Hindutva Conspiracy Clear in Rajasthan "Freedom of Religion Bill"
NOTE Dr John Dayal, Member, National Integration Council, Government of India
Milli Gazette Online
Law experts say bigoted legislation can be challenged in Supreme Court
Non-BJP Political parties to meet, decide on major campaign with Civil groups
was my privilege to be Chief Guest at a very special public meeting
called by over 20 Civil Society groups of Rajasthan in the State Capital
on 1st April to consider the People’s response to the so
called Rajasthan Freedom of Religion Bill which has been adopted by the
Cabinet of Chief minister Vasundhra Raje Scindia and is sure of passage
in the Legislative Assembly where the Bharatiya Janata Party, the
political arm of the fundamentalist Hindutva Parivar, has a stranglehold
Raymond Coelho of the Rajasthan Christian Forum presided, and social
activist and PUCL leader Kavita Shrivastava moderated the proceedings
which were marked by the presence of representatives of almost all
opposition political parties, as well as a colleague of eminent jurist
and Supreme Court Senior Advocate Rajeev Dhawan. Dhawan sent a written
critique making clear that the Bill can be challenged in the Supreme
Court of India. [I give later the full text of the Controversial Bill
and the comments of Advocate Rajeev Dhawan’s group]
has been decided to call an all-Party meeting to ensure a vigorous, if
doomed, challenge in the Assembly, appeals to the Governor and the
, as well as mass mobilisation and education of the people, and finally
a challenge in the Courts.
and a mixed team (Christian pastor, Supreme Court Advocate Catholic Nun,
Hindu journalist) had last month investigated the crisis in Kota where
the MA Thomas father and son of the Emmanuel Mission are being
methodically and systemically targeted by the police and district
authorities under pressure of the BJP leaders, including the state Home
minister. The State judiciary is allowing itself to be part of the game.
We had then seen the negative aspects of one of
’s largest states with a beautiful people whose past is full of
acceptance. Their kings had got their daughters married into the Mogul
dynasty. Their kings and prime ministers had invited Jesuits to open
schools and colleges, bequeathing them vast tracts of land. Their
leaders have sought the presence of nuns to take care of the destitute
and the orphans. And yet we saw the district collectorate (offices of
the administrative chief of the district) virtually look like temples
and police and officialdom share a religious bigotry with their
meeting in Jaipur introduced us to the political fighters of this land
of warriors --- Marxists with just one legislator in the Assembly but
the passion of a multitude, Muslim and Sikhs, and scores of Hindu-led
Civil groups keen that such a law besmirch their proud history of
secular society. Kavita Shrivastava herself led the charge of civil
seen the law operate in Orissa, Arunachal and Madhya Pradesh and
Chhatisgarh, and later introduced in Gujarat and then Tamil Nadu, I know
first hand what its real intentions are – to deny Dalits the Freedom
of Choice in matters of Faith and liberty, to bring the State to assist
only one religion, and to divide citizens and their privileges and
rights on the basis of religion. Such laws – the second one keeps
Dalit Christians out of the paternal love of Indian law as provided in
the Constitution -- communalise an officially secular
. I have had official reason to ask Chief secretaries and Collectors the
number of forced or fraudulent conversions they have seen, caught or
punished. In twenty-five years and four states, the answer has been
Zero, really Zero. In fact, AICC chief Dr Joseph D Souza and I, with
much help from Udit Raj, had the undiluted pleasure to see the
conversion of 700 or so Dalits in a church in Chennai – to Buddhism!
With the state’s brutal police later beating up the contractor who
provided the chairs !!.
fact the manner in which Tamil Nadu chief minister J Jayalalitha first
imposd the anti conversion law to woo the Hindutva BJP and its cadres,
and the alacritiy with which she then withdrew the law (if not yet
fully) goes to show the utter sham of the reasons behind the politicians
falling back to such a law when the elections loom large.
has close to 70 million people, with not more than 100,000 Christians.
