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.