Introduction
Is the practice of
religion a deeply private affair, confined to values and belief systems at the
level of the individual, or is it an open community activity, carried out in
the public domain with social participation? Does one person’s right to
practise his or her religion come in conflict with another person’s right to
propagate his or her religion? The United Nations guarantees the right to
convert to another religion, as a basic human right. In fact, this is what distinguishes some of the world's most despotic
nations from the democratic nations. In many despotic nations, religious
conversions as banned, except when the conversion is to the State religion. The Bharatiya
Janta Party has, for years been campaigning for the ban on religious
conversions, ostensibly to protect the poor Hindus from the “deep pocketed”
organised religions of Islam and Christianity.
A major part of this paper shall
focus on the ideology of the right wing Hindu organisations and their push for
anti-conversion laws. This paper shall discuss the point of these statutes is
to prevent conversion away from Hinduism. This paper shall also discuss how the
State machinery is being used to enforce Hindu agenda on the lower castes who
wish to convert away from Hinduism.
The advantages are quite obvious and include
freedom from the limitations imposed by society on the lower castes that
prevent them from realizing their true potential and restrict their
opportunities in the name of tradition and do not let them rise from their life
of poverty, deprivation and exploitation. Conversion allows them to break free
of the shackles that bind them to their misery and the feeling of being
unworthy and lower than others, of being treated as second-class citizens and
being made to carry on menial work generation after generation without
receiving any appreciation or recognition from society.
In this project, the researcher shall
elucidate the legal, political and social matrix surrounding the issue of
religious conversion in India. It shall also focus how religious conversions
often lead to the social upliftment of the people who have been denied equality
in the religion of their birth.
Hypothesis
“Religious conversions often
help in the social up-liftment of the poor and the so-called lower castes.
However, contemporaneous Hindutva
ideology has passed anti-conversion laws that make conversion away from
Hinduism impossible, but conversion to Hinduism practical.”
Anti-Conversion Laws
The current form of State, as it exists
today under the majority rule of the Bharatiya
Janta Party, has long since been accused of increasingly pervasive
involvement in personal and ethical matters of its citizens, be it the beef ban
in Maharasthra.[i]
the clamp down on free speech at Jawaharlal Nehru University in Delhi,[ii]
or the banning and censoring of several movies and books.[iii]
It should come as no surprise that they are also under fire from various
factions at their attempt to pass a Central Legislation banning religious
conversions.
The Dharam
Jagaran Samiti (DJS), an offshoot of the RSS and the Bajrang Dal, announced
in 2014 their target of converting (or as they claim, “reconverting”) one lakh
Muslims and Christians to Hinduism.[iv]
In fact, in December 2014, they converted 200 odd Muslims to Hinduism in Agra.[v]
This caught the media’s eye after the people who had been converted claimed
they had been misled into believing that they would be offered Below Poverty
Line cards by consenting to the conversion.
This seems to be odd, given the stance of
the BJP. Yogi Adityanath, a member of the Lok Sabha who contested on a BJP
ticket from the constituency of Gorakhpur and who is also a leader of the Hindu
Right on ghar vapsi events, stated
that if the Opposition (in Uttar Pradesh) was opposed to such conversions, they
should support the passing of a legislation that bans conversions (in U.P.).[vi]
Mr. Adityanath’s arguments, devoid of the divisive intent, seem to make sense.
The idea of passing a law that prevents the coercive and fraudulent conversions
to protect people’s religious beliefs seems to be in consonance with the
principles a democracy holds dear.
After Independence, the Lok Sabha sought to
introduce two bills that would help the curb the apparent menace of religious
conversions, the Indian Conversion (Regulation and Registration) Bill, 1954 and
subsequently Backward Communities (Religious Protection) Bill. Nehru opposed
these bills saying they, “will not help very much in suppressing the evil methods [of gaining
converts], but might very well be the cause of great harassment to a large
number of people…to suggest that there should be a licensing system for
propagating a faith is not proper. It would lead in its wake to the police
having too large a power of interference.”[vii]
However, a national law preventing religious conversions violates the federal
system of government as the Constitution states that these matters rest with
individual states.[viii]
Though these Bills were binned at the Centre, their State counterparts seem to
have a more successful run. When Orissa was ruled by the ruled by the
right-wing Swatantra Party, the “Freedom of Religion Act” was passed. Madhya
Pradesh, Gujarat, Himachal Pradesh soon followed suit. Chhattisgarh inherited
the law when it split from Orissa. Arunachal Pradesh has a similar law on
paper; however it has no enacted Formal Rules and hence it remains a dead
letter of the law. Rajasthan too has a law that awaits the President’s assent.