Why, then, is the government afraid of this micro minority, each speaker
at Jaipur meting wondered. To them it was clear that it was to make it
punitive for Dalits to seek the liberty of freedom of faith, it was to
Hinduise the polarise the body polity. It
was to win political advantage. The vagueness of clauses of the law was
to make it convenient for subservient police and civil officials to
harass the people. (Jaipur, 2nd April 2006)
ENGLISH TEXT OF RAJASTHAN BILL NUMBER 12 OF 2006
Bill for prohibition of conversion from one religion to another by the
use of force or allurement or by fraudulent means and for matters
it enacted by the Rajasthan State Legislature in the Fifty-seventh year
Short Title, extent and commencement:
This Act may be
called the Rajasthan Swatantrya Act, 2006
It extends to the whole State of
shall come into force at once.
Definitions – In this Act, unless this otherwise requires,
“unlawful” means which is in contravention of the provisions of this
“allurement” means offer of any temptation in the form of –
gift or ratification, either in cash or kind;
of any material benefit, either monetary or otherwise
means renouncing one’s own religion and adopting another
Own religion means religion of one’s forefathers;
“force” includes show of force or threat of injury of any kind
including threat of divine displeasure or social excommunication;
“fraudulent” means and includes misrepresentation or any other
Prohibition of conversion – No person shall convert or attempt to
convert either directly or otherwise any person from one religion to
another by use of force or by allurement or by any fraudulent means nor
shall any person abet such conversion.
Punishment for contravention of provisions of section 3 – Whoever
contravenes the provisions of section 3 shall, without prejudice to any
other criminal liability, be punished with simple imprisonment for a
term which shall not be less than two years but which may extend to five
years and shall also be liable to a fine, which may extend to fifty
Offence to be cognisable and non-bailable – Any offence under this Act
shall be cognisable and non-bailable and shall not be investigated by an
office below the rank of Deputy Superintendent of Police.
Power to make rules -- (1) The State government may make rules for the
purpose of carrying out the provisions of this Act.
All rules made under this act shall be laid, as soon as may be, after
they are so made, before the House of the State legislature, while it is
in session, f a period of not less than fourteen days day which may be
comprised in one session or in two successive sessions and if, before
the expiry of the session in which they are so laid or the session
immediately following, the House of the State Legislature makes any
modification in any of such rules or resolves that any such rule should
not be made, such rule shall, thereafter, have effect only in such
modified form or be of no effect, as the case may be, so however, that
any such modification or annulment shall be without prejudice to the
validity of anything previously done thereunder..
OF OBJECTS AND REASONS
has been observed by the State Government that some religious and other
institutions, bodies and individuals are found to the involved in
unlawful conversion from one religion to another by allurement or by
fraudulent means or forcibly which at times has caused annoyance in the
community belonging to the other religion. The inter-religious fabric is
weakened by such illegal activities and causes land and order problem
for the law enforcing machinery of the State.
order to curb such illegal activities and to maintain harmony amongst
persons of various religions, it has been considered expedient to enact
a special law for the purpose
Bill seeks to achieve the aforesaid objective
submissions on Rajasthan Dharma Swatantrya Bill, 2006 by Supreme Court
Senior Advocate Rajeev Dhawan’s `Public Interest Litigation Support
and Research Centre’
This is a response to the Rajasthan Dharma Swatantrya Bill, 2006
which has presently been approved by the Rajasthan Cabinet and will be
placed in the Legislature for approval.
WHAT THE CONSTITUTION MAKERS DEVISED: RIGHT TO BELIEF,
CONVERSION, PROPAGATION OF FAITH AND FREE SPEECH
The Constitution makers were concerned with the following
speech and expression [Article 19(1)(a)]
conscience [Article 25(1)]
profess, practice and propagate religion [Article 25(1)]
While the initial draft of the Constitution did not include the
term propagate, after deliberations in the Fundamental Rights Sub
Committee, Minorities Sub Committee , the Advisory Committee and the
Constituent Assembly, it was concluded that propagation would form a part
of the right to religion.
in the Courts
This ambit of the Constitutional protection of conversion was
examined by the Supreme Court in the Rev.
