Policing faith
India’s anti-conversion legislation: Lasting damage and endless repercussions
BY RAJEEV DHAVAN
India’s present controversies over ‘conversions’ have little
meaning outside the politics of Hindutva. An anxious and vindictive sangh
parivar’s stance – that no conversions of Hindus should take place – is clearly
that conversions out of Hinduism are bad but reconversions back into Hinduism
are welcome. What is flaunted as a policy against all conversions has been
tailored to suit Hindutva’s needs. There are therefore clear contradictions in
the Hindutva standpoint. According to this view, conversions must stop but
reconversions are to be encouraged. People should move into Hinduism but not out
of Hinduism.
The sangh parivar’s stance on conversion and reconversion is
mired in communal fundamentalism. No argument on conversion exists in a vacuum,
and the sangh parivar’s policies on conversion are also part of a communal
policy of persecution of Christians and Muslims. Unlike fundamentalism which
consists of a diehard belief in one’s own faith, communalism goes further to
pursue a policy of persecution towards other faiths through legal and illegal
coercive methods. Fundamentalism and communalism may feed each other. A
fundamentalist is entitled to cling to his orthodoxy but a communalist is as
menacing as his persecution. Proselytism is not communal per se. Many faiths
claim to seek to convert others, just as present-day Hindus seek to ‘reconvert’
non-Hindus.
I have no doubt that in India’s past conversions took place for
‘genuine’ and ‘material’ reasons – and usually a mixture of both. Ambedkar urged
Dalits to convert to Buddhism. Islam carries the allure of equality of all in
the eyes of Allah even though Hindu social stratification has caught up with
many Indian Muslim believers. It seems astonishing that Dalits are made to eat
excreta in Tamil Nadu and persecuted for leaving the faith by conversion. And it
is not altogether true to say that conversions only take place amongst the poor.
Professor Kalam’s research into conversion in Tamil Nadu in the 1980s presents a
different picture. Way back in the Bengal of the 1840s, there were individual
conversions in upper caste households like that of Krishna Mohan Banerjee and
Madhusudan Datta. Richard M. Eaton’s article on ‘Conversion to Christianity
among the Nagas, 1876-1971’ (The Indian Economic and Social History
Review, January-March 1984) suggests that many Naga conversions took place
after 1947 when missionary activity was falling.
The sangh parivar assumes that all conversions out of Hinduism
were coercive, achieved by dubious methods or due to perverse influences and
poverty. To this is added the demographic fear that the Muslim population is
growing faster than the Hindu population and will subsume the latter even though
there are over 800 million Hindus as contrasted with 140 million Muslims. In
fact, those whose forefathers had changed their faith generations ago are now
considered to be true believers, just like any other. Hindutva’s policy on
conversion and reconversion has a keen fighting edge. It is uncompromisingly
tenacious. It is to be understood along with the physical targeting of Muslims
and Christians through various embarrassingly wanton acts of cruelty and
violence. As far as the legislation on conversion is concerned, it seems
facially neutral. But legislation is what legislation does and is instrumented
to do. The present spurt of anti-conversion legislation has been designed to be
susceptible to misuse, harassment and intimidation.
**
The latest controversy over conversions has arisen because in
late June 2009 the centre refused to approve the 2006 amendments to the old
Madhya Pradesh Dharma Swatantrya Adhiniyam (Freedom of Religion Act) 1968. The
2006 amendments, which brought about a sea change in the old law, were passed by
the Madhya Pradesh state legislature on July 25, 2006 under chaotic conditions
as six other bills were also passed that day. No discussion was permitted and
amid slogan shouting over another issue, the amendment bill was passed by voice
vote. The leader of the opposition in the state assembly, Jamuna Devi,
maintained that the purpose of these amendments was to whip up communal hatred
for political ends: "The RSS, VHP, Bajrang Dal were bent on making conversion an
issue to keep the communal cauldron boiling." In response to her request that
the bill be returned to the assembly for further discussion, it was reserved for
the consideration of the president. The presidential decision took three years
when it should in fact have come earlier – in accordance with the Sarkaria
Commission’s recommendations on these matters in 1988.