The laws in Himachal Pradesh and Arunachal Pradesh were passed when the
Congress government was in power, which shows that this is not merely a
right-wing ideology.[ix]
Though all of these legislations bear
seemingly innocuous names, these Orwellian legislations make religious
conversion practically impossible. These statutes are akin to each other, as
they all require intimation to or permission from a Magistrate before
converting to any religion. None of these ban conversions directly. They make forcible religious conversions a cognisable
offence under Sections 295A and 298 of the Indian Penal Code[x] and
ban conversions by “force, allurement, inducement or fraud”. As these terms can
be interpreted widely, decidedly vague, capricious and prone to being misused,
they have given the administration and its agents, draconian powers. The punishment for conversion is
doubled if it has been committed on a woman, child or a person hailing from the
Scheduled Castes or Scheduled Tribes.
The definition of
force includes the “threat of divine displeasure”, which means a Christian
missionary cannot propagate that a purely Christian heaven exists, which
incidentally forms a core part of the faith. It also prevents from missionary
from stating religious tenets that cannot be proved.
Post the enactment of the Orissa and Madhya
Pradesh statutes, the Supreme Court ruled on the
constitutionality of the two earliest anti-conversion statutes: the Orissa
Freedom of Religion Act, 1967 and the Madhya Pradesh Dharma Swatantraya
Adhiniyam, 1968, in Rev. Stanislaus v.
State of Madhya Pradesh.[xi] Chief Justice A. N. Ray,
who delivered the judgement, employed a nebulous approach to Article 25 of the
Constitution of India.[xii] Justice Ray interpreted the word “propagate,” to mean “to
transmit or spread one’s religion by an exposition of its tenets,” but to not
include the right to convert another person to one’s own religion. “It has to
be remembered that Article 25(1) guarantees ‘freedom of conscience’ to every
citizen, and not merely to the followers of one particular religion, and that,
in turn, postulates that there is no fundamental right to convert another
person to one’s own religion because if a person purposely undertakes the
conversion of another person to his religion, as distinguished from his effort
to transmit or spread the tenets of his religion, that would impinge on the
‘freedom of conscience’ guaranteed to all the citizens of the country alike.”[xiii] Simply put the Court,
after referring to Yulitha Hyde v. State
v. State of Orissa[xiv] held the adoption of a
new religion is the freedom of conscience while conversion to another religion
impinges on the freedom of choice. Justice Ray also stated that as any attempt
at conversion would adversely affect the community, the State legislative
bodies were competent to pass legislation that would likely avoid disturbances
to the public order by “prohibiting conversion from one religion to another in
a manner reprehensible to the conscience of the community.”[xv]
Suhrith
Parthasarathy, an advocate of the Madras High Court states that Justice Ray’s
reasoning conflates the issue and misses the point that the idea of propagation
of a religion includes the freedom of speech aimed at converting others, or
else any such right is purely illusory.[xvi] In fact, H. M. Seervai[xvii] reacted to the Stanislaus[xviii] decision by saying,
“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.”[xix]
When the matter was debated in the Constituent Assembly, there was considerable
discussion on the word “propagate”. In the course of the debate, Mr. T. T.
Krishnamachari pointed out, what is clear from the language of Article 25
itself, namely, that it was “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 it is subject to the public order, morality and other conditions that have
to be observed in any civilised society.”[xx]
In conflating a
person’s liberty to exercise free conscience for another person’s right to
propagate religion.[xxi] Justice Ray’s judgement
damaged the constitutional values enshrined in Article 25. Though the tangible
consequences of this ruling resulted in three more states enacting similar laws.[xxii] it created deeper
problems. It allowed the State and its machinery-the courts-to enter the
personal lives of its citizens. Anti-conversion statutes permit the State to
determine the constituents of an ‘illegitimate inducement’.
The evident problem
that presents itself is that majoritarian hard-line groups will prevent
Magistrates from permitting conversions to any faiths other than theirs. Colin
Gonsalves, a Supreme Court lawyer and the founder of Human Rights Law Network,
said that these statutes would only prevent voluntary conversions; forced
conversions would carry on in disregard of the law. The Indian Penal Code
already contains provisions that incriminate criminal intimidation and the mere
addition of another statute will not change the ground reality of forced
conversions.[xxiii]
Other Supreme Court advocates have said that religion is a matter of choice and
not of legislation, and any such statute would make a mockery of the law, as it
could never be enforced.
