments of this court and held that as the phrase
public order conveys a wider connotations as laid down by their
Lordships of the Supreme Court in the different cases, we are of
the opinion that subject matter of the Madhya Pradesh Dharma
Swantantraya Adhiniyam,1968 falls within the scope of Entry 1 of
List II of the Seventh Schedule relating to the State List regarding
public order.

(3)On the remaining point relating to testimonial compulsion with

reference to Article 20(3) of the constitution, the High Court held
that Section 5 of the Madhya Pradesh Act read with Form A,
prescribed by the Rules, merely made provisions for the giving of
intimation to the District Magistrate about conversion and did not
require its maker to make a confession of any offence as to
whether the conversion had been made on account of fraud,force
or allurement, which had been penalized by the Act. The High
Court thus held that mere giving of such information was not
violative of Article30(1) of the constitution. But the question of
testimonial compulsion within the meaning of the Article 20(3) of
the constitution has not been raised for our consideration.

HYPOTHESIS:

Anti-Conversion is not prohibiting the

Conversion but it is prohibiting the conversion by
force,allurement or fraud to protect the rights of
vulnerable groups like STs etc .