Earlier that year, on April 7, 2006, the Rajasthan assembly had
passed the Rajasthan Dharma Swatantrya Adhiniyam 2006, which was very similar to
the Madhya Pradesh bill. This caused an uproar. An attempt to have the bill
referred to a select committee for detailed deliberation failed. The bill was
passed by voice vote on the last day of the budget session, with the Congress
and the CPI(M) boycotting procedures. Pratibha Patil, the then governor of
Rajasthan, considered the bill carefully. (I say this because I myself gave an
opinion both on the bill as well as the president’s powers to reserve it.) She
had specific queries about the contents of the bill and it was only after these
issues were addressed that she referred the bill to the president. Chief
Minister Vasundhara Raje then played another constitutional card to have the
bill returned to the assembly so that the sangh parivar-dominated assembly could
pass the bill again and thus out-trump Governor Patil. Unhappily for them, the
governor saw through all this and, in any event, could not recall her decision
to refer the bill to the president.
In September 2006 the Gujarat Freedom of Religion (Amendment)
Bill was passed. This bill did not attempt to enhance the provisions contained
in the surveillance model that had already been passed (Gujarat Freedom of
Religion Act) in 2003. It was a bill suggesting that the surveillance model
would not apply to conversion from one denomination to another or to conversions
between Hindus, Buddhists and Jains because they were considered part of the
same faith! The bill, intended to consolidate one big happy family of Hindus
that included all Hindu sects, Buddhists and Jains, was also passed by a voice
vote. This happened despite protestations from the leader of the opposition that
in 2004 the Supreme Court had recognised the distinctness of the Jain faith.
Discussion on the bill took place under shotgun conditions.
An opinion poll conducted around the same time suggested that
people believed the new bill was divisive while experts held that it was
unconstitutional. Chief Minister Narendra Modi claimed that BR Ambedkar inspired
him – overlooking the fact that Ambedkar had left the Hindu faith for the
Buddhist. Meanwhile, a Delhi report indicated that on the anniversary of
Ambedkar’s Dhamma Diksha (conversion to Buddhism) 30 lakh Dalits in the country
converted to Buddhism. On July 31, 2007 the then governor of Gujarat, Nawal
Kishore Sharma, returned the bill to the legislature on the grounds that it was
unconstitutional. Whereupon Modi perhaps decided that it might be better to slam
the minorities by misusing the unamended 2003 law with all the fury of a bigot.
To get the complete picture, we must also consider the antics of
Ms Jayalalitha whose government introduced a harsh anti-conversion law, the
Tamil Nadu Prohibition of Forcible Conversion of Religion Act, in 2002, causing
a furore. In this case, the governor in fact gave his assent to the bill even as
the furore continued. Realising the electoral implications of her actions
however, Ms Jayalalitha repealed the act in 2004.
What do we make of the gubernatorial intervention in respect of
the Gujarat, Rajasthan and Madhya Pradesh attempts to amend their existing laws?
One thing is certain: True democracy had failed in all these cases. Majoritarian
Hindutva-dominated state assemblies had ramrodded the discussion through their
respective legislatures. But, under Articles 200 and 201 of the Constitution,
such a failure is not sufficient reason for the governor to withhold assent to
the bill. Indeed if this was the test, very little legislation, either by the
union or the states, would ever be enacted.
Bearing this in mind, how does one determine the criteria
according to which the governor may withhold assent and reserve a bill for the
consideration of the president? A narrow interpretation of the governor’s powers
suggests that s/he is only concerned about maintaining a federal approach, to
reserve bills that encroach on the jurisdiction of the union legislature. The
wider approach sees the governor as a custodian of the Constitution who must
consider whether a bill is constitutional and whether reserving it for the
consideration of the president is in the public interest. This is indeed a vexed
question. The Sarkaria Commission report of 1988, approving the Administrative
Reforms Commission (ARC), took the view that this power was to be exercised in
special circumstances, concluding (in para 5.6.13):
"(i) Normally, in the discharge of the functions under Article
200, the governor must abide by the advice of his council of ministers. However,
in rare and exceptional cases, he may act in the exercise of his discretion,
where he is of the opinion that the provisions of the bill are patently
unconstitutional, such as, where the subject matter of the bill is ex facie
beyond the legislative competence of the state legislature; or where its
provisions manifestly derogate from the scheme and framework of the Constitution
so as to endanger the sovereignty, unity and integrity of the nation; or clearly
violate fundamental rights or transgress other constitutional limitations and
provisions.