Hinduism and
Conversion
A
detailed reading of anti-conversion statutes makes it evident that the type of
conversion to be dealt with was conversion away from Hinduism to another faith,
especially Islam and Christianity. This attitude is further reinforced in
several legislations that carry statutory penalties for converting away from
Hinduism.
These
are the Hindu Law Bills passed in the 1955-56 period. They include Section 6 of
the Hindu Minority and Guardianship Act, 1956-which prevents converts from the
Hindu religion to be a guardian of a Hindu minor; Sections 7 and 8 of the Hindu
Adoption and Maintenance Act, 1956-which prevent non-Hindus from taking Hindu
children in adoption, Section 9(2)-which prevents a non Hindu from giving away
a Hindu child in adoption, Sections 18-24-which prevent a person from claiming
maintenance if he/she has ceased to be a Hindu; Sections 13(1)(ii) of the Hindu
Marriage Act, 1955-which makes conversion from the Hindu religion a ground for
divorce and 13A-which does not allow judicial separation to be granted in the
person has ceased to be a Hindu; and Section 26 of the Hindu Succession Act,
1956-which disqualifies the descendants of a convert from their Hindu
relative’s property.
Supporters
of these legislations often cite the use of force by Christian missionaries and
the indelible foreign hand in the conversion of the poor people and the lower
castes.[xxiv] The Meenakshipuram
conversion in 1981 where nearly 800 Dalit Muslims converted to Islam caused
uproar across the nation. BJP leaders like Atal Bihari Vajpayee travelled to
this small hamlet to find out the cause of this mass conversion, the Justice
Venugopal Inquiry Commission was set up to look into the conversion, the 1986
Law Commission Report recommended a law to ban forced conversions and in 2002
Tamil Nadu proposed an anti-conversion law. The Home Ministry put forward
evidence of foreign support, however multiple reports including on from the
Regional Director of the SC/ST Federation that this mass conversion was a form
of protest against the decades of humiliation suffered due to the practice of
un-touchability. In a Madhya Pradesh case, a Raigarh Court convicted two
priests and a nun of forcible conversions, despite letters sent to the District
Magistrate stating that the conversion was voluntary. [xxv]
A
more recent case of Hindu conversion is the ghar
wapsi program at Agra in December 2014. Several reports show how a small
village of Muslims suffering from abject poverty. Activists of the Bajrang Dal
and the DJS showed up and performed a ceremony of a few hours and then declared
that all of them had been reconverted into Hinduism. Ever since then, they have
been on the radar of both Hindu and Muslim political organisations that sent
them Gitas to read and prayer mats
for namaz, pulses, wheat and dry
rations. In fact, this small hamlet of 60 homes has been made a pawn in a
political battle between two religions. Not only were the fraudulently made to
believe that they would be given Below Poverty Line cards, but the function
organised to enrol them was actually a process by which right wing
organisations convert people to Hinduism. They were even offered plots of lands
and houses if they converted. The organisers - from the
RSS affiliates, DJS and the Bajrang Dal - maintain that
the Agra conversion was a voluntary ghar vapsi programme when reports appeared in the local
media the next day. The RSS-affiliated organisations use the term broadly to
mean a homecoming for Muslims and Christians back into the Hindu
fold. “There was no use of force,” Tikam Singh, an office-bearer of
the samiti, said. “Till the time all Hindus who were lured away don’t come
back, there can be no nationalism. This is the only country where the majority
is exploited and everyone else has protectors. We are trying to change that for
good.”[xxvi]
The BJP however, has used this deplorable incident to re-open the debate on
anti-conversion legislations.
To show other legal basis for the upper
caste Hindu agenda in religious conversions, the Supreme Court in February 2015
ruled that a person who
“reconverts” from Christianity to Hinduism shall be entitled to reservation
benefits if his forefathers belonged to a Scheduled Caste and the community
accepts him after “reconversion”.[xxvii]
This comes after the case of Principal, Guntur Medical College
versus Y. Mohan Rao.[xxviii] where it was held by Justice
Bhagwati that a person need not be a Hindu from birth to acquire an Scheduled
Caste status; if his parents had converted away from Hinduism, the child still
retains the caste of his parents if he/she decides to reconvert to Hinduism.
