"Conversion debate" article by V.Venkatesan in the Frontline

Excerpts

The violence in Orissa is the result of prejudice caused by a flawed understanding of the freedom of religion as guaranteed by law.ORISSA was the first State in India to enact a piece of legislation restricting religious conversions. Rajendra Narayan Singh Deo, Ganatantra Parishad (Swatantra Party) leader, was the Chief Minister when the Orissa Freedom of Religion Act, 1967, was passed. This Act  became a model for several States, namely, Madhya Pradesh (1968), Arunachal Pradesh (1978), Gujarat (2003), Chhattisgarh (2003), Rajasthan (2005), Himachal Pradesh (2006), and Tamil Nadu (a law was enacted in 2002, but repealed in 2004)?  

The basic premise of the Orissa Act was debatable. The Act claimed: “Conversion in its very process involves an act of undermining another faith. This process becomes all the more objectionable when this is brought about by recourse to methods like force, fraud, material inducement and exploitation of one’s poverty, simplicity and ignorance.” As the Orissa Act became the model for other States, which provided more scope for abuse by the authorities than what the Orissa Act had envisaged, it deserves a close scrutiny. 

Both the Orissa and Madhya Pradesh Acts were challenged in the respective High Courts. The Orissa High Court declared the Orissa Actultra vires of the Constitution, insofar as it infringed upon the right guaranteed by Article 25.  However, the Madhya Pradesh High Court upheld the Madhya Pradesh Act.

The Supreme Court’s five-Judge Constitution Bench heard the appeals against these two verdicts in Rev. Stainislaus vs. State of Madhya Pradesh and Others (1977) and upheld these Acts. As the Supreme Court’s judgment became a sort of licence for other States to enact similar anti-conversion laws, it needs to be asked whether the judgment was correct. The court considered whether the two Acts were violative of the fundamental right guaranteed under Article 25(1) of the Constitution and whether the State legislatures were competent to enact them.

H.M. Seervai, the eminent author of Constitutional Law of India, whom the Supreme Court often cites in its many judgments as an authority in support of its conclusions, has pointed out in Volume 2 (1993) of his book that it was unfortunate that the legislative history of Article 25 was not brought to the Supreme Court’s attention in this case (page 1287)

Seervai was clear that Chief Justice A.N. Ray’s conclusion in the Stainislaus judgment ran counter to legislative history. He submitted that Chief Justice Ray did not ask the central question that was involved in the appeals before him, namely, whether conversion was a part of the Christian religion. This omission, he said, was indefensible because the judgment of the Orissa High Court delivered on October 24, 1972 (Yulitha Hyde vs. State), was under appeal to the Supreme Court and that judgment had squarely raised the central question whether conversion was a part of the Christian religion.

Seervai was convinced that the “freedom of religion” guaranteed in Article 25(1) is not limited to the religion in which a person is born but includes any religion. Freedom of conscience, he wrote, harmonises with this, for its presence in Article 25(1) shows that our Constitution has adopted “a system which allows free choice of religion”. Therefore, freedom of conscience gives a person freedom to choose or not to choose any one of the many religions that are being propagated.

He elaborated further: “The right to propagate religion gives a meaning to freedom of choice, for choice involves not only knowledge but an act of will. A person cannot choose if he does not know what choices are open to him. To propagate religion is not to impart knowledge and to spread it more widely, but to produce intellectual and moral conviction leading to action, namely, the adoption of that religion. Successful propagation of religion would result in conversion” (italics supplied by Seervai). Seervai concluded his discussion thus: “The Supreme Court’s judgment is clearly wrong, is productive of the greatest public mischief and ought to be overruled.” The huge atmosphere of prejudice against Christians in Orissa and elsewhere is based on a myth that conversion is unconstitutional. The words of Seervai, who passed away on the Republic Day in 1996, are indeed prophetic.  

Read the ull article here

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