"(ii) In dealing with a state bill presented to him under
Article 200, the governor should not act contrary to the advice of his council
of ministers merely because, personally, he does not like the policy embodied in
the bill."
The leeway given to the governor cannot be reviewed by a court.
This was made clear in the Hoechst Pharmaceuticals case (1983, 4 SCC 45,
para 86):
"In such a case, it is for the governor to exercise his
discretion and to decide whether he should assent to the bill or should reserve
it for the consideration of the president to avoid any future complication. Even
if it ultimately turns out that there was no necessity for the governor to have
reserved a bill for the consideration of the president, still he having done so
and obtained the assent of the president, the act so passed cannot be held to be
unconstitutional on the ground of want of proper assent. The aspect of the
matter, as the law now stands, is not open to scrutiny by the courts."
This effectively states that we must trust the governor and the
union government!
The anti-conversion bills of 2006 approved by various state
governors and the role of the governor itself raise serious issues of
communalism, federalism and democracy. Some tentative conclusions are as
follows: (i) Democracy can sometimes be at loggerheads with the Constitution
which abhors divisive communalism. (ii) Majoritarian Hinduism in various states
has tried to flex its muscles to browbeat minorities, often using
anti-conversion legislation to do so. (iii) Normally, the validity of
legislation is tested by the Supreme Court and high courts. (iv) But our
Constitution-makers in their wisdom also made the governors and the president
custodians of the public interest. (v) This is a power that can be abused
although that has not happened. (Governors such as Pratibha Patil have carefully
considered the anti-conversion bills.) (vi) Had these bills been approved by the
governors, havoc would have been wreaked on minorities and the freedom of
conscience. (vii) The mechanism by which bills are reserved for the
consideration of the president is part of the constitutional system of checks
and balances intended to protect its integrity. (viii) Even majoritarian
democracies must be careful not to undermine or subvert democratic values.
***
The new bill is the latest in a series of anti-conversion
legislation that already exists in Orissa, Madhya Pradesh, Chhattisgarh,
Arunachal Pradesh and Gujarat. These are all copycat laws. There have also been
several attempts to introduce central legislation regulating conversion.
However, the Parliament of India correctly refused to pass the Indian Conversion
(Regulation and Registration) Bill 1954 and the Backward Communities (Religious
Protection) Bill 1960. As the balance of power shifted in 1966, the efforts to
introduce anti-conversion legislation shifted to the states with Orissa being
the first state to legislate on conversion through the Freedom of Religion Act
1967. After that, Madhya Pradesh enacted the Dharma Swatantrya Adhiniyam in
1968. Both these laws were challenged in the respective high courts. The Orissa
act was struck down in the Yulitha Hyde case (1973) while the Madhya
Pradesh act was upheld in the Rev Stanislaus case (1975). Issues
pertaining to the validity of both these acts were addressed by the Supreme
Court in the Stanislaus case (1977) where the court upheld the validity
of both laws. In spite of the Supreme Court’s approval of anti-conversion
legislation in what is generally regarded as an unsatisfactory decision, no
similar legislation was immediately introduced other than the Arunachal Pradesh
Freedom of Religion Act 1978.
Since the late 1990s, the debate on the regulation of
conversions has again emerged as a mainstream issue, especially because of the
propaganda by right-wing parties. New anti-conversion laws have been introduced
and existing laws have been strengthened in the states of Tamil Nadu (2002),
Gujarat (2003) and Chhattisgarh (2006). These various pieces of legislation
share a certain commonality in that they were all introduced by right-wing
governments and are focused on preventing conversions from Hinduism to other
religions. Also, while all the legislation adheres to the general framework of
the first law i.e. the Orissa Freedom of Religion Act 1967, the later
legislation has become progressively harsher and more restrictive.