This 1976 ruling set the bar to one generation i.e. the child of the convert
and not their grandchildren. The 2015 ruling however, does away with this bar
and allows caste benefits to be regained no matter how many generations ago the
ancestors had converted, provided the caste can be verified. Judgements like
these in times of ghar wapsi merely
incentivise conversion to Hinduism. In fact, the word “reconversion” is
explicitly used in the order twenty three times.[xxix]
The order is
contradictory, in the sense that it first states, “Once such a person ceases to be a
Hindu and becomes a Christian, the social and economic disabilities
arising because of Hindu religion cease and hence it is no longer
necessary to give him protection and for this reason he is deemed not to belong
to a scheduled caste,”[xxx]
and then states that converts, “embrace other religions in their quest for liberation, but return to
their old religion on finding that their disabilities have clung to them
with great tenacity.”[xxxi]
At a time when religious conversions are
banned in 5 states across the country, the Supreme Court incentivizing
conversion to Hinduism seems like brute majoritarianism and politics at play.
The Hindu right wing defends this by stating how every person has a right to
preach their religion. While this is principally correct, it ignores the fact
that the playing field in the matter of religious conversions is not level. As
Daniyal puts it, “the state dangles carrots for conversions to Hinduism and
brandishes a stick for conversions out of Hinduism. Given this environment, ghar wapsi is not an exercise
celebrating freedom of religion; it simply becomes a project in brute
majoritarianism - a majoritarianism that seems to have received a formal seal
with the latest Supreme Court judgement.”[xxxii]
Conclusion
Conversion is often an uplifting act, which
allows downtrodden individuals to escape the structures and religious practices
that have been used to oppress them for thousands of years. Perhaps, the best
example of this would be Dr. Bhimrao Ramji Ambedkar, who himself converted to
Buddhism in 1956. He spent many years pushing for the conversion of Dalits away
from the oppressive structures of Hinduism. To quote his speech from the Bombay Presidency Mahar Conference
in 1936, Ambedkar declared that, “religion is for man and not man for religion.
For getting humane treatment, convert yourselves. Convert for getting
organised. Convert for becoming strong. Convert for securing equality. Convert
for getting liberty. Convert so that your domestic life should be happy.”[xxxiii]
Quite unsurprisingly, the Hindu organisations have
promised to do away with practices such as untouchability and caste
discrimination. However, their push for anti-conversion legislations makes
their real motives nebulous at best.
Any country that prevents people from
choosing their own faith is just a step away from imposing a State religion on
its citizens. Such regressive regimes can be seen in the Middle East, and for a
self proclaimed liberal democracy such as India, to start down such a path will
ultimately be self destructive.
If India decides that people can be legally
tied down to the religion of their birth and cannot exercise the complete
freedom accorded to them by the Constitution, will be the start of a lifetime
of measures where India starts treating its people as a conglomerate of
communities and not individuals.
References
1 1. H.
M. Seervai, Constitutional Law of India 1286-1289 (4th
ed. 1993).
2 2. Akeel Bilgrami, Taking Back Our Universities, The Hindu
3 3. Aprita Anant, Anti-conversion laws, The Hindu
4 4. Debate on Beef Ban, The Hindu
5 5. India’s debate on anti-conversion law deepens, UCANEWS.com
6 6. Jatin Gandhi, Forced into ‘homecoming’, The Hindu
7 7. Jaya Menon, The Other Conversion Story, Times of India
8 8. Krishnadas Rajagopal, Propogation without proselytization: what
the law says, The Hindu
9. Piyush Srivastava, 'We will free
India of Muslims and Christians by 2021': DJS leader vows to continue 'ghar
wapsi' plans and restore 'Hindu glory', Mail
Online India
10. Satish Nandgaokar, ‘Saffronising’
the Censors? The Hindu
11. Shanoor Seervai, The Arguments
For and Against a National Anti-Conversion Law, The Wall Street Journal India
12. Shoaib Daniyal, As clamour to
ban conversion grows, a reminder: five Indian states have already done so, Scroll.in
13. Shoaib Daniyal, How the
Supreme Court ruling on reservation benefits has given a boost to gharwapsi,
Scroll.in
14. Suhrith Parthasarathy, Conversion
and Freedom of Religion, The Hindu
15. Utkarsh Anand, Christian who reconverts as Hindu SC will get quota benefits:
Apex court, Indian Express
[i] Debate
on Beef Ban, The Hindu, http://www.thehindu.com/specials/in-depth/debate-on-beef-ban/article7164886.ece
(last updated May 2, 2015).
[ii] Akeel Bilgrami, Taking Back Our Universities, The
Hindu,
http://www.thehindu.com/opinion/lead/jnu-row-taking-back-our-universities/article8328011.ece
(last updated Mar. 9, 2015).
[iii] Satish Nandgaokar, ‘Saffronising’ the Censors? The
Hindu, http://www.thehindu.com/sunday-anchor/sunday-anchor-saffronising-the-censors/article6818986.ece
(last update Jan 25, 2015).