Stainislus case in which the Madhya Pradesh and the Orissa laws were
challenged on the ground of violation of Art. 25. The salient features of
the judgement are the following:
It held that
what Article 25(1) grants is not the right to convert another person to
one's own religion by exposition of its tenets."
It was held
that since any attempt at conversion was likely to result in a breach of
public order affecting the community at large, the State legislatures
would have the competence to enact the legislation.
CRITIQUE OF THE rajasthan LEgisLATION: PURPOSE AND INTENT
In order to critique the Bill, the purpose and intent of the Bill
has to be examined. While the malafide of a legislative enactment cannot
be challenged, the Supreme Court has rightly held that ‘the Court can tear
the veil to decide the real nature of the statute’. Tearing the veil
legislative purpose; and,
The Statement of Objects
and Reasons of the present Bill states as follows:
has been observed by the State Government that some religious and other
institutions, bodies and individuals are found to the involved in unlawful
conversion from one religion to another by allurement or by fraudulent
means or forcibly which at times has
caused annoyance in the community belonging to the other religion.
The inter-religious fabric is weakened by such illegal activities and causes
land and order problem for
the law enforcing machinery of the State. [Emphasis added]
order to curb such illegal activities and to maintain harmony amongst
persons of various religions, it has been considered expedient to enact a
special law for the purpose.
In the context of restrictions on fundamental rights, public order
has specific technical meaning which has been narrowly tailored by the
Supreme Court. The Court has held that public order is something more than
the mere maintenance of law and order and acts which disturb law and order
may not amount to a threat to the public order. Thus, public order is a
narrower and more rigid classification of the former and the two cannot be
According to the statement of objects and reasons, the introduction
of this Bill was desirable and necessary because of the following reasons:
caused to a religious community; and
Law and order
Both of these reasons are completely
inadequate to justify a restraint of the manner imposed in the Bill
As has been
seen, law and order is not congruous to public order and restrictions
cannot be imposed on Constitutional freedoms on the ground of law and
order. In the present context, if there are any inter-religious tensions
because of conversion, the state has been amply empowered by the Indian
Penal Code to deal with such situations. Chapter XV of the IPC gives the
State wide ranging powers to deal with law and order problems arising out
of religious tensions.
caused to a religious community is completely unacceptable as a ground for
restricting Constitutional freedoms. The State is empowered under the IPC
and the CrPC to regulate behaviour such as speech, publications,
demonstrations, etc which may cause annoyance to religious communities.
DETAILED ANALYSIS OF THE BILL
Short title, extent and
commencement (Section 1)
legislative amendments have a provision stating that they shall come into
force when the Government, in its discretion, deems fit to notify it by
publishing it in the Official Gazette. However, in this case, there is no
such discretion as the Bill itself provides that it shall come into force
at once. In this respect, the Bill is placed on par with legislations such
as TADA, POTA, which involve matters of such grave public implication and
urgency such that the Government can have no discretion in them coming
Definitions Clause (Section
of unlawful is overbroad,
circular and open to misinterpretation especially as it is dependant on
the other provisions of the Bill, which are in themselves over inclusive
definition of allurement is
identical to the definition of the term ‘inducement’ in the Orissa
Freedom of Religion Act 1967, which was struck down by the Orissa High
Court on the ground that it was open to the reasonable objection on the
ground that it was too broad and surpassed into the field of morality.
While the judgement was later overruled in the Rev.
Stainislus case, this aspect of the legislation was not discussed and
is thus open to challenge
of conversion shows the
partisan nature of the Bill, which includes conversions, but does not
include re-conversions. This means that, for example, conversions from
Hinduism to other religions are covered in the section, but not
re-conversions back to the original faith. It is pertinent to note that
this narrow definition of conversion is an addition in the present
definitions of force and fraudulent
are extremely broad and cover a vast number of situations which could
possibly be used to include activities of propagation. Any religious
propaganda could be considered to be a misrepresentation or force within
the meanings of these definitions.
has criminalizes conversion or attempt to conversion, directly or
otherwise. This is an extremely wide clause and within the scope of
attempting, directly or otherwise, a whole range of religious activities
can be included, including the propagation of religion.