The Orissa law criminalises conversion i.e. the renouncing of
one’s faith and the adoption of another faith through force, misrepresentation
or inducement. Its provisions are wide-ranging and include direct or indirect
attempts to convert and the abetment of conversion as a criminal offence. The
penalty is without prejudice to any civil liability that may apply and includes
imprisonment for a period of up to one year and/or a fine of up to 5,000 rupees.
However, if the conversion was of a minor or a woman or a person belonging to
the scheduled castes or scheduled tribes, the penalty is doubled. There is some
control over the proceedings under the law, as the prosecution of any offence
under the act requires prior sanction from the district magistrate. Thus what
was created was not a civil remedy to have a conversion set aside at the
instance of the convert but a statute to potentially criminalise all conversions
and to subject them to surveillance through police and magisterial intervention.
This framework has been adopted by all later anti-conversion
legislation but each state has made adjustments to address its specific needs.
In the Madhya Pradesh Freedom of Religion (Amendment) Bill 2006, all conversions
irrespective of the circumstances had to be reported to the district magistrate
and failure to do so would result in the same penalty as the actual commission
of the offence. Thus the focus shifted from checking unlawful conversions to
policing all conversions. While the three earlier acts were largely alike
in intent and effect, the recent pieces of legislation have through incremental
changes begun to change the nature of the offence.
The Gujarat act of 2003 increased the penalty to imprisonment
for up to three years and a fine of up to 50,000 rupees, with an enhanced
penalty of up to four years’ imprisonment and a fine of up to one lakh rupees
for conversion of persons belonging to a scheduled caste or scheduled tribe or
of minors or women. More importantly, conversions could now only take place with
the prior permission of the district magistrate. Conversion was transformed from
being the right of an individual into a privilege that could be exercised only
by the authorities. While the new law gave the authorities greater control over
conversions themselves, the district administration’s supervision and control
over prosecutions by the police under the law was removed. A few years later
Narendra Modi’s government passed the 2006 amendment bill referred to earlier,
proposing to treat Hinduism as a monolithic religion by including all sects of
Hinduism and Buddhism and Jainism in its fold and thus effectively targeting
Muslims and Christians. But, succumbing to intense public pressure, the state
government ultimately withdrew the bill in March 2008.
The Rajasthan Freedom of Religion Bill 2006, in keeping with
other anti-conversion legislation of recent vintage, continued the trend of
increasing punishment for the offence involved. It provides the maximum penalty
so far, which includes imprisonment of between two and five years and a fine of
up to 50,000 rupees. Moreover, the bill specifies that the penalty under this
bill is without prejudice to any other civil and criminal liability thus
opening up the possibility of multiple prosecutions. However, in addition to
these changes, the bill also contains certain inclusions and omissions that make
it substantially different from previous legislation. The most striking change,
which clearly demonstrates the partisan nature of the bill, is in its definition
of conversion. As in previous legislation, conversion is understood to mean
leaving one’s religion but one’s religion is now not merely the individual’s
personal faith but the faith of one’s forefathers. In the context of the
aggressive campaign of mass reconversion programmes like ‘Ghar Vapasi’
(homecoming or return to the flock) which has been adopted by right-wing
parties, this is clearly an addition with the specific purpose of creating
loopholes by which the proposed law will not apply to such reconversion
programmes.
This bill also differs from the others in the manner in which
the offence of conversion is criminalised. For the first time the offence has
been made non-bailable and cognisable, which is a deviation from all the
previous legislation. The requirement of prior sanction from the civil
administration for prosecution of the offence, which was present in all
previous legislation other than the Gujarat law, has been removed. These
changes, which are a marked deviation from the earlier legislation, demonstrate
that while the Rajasthan bill of 2006 is part of a series of similar
legislation, it belongs to a new genus which treats conversion in a far more
harsh and restrictive manner. Later, the new Rajasthan Freedom of Religion Bill
2008 replicated much of the old bill but added provisions that attempted to
decriminalise reconversion to Hinduism and sought to remove such reconversion
from the purview of the proposed law.
