January 30, 2015 ☼ constitutional morality ☼ constitutionalism ☼ freedom ☼ freedom of expression ☼ liberal nationalism ☼ Provocations ☼ Public Policy ☼ religious freedom ☼ supreme court
This is an archived blog post from The Acorn.
The last few months have seen the return of religion-related issues into the public discourse. While many of these issues have existed on the agenda of religious-political organisations for decades, their contemporary emergence might has been triggered by electoral calculations and a new public mood for them. It is understandable that many—including, at times, this blogger—have been exasperated by their acquiring centre-stage at a time when India’s growth priorities lie elsewhere.
However, the emergence of contentious issues relating to the place of religion is also an opportunity for another generation to re-examine the balance the Indian Republic has struck on those very issues, and hopefully, allow us to get past them and onto the more important items on the public agenda.
The rather clear constitutional position—laid out in Article 25 of the Constitution and elsewhere—was muddied by a confused 1977 Supreme Court judgement (Stanislaus v State of Madhya Pradesh) where a bench headed by Chief Justice A N Ray drew a specious distinction between a fundamental right to propagate (that he ruled is constitutional) against a ‘right to convert’ (that he ruled does not exist). He arrived at this conclusion because he reasoned that one’s right to convert violates another’s freedom of conscience, and therefore is untenable.
In his monumental three-volume Constitutional Law of India, H M Seervai argues that the “Supreme Court’s judgement is clearly wrong, is productive of the greatest public mischief and ought to be overruled.” Seervai’s contends that conversion due to force or fraud is clearly unconstitutional because “if A converts B by force or fraud, B is deprived of his freedom of religion and freedom of conscience.” So the only question relates to the constitutionality of conversion by persuasion. Chief Justice Ray, Seervai argues, “mistakenly believed that if A deliberately set out to convert B by propagating A’s religion, that would impinge on B’s”freedom of conscience“. But…the precise opposite is true: A’s propagation of his religion with a view to its being accepted by B, gives an opportunity for B to exercise his free choice of a religion.”
Seervai’s arguments were consistent with the intentions of the Constituent Assembly. He quotes K M Munshi’s speech on the background of Article 25(1) in the Assembly. Munshi states: “So long as religion is religion, conversion by free exercise of the conscience has to be recognised. The word ‘propagate’ in this clause is nothing very much out of the way as some people think, nor is it fraught with dangerous consequences.”
Unfortunately, until a bigger bench of the Supreme Court revisits the 1977 judgement, we have to live with the ‘public mischief’ it has encouraged. There is no doubt that the framers of the Constitution intended to permit conversions as long as there was no force or fraud involved.
That indeed is the liberal position. In The Acorn’s opinion, inducements and allurements cannot be distinguished from other forms of persuasion. A person ought to be—and is in India—free to convert to any faith for any reason, including financial ones. There is no reason why a citizen cannot sell her soul to the highest bidder, and no reason why she cannot repeat this auction every day. May the highest bidders win, day after day! (As an aside, it is likely that the reservation price for a soul will rise in tandem with per capita GDP.)
In a discussion some weeks ago, a thoughtful colleague noted that while this may be all right in case of individual conversions, large scale conversions change demographics and can be detrimental to national security and the very values in the Constitution that enable such conversions. This is a fair and valid point. Even so, like all other liberties, freedom of religion must be safeguarded without taking it away.
Amid all the heat and noise of partisanship and prejudice, the public discourse does not frame the question properly. The question is what is the proper the role of the state and the government in matters of conversion? The correct answer is that it has—or ought to have—no role, other than to prevent force and fraud, and punish those who engage in them.
Individuals and religious organisations have—and ought to have—the right to persuade people into converting to their faith. The Vishwa Hindu Parishad and other Hindu organisations should be free to organise “ghar wapsis”, “shuddhis”, re-conversions and indeed fresh conversions, individually or in their thousands, by persuasion, inducement or allurement. Not by force or fraud. The Church should be free to convert people, individually or in their thousands, by persuasion, inducement or allurement. Not by force or fraud. Muslims should be free to convert people, individually or in their thousands, by persuasion, inducement or allurement. Not by force or fraud. So too everyone else.
The government must remain agnostic (pun unintended) while people should be free to choose from the options available. As Seervai says, it is the existence and ability to exercise choice, that makes their freedom of conscience a reality.
None of this is the government’s business. To the extent that ghar wapsis and other conversions do not have implicit or explicit support of the state, use or connivance of the government machinery or wilful negligence to prevent force and fraud, there cannot be any objection to them.
Far from getting worked up over the VHP’s ghar wapsi campaign, the focus of the public discourse ought to be to examine the concerned government’s role. There have been cases, as in Y S Rajasekhar Reddy’s administration in Andhra Pradesh, where state government machinery was used to support and abet conversions. This is clearly wrong. If Christian missionaries conduct similar conversions without the government’s support (or opposition) then they are within their rights to do so. Those who think this is a problem can organise themselves and use persuasion to prevent and indeed, re-convert people that the missionaries have converted. They too are within their rights to do so.
Some have proposed a new law to ban all conversions. Such a law is not only deeply illiberal but positively untenable under the Constitution. If today all sorts of laws—from those proscribing conversions to those requiring changes of faith to be approved by government office—are in force, it is in no small measure due to the judiciary’s failure to interpret Article 25 as in its letter and spirit. We will have to await a more enlightened Supreme Court bench to reset the constitutional position to one where the 1977 judgement is overruled.
In the meantime, there is no doubt that persuasion is the only instrument any religious organisation can use to propagate its faith and win converts.
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