Anti Conversion Law

BY: Omprakash Kiit law school Anti-conversion Law and its Constitutional validity In this chapter, before going to the question of validity of Anticonversion law, first of fall we must know that what is Anti-conversion law ? and why there is need of enacting the Anti-conversion law by State? 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 state have their Anti-conversion law . the following state have their Anti-conversion law (1)Madhya Pradesh which Act is known as the (2)Orrisa (3)Tamil naidu (4)Gujarat (5)Rajasthan (6)Himanchal Pradesh (7)A.P And there are more states is planning to introduced their Anti-conversion law like Jharkhand and Uttarakand is ready to enact their Anti-conversion law. All the seven states which have their Anti conversion law Before enacting the Anti conversion law , State have following two assumption on which State Government enact the Anti conversion law: (1)People who converts in group may not have freely chosen conversion

(2)Groups are particularly vulnerable to being lured into changing their religion. This put a question before us that ,why State taking this two as assumption for enacting the Anti-conversion. For understand this we have taken the example of Madhya Pradesh which is the first state to enact the Anticonversion, why the M.P State Government enacted the Anti conversion law. In Madhya Pradesh, having a large population of tribal known as “Adivasis”, the Government received number of reports that large-scale conversions of tribal to Christians are taking place by threat, inducement and other fraudulent means by foreign missionaries and the Government should put an end to this unhealthy practice. The Government then constituted an inquiry commission headed by Dr Bhavani Shankar Niyogi, a retired Judge of the Madhya Pradesh High Court, and comprising five members. One of the members of the Commission was S.K. George, a Christian and a true Gandhian and working as a professor in a college at Wardha. The Commission toured fourteen districts and visited seventy- seven places. It examined 11,300 persons coming from 770 villages and sent questionnaires and received reports from 375 institutions, which included 55 Christian institutions. It also sent questionnaires to prominent individuals of the State. After such detailed and elaborate inquiries the Commission submitted a comprehensive report to the government in 1966. Some of the important recommendations made by the Commission were as follows:1) Christian missionaries are converting innocent and ignorant people to Christianity by offering various inducements such as free education, free medical facilities and employment opportunities. 2) Christian institutions are receiving funds and other contributions from foreign countries. 3) These Christian institutions are controlled by the Churches of foreign countries. 4) It is, therefore, necessary to enact legislation banning conversion. On these recommendations of the Commission, the Madhya Pradesh Government passed the anti-conversion law known as Madhya Pradesh Swantraya Adhiniyan Act, 1966 prohibiting

conversion from one religion to another religion and following Madhya Pradesh Orissa enacted the Act called Orissa freedom of Religion Act 1967. This was soon followed by the Arunachal Pradesh Freedom of Religion Act 1978 to provide for prohibition of conversion from one religious faith to another by use of force or inducement or by fraudulent means. The Union Territory of Tripura also passed a similar enactment. The Parliament as early as 1954 took up for consideration legislative enactment banning conversion known as Indian Conversion (Regulation and Registration Bill and later in 1960 the Backward Communities (Religious Protection) Bill and they had to be dropped for lack of majority support. A Bill was introduced in Parliament by a member O.P. Tyagi called “The Freedom of Religion Bill 1978”. The Bill was a modified and improved version of the legislative enactments of the Madhya Pradesh and Orissa. As there was no sufficient support in Parliament the Bill was withdrawn by the private member O.P. Tyagi.

Legislative history The legislative history relating to the issue of conversion in India underscores the point that the authorities concerned were never favourably 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 AntiConversion Act 1946. Similar laws were enacted in Bikaner, 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 cognisable 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 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).

Research issues -: For doing this research,we have faced the following research issues:

1. Whether the Anti-conversion law are violative of Article 25 and other constitutional provisons like Article 14, 19 etc ? 2. Was conversion included in propagation and consequently in freedom of religion ? 3. Was the subject of conversion debated in the constitutent assembly and what was the outcome and what was understanding of the expression “propagate” ? 4. Whether the conversion is hurting the Indian sovereignty ? 5. Whether the conversion can hit the public or destroy the public order ?

6. How can one determine whether converted have been forced, lured , or tricked ? 7. Whether the state legislature in the name of public order enacts the anti conversion law ?