The Madhya Pradesh amendment bill also maintains the provisions
for stringent oversight and surveillance that characterise recent
anti-conversion legislation. Fortunately however, the respective state governors
blocked the passage of these bills of 2006, returning the Gujarat bill to the
state assembly and reserving the Rajasthan and Madhya Pradesh bills for the
consideration of the president. As mentioned earlier, the centre has recently
denied assent to the Madhya Pradesh bill. The Rajasthan bill is destined to
suffer the same fate.
****
The debate on conversions has to be understood in the context of
the constitutional provisions as interpreted in the Supreme Court’s 1977
decision in the Stanislaus case. But before we enter into any discussion
on the court’s interpretation of the freedom of religion clause in our
Constitution, it may be useful to consider some of the discussions in the
Constituent Assembly which framed India’s Constitution. The original drafts of
the Indian Constitution prepared by KM Munshi and BR Ambedkar, considered in
1947, protected freedom of conscience and the right to profess and practise
religion. It was the Munshi draft that was considered by the Fundamental Rights
Subcommittee for its draft report of April 3, 1947 along with other provisions
which stipulate that these freedoms are subject to public order, morality and
health.
From our point of view, the draft observed that while the right
to "profess and practise" was protected, nothing was said about the right to
propagate one’s faith. Some members of the Constituent Assembly, such as AK
Ayyar and BN Rau, were especially concerned that freedom of religion may impede
social reform. Others, like Raj Kumari Amrit Kaur, Hansa Mehta and KT Shah, were
more explicit and forceful in their objections. There followed on April 22, 1947
a discussion regarding the inclusion of the right to propagate religion, with
the major concern being the effects on social reform. The issue was then put to
vote, after which the right to propagate religion was included in the draft
along with some markers to indicate that this right had already been included in
the provisions guaranteeing freedom of speech. When the freedom of religion
clauses were debated on May 1, 1947, questions about religious instruction in
school dominated the proceedings. These were resolved by reference to a special
committee which sought to present religious education in state schools.
The Draft Constitution of February 1948 clearly protected the
"right freely to profess, practise and propagate religion" (emphasis
added). When the Draft Constitution was circulated along with other proposals,
there was a not too spirited attempt from some quarters to remove the right to
propagate religion from the draft but this did not find acceptance with most
members. During further discussions on December 3-7, 1948 the inclusion of the
right to propagate religion in the freedom of religion clause was hotly debated.
Maintaining that religion was a private affair, a Muslim member of the
Constituent Assembly, Tajamul Hussain, stated that the right to propagate one’s
faith ought not to be included in the clause. This opinion was endorsed, albeit
for different reasons, by Lokanath Misra, who saw in the right to propagate
religion all the evils that led to partition. Eventually, the Constituent
Assembly retained the right to propagate one’s faith in the freedom of religion
clause after taking into account that the right was not absolute but subject to
limitations. The state would regulate conversions due to undue influence, money
or pressure, and it was already a part of the right to freedom of speech.
Curiously, KM Munshi seemed to take the rather simplistic view that in a secular
state there is no premium on a religion increasing its numbers:
"In the present set-up that we are now creating under this
Constitution, there is a secular state. There is no particular advantage to a
member of one community over another nor is there any political advantage by
increasing one’s fold. In those circumstances the word ‘propagate’ cannot
possibly have dangerous implications which some of the members think that it
has."
He could not have been more wrong. Propagation and conversion
were critical issues, not necessarily as part of a numbers game but certainly in
the corridors of Hindutva whose proponents believed that such propagation was an
insult and injury to the Hindu faith.
In post-independence India, we have already seen several
attempts to enact central anti-conversion laws like the Indian Conversion
(Regulation and Registration) Bill 1954 and the Backward Communities (Religious
Protection) Bill 1960. Anti-conversion legislation was enacted in various
states, including Orissa (Freedom of Religion Act) in 1967 and Madhya Pradesh
(Dharma Swatantrya Adhiniyam) in 1968. While the Orissa law was struck down (in
Yulitha Hyde & Ors vs State of Orissa & Ors, AIR 1973 Orissa 116),
the Madhya Pradesh law was upheld (in Rev Stanislaus vs State of Madhya
Pradesh, AIR 1977 MP 163). Both these cases went up on appeal to the Supreme
Court in Rev Stanislaus vs State of Madhya Pradesh & Ors
(1977, 1 SCC 677).
