In curious proceedings before the Supreme Court with far-reaching implications for the constitutional guarantee of freedom of conscience, the Narendra Modi government has submitted a formal affidavit declaring that the “right to freedom of religion does not include a fundamental right to convert other people to a particular religion”.
The government has said this even though it quotes Article 25 of the Indian constitution which guarantees all persons in India (and not just citizens) freedom of conscience and the right to free profession, practice and propagation of religion. The shoddy draftsmanship of Union Home Minister Amit Shah’s babus on North Block refers to the “right to conscious” but we shall let that pass. The crucial argument made by the government is that the Supreme Court has, in its Stanislaus judgment of 1977, already declared that the right to ‘propagate religion’ under Article 25 does not include the right to convert but rather “is in the nature of the positive right to spread once [sic] religion by exposition of its tenets”.
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The context of this argument is not academic. A number of states ruled by the Bharatiya Janata Party have enacted or are seeking to pass stringent laws criminalising any religious conversion – and especially conversions linked to inter-religious marriage – which does not have the sanction of the government. As if this were not bad enough, a serial litigator from the BJP has now moved the Supreme Court demanding that the Union government and all states be directed to take “stringent steps to control fraudulent religious conversion”.
The fundamental flaw in the Modi government’s argument is that the right of a person, say X, to adhere to a religion of her choosing, or to none at all, and to change that adherence at will, falls under X’s freedom of conscience and has nothing to do with whether Y’s right to propagate a religion includes the right to convert another person or not.
Given that freedom of conscience includes every manner of belief, including political ones, this is analogous to X’s right to adhere to any political view she wishes to. Y has the right to try and convince X to join their party but Y obviously has no fundamental right to induct X as a member. The Constitution grants X the right to take her own decisions based on her freedom of conscience and this includes deciding which religion to follow and which political party to support. Once X makes a decision to convert to a particular religion or join a particular party, it is surely up to the officeholders of that religion or party to induct them as per their own rituals.
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The religious convert may be baptised or subjected to ‘shuddhi’, and the political convert may be garlanded and fed laddoos. Just as it would violate the constitution and basic democratic morality for the state to demand that X inform the local authorities (that too, in advance) about which party she intends to join, so is the requirement that she inform the district magistrate about any change in her religious beliefs. Earlier laws seeking to regulate religious conversion, such as the 1968 Madhya Pradesh’s Dharma Swatanrya Adhiniyam, had the fig leaf of making it mandatory for the person performing the act of conversion to inform the government in advance. But the new crop of laws in Gujarat and Madhya Pradesh go one step further and require the person converting to essentially secure government approval first.
The Madhya Pradesh high court last month stayed the operation of the new Madhya Pradesh Freedom of Religion Act, 2021 on the grounds that this provision ran counter to the fundamental right to privacy upheld by the Supreme Court in 2017. The court also cited Justice Deepak Gupta’s landmark 2011 judgment (when he was a judge of the Himachal high court) striking down similarly worded sections of a state law on the grounds of freedom of conscience:
“A person not only has a right of conscience, the right of belief, the right to change his belief, but also has the right to keep his beliefs secret. No doubt, the right to privacy is, like any other right, subject to public order, morality and the larger interest of the State… However, this does not mean that the majority interest is the larger public interest. Larger public interest would mean the integrity, unity and sovereignty of the country, the maintenance of public law and order. Merely because the majority view is different does not mean that the minority view must be silenced…
“A man’s home is his castle and no invasion into his home is permissible unless justified on constitutional grounds. A man’s mind is the impregnable fortress in which he thinks and there can be no invasion of his right of thought unless the person is expressing or propagating his thoughts in such a manner that it will cause public disorder or affect the unity or sovereignty of the country.
“Why should any human being be asked to disclose what is his religion? Why should a human being be asked to inform the authorities that he is changing his belief? What right does the State have to direct the convertee to give notice in advance to the District Magistrate about changing his rebellious thought?
“A person’s belief or religion is something very personal to him. The State has no right to ask a person to disclose what is his personal belief.”
What Justice Gupta wrote 11 years ago has been further strengthened by Puttuswamy. The attempts by BJP state governments to press ahead with this dangerous assault on the freedom of conscience and the Modi government’s own attempts to weaken Article 25 need to be firmly resisted.
This article was first published on The India Cable – a premium newsletter from The Wire & Galileo Ideas – and has been republished here. To subscribe to The India Cable, click here.
