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The Freedom of Religion and Tamil Nadu ordinance
By Syed Shahabuddin

Article 25(1) of the Constitution grants all persons freedom of conscience and the right freely to profess, practise and propagate religion, subject to public order, morality and health.

This Article was incorporated in the Draft Constitution after detailed discussion in the Fundamental Rights Committee of the Constituent Assembly at three levels and adopted in its final form in 1949 after intensive debates. The main point at issue was the right to propagate. All the arguments that are being advanced today for or against 'conversion' are to be found in its proceedings. That is why no one took seriously Prime Minister Atal Bihari Vajpayee's proposal during his visit to the Dangs in 2000 to have yet another national debate on the question. No further elucidation is needed. What is required is the acceptance of the idea that a human being has the inherent human right not to die in the religion he was born in but to change his religion as and when he so decides. What is also needed is the political will to protect this fundamental and human right against any social pressure or any political interference or administrative harassment.

Freedom of religion and freedom of conscience are obviously inter-related. Profession and practice of religion is but an external manifestation of the call of conscience. No external authority, political, religious or social, can peep into conscience or presume to regulate it or monitor it or stand guard over it. No external authority has the right to go into the question whether an individual is true to his conscience. It is the individual's declaration which is final and the last word.

It is significant that Article 25 use the word 'freely' to qualify rights of profession, practise and propagation of religion. This implies the individual's unhindered freedom unfettered by any ecclesiastical or political authority. Thus it bars majoritarian dictates by the RSS to the Christians to Indianise the church and to the Muslims to 'revise' their scriptures and also any denomination to impose its norms on another.

Under a secular order, a political and administrative regime, which is not aligned with or partial towards any religion, is not concerned with the religion of an individual citizen or a group thereof. It is concerned with their material needs - means of livelihood, food, clothing and shelter, education, health and environment and with inter-group harmony and peaceful coexistence. Why should then the government of a secular state anxiously count whether the number of followers of any religion is rising or falling.

In the age of privatisation, it looks absurd that a government should inquire into which religion a citizen professes at a given point in time and whether he sticks to the religion of his birth or changes it according to the dictates of his conscience. He may change it every day or every week or every month or at the end of every year! 

Unfortunately, notwithstanding the formal promulgation of the secular order, some people continue to look upon the Indian state as a Hindu state. Granted that the Hindus, under the existing system of enumeration form an overwhelming majority of the people (82%), granted that the Hindu culture forms the core of the Indian culture, granted that politically, economically and socially, the State, the polity, the society and the economy are dominated by the people who profess Hinduism, granted that, in one word, India is a 'Hindu country', the Indian State is not a Hindu State. 

Since Hinduism is an Indo-centric religion, much more than Islam is Arabia-centric and Christianity is Palestine-centric, many people, in good faith confuse India with Hinduism and find it difficult, say, impossible, to draw a dividing line between the two unlikes, as one represents a territory and the other a spiritual idea, and the two unlikes cannot be compared with each other. But this conceptual blindness explains why conversion of a Hindu to Islam or Christianity (not so much to another religion of Indian origin like Jainism, Buddhism or Sikhism) is considered a subversive, anti-national, unpatriotic, anti-social act. Contrarily, the reverse conversion of a Muslim or a Christian to Hinduism is described as 'Home-Coming' (Ghar Wapsi)!

But the Constitution and the Law cannot be interpreted or applied under the cloud of emotions or sentiments. Nor can such accusations or appeals deter a person who, for reasons of his own, sees his benefit, present or future, in this world and the hereafter, for himself or for his future generations, in moving out of a religious enclosure where he feels suffocated, crossing the Lakshman Rekha and breathing the air of freedom.

Those who look upon the Indian State as the Hindu State are naturally inclined to pressurize the state and the government into taking institutional, legal, educational, social and economic measures in pursuance of the double objective - to block the exit and facilitate the entry into the Hindu fold. The Government of the day or the party in power may not always oblige them. This will depend on its own ideological inclination or political compulsions and its ability to rationalize and justify whatever it does.

The misuse of the Indian State for advancing the Hindu cause began with independence. The Indian Parliament took upon itself to reform Hindu society and acting like a Hindu Synod, adopted the Hindu Code. It integrated the Scheduled Castes, which were identified as a 'minority' even in the first Draft of the Constituent Assembly, with the Hindu community.