The Supreme Court’s judgement in the Stanislaus case was
delivered by a five-judge bench with Chief Justice AN Ray writing the judgement
which was read on January 17, 1977, during the emergency. The court concentrated
on only two issues: (a) legislative competence; and (b) the meaning of the word
"propagate" in the freedom of religion clause. For our purposes we can ignore
the issue of legislative competence on which the judgement states that the acts,
by prohibiting and penalising forcible conversions, clearly provide for the
maintenance of public order (even though the connection with public order is a
questionable inference). On the question of "propagation", the court’s
observation needs to be quoted in its entirety. The court observed:
"The expression ‘propagate’ has a number of meanings, including
"to multiply specimens of (a plant, animal, disease, etc) by any process of
natural reproduction from the parent stock", but that cannot, for obvious
reasons, be the meaning for the purposes of Article 25(1) of the Constitution.
The article guarantees a right to freedom of religion and the expression
‘propagate’ cannot therefore be said to have been used in a biological sense.
"The expression ‘propagate’ has been defined in the Shorter
Oxford Dictionary to mean "to spread from person to person, or from place to
place, to disseminate, diffuse (a statement, belief, practice, etc)". According
to the Century Dictionary (which is an encyclopaedic lexicon of the English
language), Vol. VI, ‘propagate’ means as follows: "To transmit or spread from
person to person or from place to place; carry forward or onward; diffuse;
extend; as propagate a report; to propagate the Christian religion".
"We have no doubt that it is in this sense that the word
‘propagate’ has been used in Article 25(1), for what the article grants is not
the right to convert another person to one’s own religion but to transmit or
spread one’s religion by an exposition of its tenets. 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… It has to be appreciated
that the freedom of religion enshrined in the article is not guaranteed in
respect of one religion only but covers all religions alike and it can be
properly enjoyed by a person if he exercises his right in a manner commensurate
with the like freedom of persons following the other religions. What is freedom
for one is freedom for the other in equal measure and there can therefore be no
such thing as a fundamental right to convert any person to one’s own religion."
This is what the court had to say. And though the premise may be
flawed, since it is a Constitution bench judgement, we have no choice but to
live with it. But the fact remains that the court failed to examine the
provisions of the statute and test it against Article 21 (protection of life and
personal liberty) and the new jurisprudence of due process. It must be said that
the decision in Stanislaus is imperfect and incomplete. Apart from saying
that propagation does not include conversion, the Supreme Court has not examined
any legislation or rules for due process and arbitrariness, which is now
essential to constitutional practice. (Equally, propagation is also a part of
free speech, as repeatedly affirmed by the Constituent Assembly, and subject to
reasonable restrictions.) This has never happened at the instance of any court,
including the Supreme Court. That is why it is necessary to examine the
legislation itself.
The first-generation legislation, comprising the Orissa Freedom
of Religion Act 1967, was relatively simple. It simply prohibited conversion by
‘force’, ‘fraud’ and ‘inducement’, making it an offence punishable by
imprisonment for up to one year and/or a fine of up to 5,000 rupees; and in the
case of conversion of minors under the age of 18, women and members of the
scheduled castes and scheduled tribes, by a maximum penalty of two years’
imprisonment and a fine of 10,000 rupees. The offences were cognisable, inviting
arrest, and were to be prosecuted with the sanction of the district magistrate.
The due process implications of this statute, though considerable, were not
examined by the court.
The second-generation legislation, the Madhya Pradesh Dharma
Swatantrya Adhiniyam 1968, added the term "allurement" (including gifts) to the
list of conversion methods that were proscribed and a provision requiring that
the district magistrate be given prior intimation of any such conversion –
failure to provide such information being an offence punishable by imprisonment
for up to one year and/or a fine of up to 1,000 rupees. This law marked the
beginning of the surveillance system that would be strengthened in subsequent
legislation like the Arunachal Freedom of Religion Act 1978, the Tamil Nadu
Prohibition of Forcible Conversion of Religion Act 2002, the Gujarat Freedom of
Religion Act 2003 and the Himachal Pradesh Freedom of Religion Act 2006.