[iv] Suhrith Parthasarathy, Conversion and Freedom of Religion, The
Hindu,
http://www.thehindu.com/opinion/lead/conversion-and-freedom-of-religion/article6716638.ece
(last updated Dec. 23, 2014).
[v] Piyush Srivastava, 'We will free India of Muslims and Christians by 2021': DJS
leader vows to continue 'ghar wapsi' plans and restore 'Hindu glory', Mail Online India, http://www.dailymail.co.uk/indiahome/indianews/article-2879597/We-free-India-Muslims-Christians-2021-DJS-leader-vows-continue-ghar-wapsi-plans-restore-Hindu-glory.html
(last updated Dec. 19, 2014).
[vi] Parthasarathy, supra note 4.
[vii] Shoaib Daniyal, As clamour to ban conversion grows, a reminder: five Indian states have
already done so, Scroll.in,
http://scroll.in/article/679080/as-clamour-to-ban-conversion-grows-a-reminder-five-indian-states-have-already-done-so
(last updated Sep. 15, 2014).
[viii] India’s
debate on anti-conversion law deepens, UCANEWS.com,
http://www.ucanews.com/news/indias-debate-on-anti-conversion-law-deepens/73408
(last updated Apr. 17, 2015).
[ix] Daniyal, supra note 7.
[x] Krishnadas Rajagopal, Propogation without proselytization: what the law says, The Hindu, http://www.thehindu.com/sunday-anchor/propagation-without-proselytisation-what-the-law-says/article6711440.ece
(last updated Dec. 21, 2014).
[xi] AIR 1977 SC 908.
[xii] Article 25 reads as, “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 restricting any economic, financial, political or other secular activity
which may be associated with religious practice;
(b) providing
for social welfare 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 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.”
[xiii] AIR 1977 SC 908.
[xiv] AIR 1973 Ori 116.
[xv] AIR 1977 SC 908.
[xvi] Parthasaraty, supra note at 4.
[xvii] H. M.
Seervai, Constitutional Law of India (4th ed. 1993) 1286-1289
[xviii] AIR 1977 SC 908.
[xix] Seervai,
Constitutional Law of India ,
1289.
[xx] Seervai,,
Constitutional
Law of India, 1287.
[xxi] Parthasaraty, supra note at 4.
[xxii] Daniyal, supra note 7.
[xxiii] Shanoor Seervai, The Arguments For and Against a National Anti-Conversion Law, The Wall Street Journal India,
http://blogs.wsj.com/indiarealtime/2015/01/09/the-arguments-for-and-against-a-national-anti-conversion-law/
(last updated Jan. 9, 2015).
[xxiv] Aprita Anant, Anti-conversion laws, The
Hindu,
http://www.thehindu.com/thehindu/op/2002/12/17/stories/2002121700110200.htm
(last updated Dec. 17, 2002).
[xxv] Jaya Menon, The Other Conversion Story, Times
of India, http://timesofindia.indiatimes.com/home/sunday-times/deep-focus/The-other-conversion-story/articleshow/45747192.cms
(last updated Jan. 4, 2015).
[xxvi] Jatin Gandhi, Forced into ‘homecoming’, The
Hindu, http://www.thehindu.com/sunday-anchor/conversion-confusion-forced-into-homecoming/article6711441.ece
(last updated Dec. 21, 2014).
[xxvii] Utkarsh Anand, Christian who reconverts as Hindu SC will get quota
benefits: Apex court, Indian Express,
http://indianexpress.com/article/india/india-others/christian-who-reconverts-as-hindu-sc-will-get-quota-benefits-apex-court/
(last updated Feb. 27, 2015).
[xxviii] 1976 AIR SC 1904.
[xxix] K. P.
Manu v. Chairman, Scrutiny Committee for Verification of Community Certificate,
(2015) 4 SCC 1.
[xxx] K. P.
Manu v. Chairman, Scrutiny Committee for Verification of Community Certificate,
(2015) 4 SCC 1, ¶11.
[xxxi] K. P.
Manu v. Chairman, Scrutiny Committee for Verification of Community Certificate,
(2015) 4 SCC 1, ¶21.
[xxxii] Shoaib Daniyal, How the Supreme Court ruling on reservation benefits has given a boost
to gharwapsi, Scroll.in,
http://scroll.in/article/710201/how-the-supreme-court-ruling-on-reservation-benefits-has-given-a-boost-to-gharwapsi
(last updated Feb. 28, 2015).
Introduction Is the practice of religion a deeply private affair, confined to values and belief systems at the level of the ind...
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