Then Government enumerated them as Hindu in the Census and under the Constitution (SC) Order, 1950, limited reservation in public employment and legislatures to those of them only who profess to be Hindus. Their route of exit from Hinduism was thus blocked on pain of denial of substantive privileges and benefits. What could be more coercive or alluring? Call yourselves Hindu, you have them, change to any other religion, you lose them all!

But the SC's as well as ST's continued to be oppressed and subjected to atrocities and treated as untouchables in flagrant denial of their human dignity. As a result they continued to seek liberation in Christianity and occasionally in Islam. So it was alleged that they were being lured or coerced into change of religion by missionaries and maulvis. So came the Orissa Act of 1967 and the M.P. Act of 1968 to uphold 'freedom of religion' but in fact to deny it! The Supreme Court's judgement in the Stanislaus Case (1977) put the judicial seal over this judicial curb on freedom by laying down that 'the right to propagate is not the right to convert'.

The Constitution does not use the term 'conversion'. Indeed it would have been unwise to do so. Because freedom of religion is the right of an individual and gives him the freedom to change his religion without the help of any external agency. In this sense, the Hindi term 'Dharam Parivartan' is more accurate than the term 'conversion'.

However, a missionary or a maulvi or a Pandit has also the right to propagate his religion, to spread the word and to communicate it to other human beings. It is possible that a person or his audience may change his faith, despite the social and cultural and sometimes even the famitial break that it may entail. Change of faith by a person is a logical, reasonable effect of propagation of faith by another a natural consequence. The Stanislaus Judgement is the law of the land today but its illogical connotation needs to be reviewed by a larger bench to bring it in line with the ground reality that there may be no 'right to convert' but there is a right to change one's religion. 

At one point, the exercise of the right to propagate by one person and the right to profess a religion of his choice by another person converge. The Supreme Court dictum is illogical and inadequate, because it implies as if both rights reside in the same person or that the person who changes his religion is a lifeless and passive object!

Now, if a missionary or a Maulvi or a Pandit procures a change of faith by another person by using coercion or inducement or deception, the object of the exercise, on realizing that he has been deceived or defrauded or coerced, is not only free to revert to his original religion and also to file a complaint under the law of the land and the authorities are free to act on it. But the records show very few complaints. The Wadhwa Commission, inquiring into the burning of the Australian priest Staines and his sons in Orissa was informed by the State Government that between 1994 and 2000, only 10 complaints had been filed. And who knows whether they were genuine or inspired or secured by 'fraud, allurement and coercion'!

No other person or organization nor the administration itself has any right to act as the guardian of the 'convertee', as if he was imbecile and file a complaint on his behalf. In any case such a complaint can be dealt with under the I.P.C. and does not need any additional legislation which would serve no purpose other than generating disaffection and avoidable disorder.

The proponents of such legislation to regulate change of faith justify it on the ground that freedom of religion is subject to 'public order'. Yes, it is but then the law should punish those who disturb the public order, not curtail the fundamental right of a person or a group. It is like the common phenomenon of someone throwing a stone on a licenced procession. 

The law should punish the stone thrower, not ban the procession? What is amazing is the superficial view taken by some academicians and analysts. The law does not take away the right of a person to change his religion, does not bar conversion per se but only conversion induced by coercion, allurement or fraud. Either they are not aware of the ground realities of the application of laws in our country or they wish to ignore the real purpose of the law. The law, as the experience of M.P. and Orissa tells us, need not be applied. 

The very existence of law on the statute books serves the purpose. Only a brave soul shall ever think of pitting himself against the combined forces of the society, mobilized in the name of Hindu Dharma. In effect, the law will nullify personal freedom and is designed to kill any urge to change religion, if it arises.

The Tamil Nadu Ordinance showed that the AIADMK leadership has not learnt from the fact that the earlier laws in Orissa and M.P. have served no 'positive' purpose of identifying cases of conversion by coercion, allurement or fraud. So why should it repeat the experiment? Why should the entire Sangh Parivar acclaim it? Why should the RSS demand a Central law? And why should the BJP President propose that every state should enact a similar law? Why should BJP make it a part of its Gujarat manifesto?

The answer is two fold. The first is related to the substance of the law. Jayalalitha's Ordinance is much more severe in substance and in procedure.