As time went on, the milder model gave way to a fuller
surveillance-oversight model of legislation. The Himachal Pradesh act of 2006
was different from the Orissa, Madhya Pradesh, Arunachal Pradesh and Tamil Nadu
statutes in that it permitted the district magistrate to inquire into reported
instances of conversion himself or through any agency he may deem fit. In the
rules of July 7, 2007 under the Himachal act, the district magistrate was given
the power to issue notice and institute inquiries if, on "the basis of any
complaint or any information laid before him", s/he is of the opinion (for
reasons to be recorded) that a conversion has taken place without notice or that
"force or inducement have been used or is likely to be used in any conversion".
Thus any interloper (of the sangh parivar) could create grounds for an inquiry
and a police case to induce harassment! It is this surveillance approach that
has become de facto practice elsewhere while the emphasis returned to police
investigations. Since the offences were cognisable and abetment was an offence,
the police courts run riot, investigating whatever they want. This has
effectively created a conversion police.
Fourthly, the Gujarat bill of 2006 and the Rajasthan bill of
2008 espouse and flaunt the concept of an imperial Hinduism by enunciating a
protective approach to reconversions to Hinduism based on the premise that all
Indians were Hindus, including sects that broke away from the Hindu fold as well
as Buddhists and Jains.
I believe that the effect of such legislation and the procedures
it inaugurates have never been tested in a court of law. In the process lies the
punishment.
*****
There is a wealth of available literature which recommends that
legislation must be examined in terms of its purpose, intent and effect, not
merely for judicial interpretation but also to consider whom the legislation
empowers and for what purpose. Equally, the use to which legislation may be put
varies.
Clearly, the most devastating event in India’s recent history
was the destruction of the Babri Masjid on December 6, 1992. This sent out a
signal that as far as persecution of minorities was concerned, there were no
holds barred. A random look at the events in and around 2002, when the Tamil
Nadu and Gujarat laws surfaced, shows that stopping conversions and effecting
reconversion was the dominant policy of the moment.
In Orissa, 72 tribal Christians were brought back to the fold (Hindustan
Times, June 11, 2000). In Bengal, the Jamaat-e-Ulema sought the government’s
help against forced reconversions (The Indian Express, July 8, 2000). Two
weeks later converts in Korma village in Orissa were threatened with
persecution. A couple in Delhi were hounded when a Dalit married a Jat (Hindustan
Times, September 25, 2001). The All India Confederation of Scheduled
Caste/Scheduled Tribe Organisations declared that 10 lakh persons would convert
to Buddhism by 2001 (Hindustan Times, October 7, 2001) and thousands did
(The Hindu, November 7, 2001). The Dalits complained that the government
tried to stop conversions (Hindustan Times, November 6, 2001). In Meerut,
in December 2001, 300 Dalit villagers converted to Buddhism (Hindustan Times,
December 28, 2001).
Accusations ran wild. The chief superintendent of Pondicherry
Central Prison was fairly accused of forced conversions (The Week, April
2001). Why shouldn’t Dalits convert when a Dalit could be rebuked for entering a
temple near Shimla? (The Hindu, May 20, 2002). No action was taken to
stop the persecution of Dalits. That is why there were protests against
Jayalalitha’s conversion statute in Tamil Nadu (The Hindu, October 20,
2002; The Statesman, October 9, 2002). In New Delhi, the Shiv Sena
tried to convert Muslim children to Hinduism (Hindustan Times, June 20,
2002). But when 40 Hindus happily converted to Islam, the VHP claimed the
conversion was forced (Hindustan Times, August 24, 2002). The VHP wanted
to carry out reconversions in Wayanad in Kerala (Hindustan Times,
September 23, 2002). Following the Tamil Nadu Prohibition of Forcible Conversion
of Religion Ordinance of 2002 (later replaced by the act), Thomas Stephen
reported that religious fanatics were emboldened to attack a prayer service in
Keenathur, Thiruvannamalai (Report, September 24-29, 2002). The VHP and RSS
wanted similar anti-conversion laws everywhere (The Hindu, October 8,
2002).
