Ban on Induced Religious Conversion is Constitutional

Ban on Induced Religious Conversion is Constitutional

Himachal Freedom of Religion Act

Dr Subramanian Swamy

The Himachal Pradesh High Court Bench has
handed down a landmark judgement on the HP Freedom of Religion Act (HPFRA)
holding it to be Constitutional. The Act was challenged by Christian missionary
organisations as against the Constituiton and secularism.

The Bill to enact the Act was in fact moved by a
Congress-led Government of Virbhadra Singh, the maverick Chief Minister in the
Himachal Pradesh Assembly, and it was unanimously passed in 2006. It
received Governor’s Assent on 18.2.07.

The Object for the said Act was framed in the
Preamble as a “prohibition of conversion from one religion to another by the
use of force or inducement or by fraudulent means and for matters connected
therewith or incidental thereto”.

In 2011, two Writ Petitions were filed in the HP
High Court by two Christian missionary organisations challenging the
constitutionality of the Act and the Rules framed under the Act. There was no
explanation given for this long delay of four years between the Bill’s
enactment and the Christian missionaries approaching the High Court.

The main point that the two Petitioners sought to
make was that the Act was unconstitutional since it sought to deter the
Christian missionaries from exercising their fundamental rights of propagation
and conversion activities, which they said was guaranteed under Article 25 of
the Constitution.

They also charged that the HPFR Act was to
frighten a citizen from freely exercising his or her fundamental right to
convert to Christianity.

I decided to intervene in the case at the urging
of the VHP. The Court permitted me to lead arguments, which I did at length. I
raised five main objections to these Writ Petitions.

First, I argued that the petitioners had no locus
standi, because they had not adduced any legally valid evidence that anyone has
been aggrieved by this newly enacted statute, viz., HPFRA. It was also apparent
from that none of the three Petitioners were not personally aggrieved
from any infringement of their fundamental rights to get converted.

Second, the major flaw in the two Petitions was
that there has been a failure of the Petitioners to distinguish their
respective cases from the Constitutional Bench judgement of the Supreme Court
in the Rev. Stainislaus vs State of Madhya Pradesh (AIR 1977 SC 908 Vol II,
p.55), and which judgement holds the field today.

This was a serious flaw since most of the
Sections and Rules of the HPFRA were identical to such Acts in other States,
which were considered by the Supreme Court Constitutional Bench and were upheld
as constitutional. Thus, there is no question of considering the ultra vires
of the Act or the Rule making power under it.

Third, the Supreme Court [Bennet Coleman case
(1972) 2 SCC 788] had held that the test in determining the question whether a
legislation or executive action infringes the fundamental rights is to examine
its effects and not its object or subject matter. The Petitioners failed to do
so in this regard.

Although the Petitioners have sworn in their
affidavits that all the facts in their respective Petitions are to their
“personal knowledge” yet it is obvious that the violent incidents and instances
of intimidation cited in the Petition and alleged to be a consequence of
enacting the impugned legislation, could not have been to their personal
knowledge since they have not sworn that they were at the site of the said
incidents.

Fourth, the Constitutional Bench of the Supreme
Court Court held in the Stainislaus Case that such Freedom of Religion Acts
fall within the purview of Entry II of the Seventh Schedule of Article 246 of
the Constitution “as they are meant to avoid disturbances to the public order
by prohibiting conversion from one religion to another in a manner
reprehensible to the conscience of the community”.

The Apex Court in the said Stanislaus Case also
observed that “it cannot be predicated that freedom of religion can have no
bearing whatever on the maintenance of public order or that a law creating an
offence relating to religion cannot under any circumstances be said to have
been enacted in the interest of public order”.

This ruling has since been re-affirmed in recent
judgements of the Supreme Court. In Rabindra Kumar Pal @ Dara Singh v. Republic
of India [in (2011) 2 SCC 490 at para 97], the Court said, “There is no
justification for interfering in someone’s religious belief by any means”.

In the Stainislaus judgement, the Supreme Court
held that (para. 22) “if forcible conversion had not been prohibited, that
would have caused public disorder in the States (of Madhya Pradesh and
Orissa)”.

Thus, I argued, the Petitioners had been derailed
by focusing on the right to convert when in fact they ought to have been
concerned about public order that would be disturbed by fraudulent forced or
induced conversions.

Induced or forced religious conversions, thus,
arising from demeaning other religions have impacted on pluralism in society,
and on the religious demography of the nation and hence there are dire
consequences for public order, public health and public morality. The State
thus has to act as a deterrent.

Fifthly, the necessity for placing reasonable
restrictions on the right to propagate religion in Independent India was
emphasised during the freedom struggle by Mahatma Gandhi and Sardar Vallabhbhai
Patel.

Hinduism, which is the only theology which
explicitly accepts that all religions lead to God is thus inherently committed
to secularism and hence tolerant of other religions. In the Vedas, it is
repeatedly stated Ekam Sat Vipra Bahuda Vadanti. No other religion
states this. Parsis, Jews, Syrian Christians, and Moplah Muslims in India
testify to this.

But Christianity and Islam are not inherently
secular and are fundamentally predatory proselytising theologies that do not
accept any other religion.

Hence, an underlying concern of modern India’s
founding fathers of the Constitution has been how to ensure that there is a
stable religious demography in the country and thus continued plurality in
worship in modern India.

For this objective and concern, in Jammu &
Kashmir for example, Article 370 was incorporated in the Constitution to
prevent migration of people from the rest of India into the state and disturb
the religious demography.

However, in Kashmir Valley, being majority
Muslim, we have witnessed forced emigration of Hindu Pandits and Sikhs, out of
the State leading besides forcible conversions to Islam.

The said Article failed thus to provide
protection for forced emigration of Hindus from the State. In varying degrees,
this has been the fate of Hindus wherever they are in a minority.

The Indian Republic therefore can preserve a
liberal religious outlook only if the Hindus remain in overwhelming majority in
the country. Any rapid change in religious demography will therefore cause a
huge public disorder.

That is, to safeguard secularism, we cannot allow
the present religious demography to be wholesale altered by induced, forced or
fraudulent conversions to Christianity and Islam.

Democratically elected state governments have
thus been constitutionally empowered to take pre-emptive action to deter any
kind of forced or bribed conversion because it de-stabilises the religious
demographic structure of the nation.

Much noise has been made by the Evangelists about
the High Court direction to delete Section 4 of the Act. The fact is that the
Congress government which passed the Act had poorly drafted it, and I had
agreed that the BJP HP government must bring an amendment to replace Section 4
as presently drafted. Section 4 only required that anyone intending to convert
should first inform the police. The word “intend” if replaced with “decided”
will make it acceptable.
The important result is that banning of induced
conversions has been held to be constitutional. This is a total defeat of the
Christian missionaries.