It may also
extend to cover incidental matters such as conversions according to
personal laws. For instance, if a Hindu woman marries a Muslim and
converts, and a Meher amount is
fixed during the marriage according to Muslim personal laws, this would be
covered under this section as conversion by allurement.
Section has also placed conversion and attempt to convert has been placed
on the same footing, and the punishment is the same for both of them. This
is in violation of the principle of criminal jurisprudence (recognized in
the Indian Penal Code) that the attempt to commit an offence is less
serious that the actual commission of the offence and thus must be
overlooks the various nuances of criminal liability for the abetment of an
offence and simply provides a common liability.
Punishment section (Section 4)
clause demonstrates the manner in which the Government has tried to
criminalize religious conversions. The penalty is harsher than the penalty
for offences like rioting, causing death by negligence, wrongful
restraint, etc. Such a harsh punishment clause, combined with the broad
inclusion in Section 3 creates a situation in which normal religious
activities of propagation are hampered.
As has been
mentioned earlier, the Bill ignores the principles of criminal
jurisprudence with respect to the criminal liability for attempt and
Section provides for investigation by a senior level Police officer, it
removes the prior sanction from the civilian district authorities which
had been provided in preceding anti-conversion legislations. This
concentration of authority in the hands of the Police and the lack of
supervision from the district administration makes the Bill vulnerable to
Also, we see
that it makes the offence non-bailable and this underscores the attempt of
the Government to make any offence under this Bill a grave one.
There are no
other provisions to ensure that the powers are not abused and that due
process requirements are met.
possibility of abuse of the powers under this Bill, especially at the
hands of the Police leads to the Bill directly curtailing the right of
religions, especially minorities, to propagate.
The present Bill can be challenged not only on the ground that is
violative of the Constitutional freedoms of speech and religion, but also
because it violates secularism, which is a part if the basic structure of
the Constitution. In the case of the present legislation, it is clear that
the State is actively intervening in a partisan manner to protect a
particular religion from a perceived crisis. There can be no doubt that
this Bill has been drafted with the legislative intent and purpose of
preferring the rights of one religion at the cost of the minority
religions. It targets particular communities both to stop efforts to
convert and to create a situation of intimidation where others are
unwilling to convert. Even in practice, the enforcement of the Bill will
amount to community targeting and will be implemented in a manner which
will exacerbate communal tensions. Thus, the Bill, both in purpose and in
its inevitable effect is a violation of the secular structure of the
AND FUTURE STRATEGY
It is evident from the foregoing discussion that the present
Rajasthan Bill is constitutionally invalid and flawed due to the
The Bill seeks to impose restrict the right to
freedom of religion and speech on the grounds of law and order, which is
The Bill direct and inevitable effect of the
Bill is not only to regulate conversions, but also to cripple the right of
religions, especially minority religions to propagate their faith.
This affects the rights of an individual to be
converted, which is a part of the fundamental right to religion.
The Bill is partisan in its purpose and intent
as it seeks to protect the community from which the conversions are taking
The provisions of the Bill are over inclusive
and provide enough loopholes for abuse of the powers under the Bill.
It violates the requirements of due process and
ignores principle of criminal jurisprudence.
In view of the above, the constitutionality of the Bill is open to
challenge. The possible objection to this may be the Stainislus
judgement of the Supreme Court, but those objections may be addressed as
The Supreme Court judgment in Stanislaus
was directed towards only forced conversion or coercive conversion and
thus has to be strictly interpreted.
The judgement has not addressed the particular
provisions of the legislations and they still remain open to challenge.
While the constitutionality of the Bill may be challenged, it is
worthwhile as matter of strategy, to keep the following factors in mind:
There has to be internal religious reform to
create a structure for conversions which demonstrate that the conversion
was genuine, informed and without force or coercion.
Individual conversions where the intention of
the convertee to freely convert can be clearly demonstrated should, as far
as practicable, be preferred to mass conversions.
As a precaution, it is necessary to work on the
presumption of the validity of the Act, when passed, and devise litigation
strategies which will minimize to the extent possible the rigors of the