Meanwhile, the oppression of Dalits continued. In Jhajjar,
Haryana, five Dalits were killed by a Hindu mob for skinning a dead cow (Hindustan
Times, October 19, 2002). In protest, a dozen Dalits embraced Buddhism (The
Hindu, October 22, 2002). This triggered off the ‘Jhajjar effect’ by which
hundreds of Dalits converted to Buddhism on Diwali day (The Indian Express,
November 6, 2002; Outlook, November 11, 2002). Curiously, even Sri Lanka
imposed a ban on conversions (Hindustan Times, November 19, 2002). It was
due to threats that a mass conversion by Dalits in Chennai was stopped (Hindustan
Times, December 7, 2002). In protest, the Dalit Panthers changed Hindu names
to Tamil (The Indian Express, October 7, 2002). On Christmas day 123
Dalits converted to Christianity (The Hindu, December 26, 2002).
That the oppression of Christians continued was clear from an
attack on a Catholic church in Nadia, near the Indo-Bangla border in West Bengal
(The Statesman, December 29, 2002). The BJP held a conversion camp
for Christians in Khallari, near Raipur (The Indian Express, December 30,
2002; The Hindu, December 30, 2002). Dalits in India were converting out
of Hinduism (Outlook, November 18, 2002). It is in this context that the
Gujarat Freedom of Religion Act 2003 surfaced. The All India Christian Council
protested against a survey of Christians in Gujarat (The Hindu, March 12,
2003). The beleaguered Christians were warned against illegal reconversions in
the state (The Hindu, June 2, 2003). In response to the new law, one lakh
Dalits in Gujarat proposed to convert to Buddhism (The Indian Express,
June 4, 2003).
Mass conversions were triggered off by attacks on Dalits (The
Times of India, September 10, 2003). Meanwhile, the BJP planned a conversion
law for Delhi (The Hindu, November 22, 2003). Dalits were banned from
entering the Nathdwara temple (The Times of India, January 14, 2004). The
Jamaat questioned the VHP’s claim that about 586 Muslim families in Rajasthan
were being converted (The Hindu, February 19, 2004). Ahead of the Kumbh
Mela, an anti-conversion stir began to highlight cases of allurement (The
Indian Express, February 3, 2004) Senseless attacks on Christians and
Dalits took place during these troubled years – and continue to do so.
I have deliberately related a handful of events to demonstrate
the validity of the Jhajjar effect; to show that Dalits and others leave the
Hindu fold because they find it persecutory and wanting. The legislation of
2002-03 was passed by Hindutva politicians as desperate measures in retreat.
Unable to manage its own affairs, Hindutva launched attacks on others. Most
conversions are not conversions of convenience, such as conversions to Islam as
a device to facilitate marriage which were outlawed by a Deoband fatwa (Mail
Today, July 4, 2008). The other faiths do not want forced conversions. They
gain nothing from this. The pressure on Dalits to convert arises because
Hinduism – no less in belief and practice – has no place for them despite the
pressure brought to bear upon them to reconvert as seen in the case of 1,000
Christians in Tamil Nadu (The Times of India, April 13, 2008). The VHP
also focuses on tribal reconversions (The Times of India, April 1, 2008).
But much of the North-east is Christian. That is one reason why the new
Rajasthan bill of 2008 makes room for reconversion without criminalisation or
surveillance even as it reaffirms its policy against conversion of every other
kind.
******
The truth is that most conversions take place for a variety of
genuine reasons that often include persecution. Anti-conversion legislation is
not passed so that conversions can be fair but to persecute those who wish to
convert through policing and surveillance. Criminalising conversion is not the
answer. Unhappy believers must be allowed to convert to another faith and can
always declare their reasons for doing so. These are not matters for the police
and the district magistrate.
In my view: (a) Anti-conversion policies are designed to promote
and provoke hatred. (b) Anti-conversion legislation provides the police and
magistracy with ammunition to harass minorities and Dalits. (c) The Supreme
Court has never examined the actual effects of such legislation comprehensively.
(d) Criminalising conversion is fundamentally wrong. (e) In the process lies the
punishment. (f) This legislation is linked to political Hindutva and is always
subject to abuse. (g) These laws must be abolished.
(Rajeev Dhavan is a senior advocate, Supreme Court of India.) |
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