Under the rules in MP and Orissa, the district magistrate has to be informed of the intention of change of religion, 12 days in advance. As the TV personality Karan Thapar commented, this was like saying that a citizen has freedom of expression but if he is to criticise the government, he has to give 12 days advance notice! The magistrate on receipt of the report or information from any other source shall inquire into the circumstances and at his discretion, he may initiate prosecution not only against the person who has changed his religion, but also the person who has officiated at the ceremony and all those who have abetted in the change, even participated in the ceremony. They are all liable. The investigation and the prosecution shall turn into a veritable Inquisition. The process itself will become a punishment, in the words of Rajeev Dhavan, the eminent jurist.

Also the offence is defined in the widest possible manner. For example, allurement may include educational facilities, medical aid or humanitarian assistance. Coercion includes 'threat of divine displeasure'. Fraud is expanded by the prefix 'any'. And, the penalty is 3-year imprisonment and a fine of upto Rs.50,000/-, which may increase to 4 years and 100,000, in the case not only of minors (which is understandable) but of women, dalits and tribals. This provision is by itself derogatory to human dignity and discriminatory in law.

The second reason is related to the real purpose of the Ordinance which was promulgated hastily and suddenly when the Assembly was to meet within 3 weeks. There was no urgency. But Jayalalitha has always projected herself as a Hindu leader and the Sangh Parivar was anxious to embrace her and instal her as the Devi for facilitating their expansion in the South, notwithstanding her past political antics. Thus there is a convergence of interest in promoting the ideology of Hindutva.

The Hindu society is not facing any threat from Islam or Christianity. Though the Muslim rate of growth is marginally higher than the Hindu rate, for reasons other than balance of 'conversion', the Christian population is in fact going down, from 2.7% in 1971 to 2.2% in 2001. But the Sangh Parivar fears and apprehends that the SC's who are waking up may en mass break the Hindu siege and cross the Lakshman Rekha into the fold of Christianity, Islam or Buddhism. Hence, the real object of the law is to create administrative hurdles so as to effectively bar them from changing religion and at the same time stop the non-Hindus from propagating their religions to them. The law also serves to frighten and incapacitate the Dalit and minorities' leadership at the grassroots level into silence.

But what is most important is the third reason: to raise the communal temperature, generate fear, hatred and intolerance among the Hindu masses towards the religious minorities and pave the way for the transformation of the secular state into a Hindu state.

Over the last 50 years, the Sangh Parivar has been engaged in creating a mindset which sees India as a Hindu country and identifies Indian history, culture and nationhood with Hinduism. Those with such a mindset naturally look upon change of faith by a Hindu to another religion as an act of treason which has to be prevented as a national duty. This mindset operates in a world of double standards. Change of religion by the Christian or Muslim to Hinduism, under social coercion, material inducement and false and dishonest propaganda is welcomed and acclaimed as Home Coming, 'Ghar Wapsi', and the local administration will either take no notice or will satisfy itself with formal inquiries and file it away as a genuine case of exercise of religious freedom, against all evidence. The SC's who revolt against social tyranny, physical atrocities and administrative harassment are already being held back by the threat of withdrawal of benefits of reservation in public employment and welfare and educational facilities.

But this mindset refuses to see these facilities as material inducement or the threat of withdrawal as coercion. The real purpose, therefore, is to freeze the SC's in the status of indignity and inequality and close the windows against the winds of change and the doors against their liberation into a world of equality and dignity.

The Ordinance has become law, with Jayalalitha commanding an overwhelming majority in the Assembly, insensitive to universal opposition. It will no doubt be challenged in the High Court and the Supreme Court. Whether the Supreme Court shall re-endorse its Stanislaus ruling, which is bad law, or review it in depth remains to be seen. But if the trend in its recent judgements is any indication, the highest judiciary is also showing indulgence towards the philosophy of Hindutva and the projection of Hinduism as a way of life, as an expression of Bharatiyata.

Religious minorities cannot effectively raise their voice in the legislature for lack of representation. Their cries of anguish and of protest are rarely heard by the Executive. The Judiciary has been their only hope. Will it also turn deaf to their pleas and allow the demolition of the secular order? But who can stop the winds of change? Who can kill the spirit of Freedom?

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