Hypothesis : Hypothesis for this research topic, we researcher have choosen this 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 ”

Intend of our founding father There was heated, extensive debate in the Constituent Assembly about the expression “propagation”. Loknath Misra was opposed to the expression. He proposed an amendment to delete the word “propagate” from the article. This amendment was rejected. K T Shah mentioned that there are “religions which are professedly proselytising”, obviously referring to Islam and Christianity. He was not against what he called “propaganda of religion” (meaning conversion), which is “calculated to change the religion or form of belief or worship inherited with one’s parentage”, provided the limitations in his proposed amendment were accepted. The principal limitation was that there should be no propagation in institutions receiving aid and consisting of young children. Pandit Lakshmi Kanta Maitra (W Bengal” stated that “the Indian Christian community happens to be the most inoffensive community in the whole of India”. He expressed the view “that 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? I do not see any harm in it”.1 Krishnaswami Bharathi (Madras) said, “So far as my experience goes, the Christian community have not transgressed their limits of legitimate propagation of religious view and on the whole they have done very well indeed. It is for other communities to emulate them and propagate their own religions as well”. He emphasised, “It is very necessary that we should show tolerance. That

is the spirit of all religions. To say that some religious people should not do propaganda or propagate their views is to show intolerance on our part”.2 K Santhanam felt the word “propagate” was unnecessary because propagation is merely a facet of freedom of expression. He noted that the word “convert” was not in the article. He was however happy that no “unlimited right of conversion has been given”, obviously referring to the right to propagate one’s religion and the limitation in the Constitution that this right is subject to public order, morality and health. 3 Rohini Kumar Chaudhari (Assam) had “no objection 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”. 4 The speech of T T Krishnamachari (Madras) is significant. He said, “I know as a person who has studied for about 14 years in Christian institutions that no attempt had been made to convert me from my own faith and to practise Christianity. I am very well aware of the influences that Christanity has brought to bear upon our own ideals and our own outlook, and I am not prepared to say here that they should be prevented from propagating their religion. I would ask the House to look at the facts so far as the history of this type of conversion is concerned. It depends on the way in which certain religionists and certain communities treat their less fortunate brethren. The fact that many people in this country have embraced Christianity is due partly to the status that it gave to them. Why should we forget that particular fact?” He concluded his speech by saying it is only fair to give “the same right to every religionist — to propagate his religion and to convert people, if he felt that it is a thing that he has to do and that is a thing for which he has been born and that is his duty towards his God and his community”. 5 K M Munshi, who had taken a leading part in the framing of the Constitution, pointed out that he “was a party from the very beginning to the compromise with the minorities, which ultimately led to many of these clauses being inserted in the Constitution and I know it was on this word (propagate) that the Indian Christian community laid the greatest emphasis, not because they wanted to convert people aggressively but because the word ‘propagate’ was a fundamental part of their tenet... 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”. He urged that the word propagate “should be maintained in this article in order that the compromise so laudably achieved by the Minority Committee should not be disturbed”.6

Freedom of religion ultimately enacted in Article 25 of our Constitution inter alia provides that subject to public order, morality and health every person has the fundamental right freely to profess, practice and propagate religion. The debates in the Constituent Assembly clearly indicate that our founding fathers did recognise that conversion was implicit in propagation of religion and that the expression “propagate” was deliberately incorporated because Islam and Christianity are proselytising religions. In this context the rejection of Loknath Misra’s proposed amendment to delete the word “propagate” is noteworthy.7 Our founding fathers were not swayed by narrow-mindedness and prejudices against certain religious minorities. They displayed broad-mindedness and the spirit of tolerance in keeping with our tradition which is most heartening. The crying need of the hour is to preserve that spirit of tolerance in all religious communities which is a must for creating an atmosphere conducive to mutual trust and understanding so essential to the welfare of our multi-religious, multi-cultural nation.

Constitutional validity of Anti-conversion law The constitutional validity of Anti-coversion 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 The Orissa Freedom Of Religion Act, 1967 . the brief fact of this case , there are four petitioners who are Indian citizens and are Christain belonging to the Roman Catholic church are permanent resident of Orrisa. The petitioners number 2 and 4 are Priests who claim to have dedicated themshelves 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. (a) The State Legislature has no legislative competency to legislate on matters covered by the Act (b)The Act infringes the fundamental rights guaranteed under Article 25 of the constitution. In the end, Orrisa High Court held that (1)Article 25(1) guarantees propagation of religion and conversion is a part of the Christian religion. (2)Prohibition of conversion by “force”or by ”fraud ” as defined by the Act would be covered by the limitation subject to which right is guaranteed under Article 25(1). (3)The definition of the term ‘inducement’ is vague and many proselytizing activities may be covered by the definition and the restriction in Article 25(1) cannot be said to cover the wide definition. (4)The State Legistlature 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. Another case which came before the Madhya Pradesh High Court and challenged the constititutional 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. Stainislaus 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 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.