The forgotten promise of India

Fundamental rights explicitly guaranteed by the Constitution are being casually eroded in the garb of religious freedom laws

Article 15 of the Constitution reads: “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.”

On December 13, 2015, Rediff interviewed the man who would go on to become the chief minister of Uttar Pradesh (“Yogi Adityanath proposes anti-conversion law, without ban on ‘reconversion’’). “We have reconverted several lakh Muslims and Christians over the past ten years,” he claimed, speaking of the activities of his organisation, the Hindu Yuva Vahini, “What I am doing is simply taking such people back to their old home from where they were weaned away through inducement or coercion.” 

He explained why he wanted the exemption for his conversions: “So what if someone’s ancestors were converted to Islam or Christianity several hundred years ago? Time is of no consequence. Therefore, all those Hindus who were compelled to switch over to Islam during Mughal emperor Aurangzeb’s rule — when most mass conversions took place — should get exemption under the new law that the BJP wants to legislate.” 

Adityanath was elected UP chief minister a couple of years later. On November 21, 2019, the UP Law Commission under Justice Aditya Nath Mittal presented a draft Bill to Adityanath against conversions that incorporated what he had asked for. It included the line: “Provided that, if any person reconverts to his immediate previous religion, shall not be deemed to be a conversion under this Act.”

The Bill increased punishment to five years (seven in the case of women, Dalits and Adivasis). It reversed the burden of proof on the person proselytising. It requires anyone wanting to change their faith to fill out a form one month in advance, to the district magistrate or the additional district magistrate specially authorised by the district magistrate. It requires the person changing their faith to send a declaration on a form after their conversion within a month of the conversion. It requires the district magistrate to “exhibit a copy of the declaration on the notice board of the office” till he confirms the conversion. 

Justice Mittal’s draft Bill is accompanied by a report which contained this observation: “Some organisations are enticing Hindus, especially the Scheduled Castes and Scheduled Tribes, to convert for their own gains. In the process, these organisations are making people insult their religious traditions and rich culture”.

Illustration by Binay Sinha

 

The cover page of the report has the visual of a man in begging posture. Four disembodied hands are offering him cash, medicines, a baton with the word “job” on it and one holding out a Bible. Chapters in the report include “Recent newspaper cuttings regarding forcible conversions”, “anti-conversion laws in neighbouring countries”, “pre-Independence and post-Independence anti-conversion laws in India”, “anti-conversion acts of various states of India along with comparative study” and “proceeding of UP Legislative Assembly regarding anti-conversion.”

It recommends that there be total restriction on conversion by marriage. It says “the majority of conversions are regarding the members of Scheduled Castes and Scheduled Tribes on the ground of allurement, better education, better lifestyle and other aspects.” 

The report used the word freedom 306 times and the word conversion or convert 1,013 times showing where the priority was. It used “liberty” 13 times but “allure” 92 times, “induce” 55 times and “force” 198 times. Hinduism features in 18 places, but Islam in 84 and Christianity in 110. The Bill is written with a set of assumptions, backed by little other than prejudice.

UP is set to become the 11th Indian state to adopt a law on “Freedom of Religion” (which is what they are all called), aimed expressly at curbing religious freedom. In 1973, the High Court of Orissa struck down the first law, legislated by  Odisha, saying that its definition of what constituted inducement to convert were vague and that a state legislature lacked the jurisdiction to write such a law on religious freedom which was the prerogative of Parliament. It concluded that Article 25 guaranteed the right to propagate and that conversion was a fundamental part of Christianity.

This judgment was overturned by the Supreme Court in 1977, which said that regardless of Article 25, there could be no such thing as a fundamental right to convert. Legislation regulating this was valid and that the word “propagate” in the right did not mean convert but to communicate and broadcast one’s faith.

But the fact is that on December 6, 1948, the Constituent Assembly had debated the issue and particularly whether the word “propagated” in the sense of “converting” ought to be retained in the law.

Speakers, including Pandit Lakshmi Kanta Maitra and TT Krishnamachari, spoke in favour of Christian proselytisation especially and sought the retention of the word, which was of course retained in Article 25. Like with the right to free speech and peaceful assembly, Indians have a highly qualified freedom of religion.

In 2016, India scored “high” on the Pew Research Center’s Index of Government Restrictions on religious freedom. India rose from 4.8 in 2007 to 5.1 on the index, compared with 2.8 for the world.

Afghanistan, Bangladesh, Israel, Pakistan, Sudan and Ethiopia were among the other nations with restrictions as severe as India’s. In 2019, India again scored “high” while scoring “very high” on the Social Hostilities Index.

The 2020 United States Commission for International Religious Freedom report said that “while India’s Constitution protects the right to proselytise, 10 states have anti-conversion laws criminalising conversion using force, allurement, inducement, or fraud, but many use vague language that can be interpreted as prohibiting consensual conversions.

There is little concern in India, as freedoms that have been explicitly guaranteed by the Constitution and its writers, have been casually eroded by the judiciary, goaded on by an aggressive majoritarianism.