conversion and the courts

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Journal of Hindu-Christian Studies

Volume 13 Article 7

2000

Conversion and the Courts

Ronald Neufeldt

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Recommended CitationNeufeldt, Ronald (2000) "Conversion and the Courts,"Journal of Hindu-Christian Studies: Vol. 13, Article 7.Available at: hp://dx.doi.org/10.7825/2164-6279.1227
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onversion and the ourtsRonald N eufeldt

University o algary

ONVERSION FROM ONE religion toanother has been a thorny issue throughoutthe history or the Indian subcontinent.Recently the controversy over conversionhas received new life, given a number ofevents which in effect resulted in a greatdeal of debate over the place of Christianswithin the State of India. Perhaps the twomost recent controversial events were thegruesome murder of Rev. Staines and histwo children in Orissa and the visit of thePope to India.Much of the ensuing discussion hasbeen of the emotional variety, dealing notonly with the killing of innocents, but alsothe justifiability of missionary work andconversions, and the place of minoritieswithin India. In all of the discussion that hastaken place, particularly on the ListServ,little attention has been given to legal andconstitutional issues other than a lengthyreference to the celebrated Rev. Stanislauscase by Ashok Chowgule. This amounted toa lengthy quote from Dr Praveen BhaiTogadia, the Secretary-General of theVishva Hindu Parishad. In that statement DrTogadia claims that the Supreme Court in itsruling on the Stanislaus case rejected in totothe claims of the Christian community. Theright pressed was presumably the right toconvert. Whether the spin given to thejudgement of the Court by Dr Togadia iscorrect or not, one thing is clear, conversion,and by implication the position of minoritiesin India, remains a controversial issue, bothin public debate and in the courts. I will notattempt an overview of relevant cases in thisshort paper, although this is, it seems to me,needed badly. Rather, I will attempt to usethe Stanislaus case and its background to ad-dress Hindu perceptions (misperceptions?)

of Christians particularly with respect topropagation. Propagation is I would argue,the single most important issue for the futureof Hindu-Christian relationships.The ontextIn 1967 the State of Orissa enacted theOrissa Freedom of Religion Act. n thestated objectives for the Act, the Statereferred to maladjustments and threats tolaw and order which may be brought aboutby conversions of a certain kind.

Conversion in its very process involvesan act of undennining another's faith.The process becomes all the moreobjectionable when this is broughtabout by recourse to methods like force,fraud, material inducement andexploitation of one's poverty, simplicityand ignorance. Conversion or anattempt to conversion in the abovemanner, besides creatingmaladjustments in social life, also giverise to problems of law and order. lThe Act was ostensibly aimed atconversions brought about by force, fraud,material . nducements, and exploitation.Important for our consideration. is themeaning given to some of these items.Conversion, for example, means renouncing one religion and adopting another .Force includes the threat of divinedispleasure . Fraud includes misrepresentation or any other fraudulent contrivance.,,2Interesting as well is the reference to theconversion ofminors, women, and membersof scheduled castes or tribes. These sectionsof society were seen as being in need ofspecial protection. Therefore the penaltiesfor conversion in such cases were muchmore severe than were the penalties for

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Neufeldt: Conversion and the Courts

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converting adult males who were notmembers of the scheduled castes or tribes.3A similar Act was passed by theMadhya Pradesh Legislature in 1968. It isessentially the same as the Orissa Freedomof Religion Act with the exception that itrequires that conversions be registered withthe District Magistrate.A third act which did not become partof the Stanislaus case, but which is worthconsidering, is the Arunachal PradeshFreedom ofReligion Act passed in 1978: Inmany respects it is the same as the Orissaand the Madhya Pradesh Acts. In oneimportant respect it is different. Its aim is toprohibit conversion from indigenous faith(this includes Buddhism, Vaishnavism, andnature worship), by means of force, fraud, orinducement. Of particular interest in thisAct is the appeal to indigenous faith.Conversion from indigenous faith is to beprevented as far as this is possible becauseostensibly such conversion is seen as athreat of some sort. Faiths not mentioned inthe definition of indigenous are byimplication clearly to be seen as alien.Public order is to be seen as somehow connected to adherence to indigenous faith.Thus any inducements such as appeals todivine displeasure or criticisms of indigenous faiths become threats to public order.he CaseBoth the Orissa Act and the MadhyaPradesh Act came under challenge at theState level before being heard on appeal bythe Supreme Court. In Orissa, in the case ofYulitha Hyde vs State (1973), the challengeagainst the Orissa Act was made on twogrounds, namely, (a) The State Legislaturehas no legislative competency to legislate onthe matters covered by the Act, and (b) TheAct infringes the fundamental rightguaranteed under Art. 25 of the Constitution .s The Act was eventually judged

by the Court to be ultra vires For ourpurposes . the interesting and pertinentaspects are the arguments surroundingpropagation and conversion. In his judgement, Justice R. N. Misra pointed out that 'the petitioners (both Catholic and Protestant)

Conversion and the Courts 13

admitted to various reasons for conversion -satisfaction of basic physical wants, theexemplary life led by Christians, theattraction of Christian beliefs, escape from adepressed class, and mild threats such asdivine displeasure.6 From the Christian sidepropagation was seen as an integral part ofChristianity. That is, Christ had given themandate to Christians to make disciples, andChristians felt compelled to share the gift ofsalvation with others. That propagation waspart of the religious duty of Christians wasaccepted by the Advocate for theGovernment ofOrissa.But, Justice Misra, appealing to thejudgement in Durgah Committee vs HussainAli (1961), went beyond this stating thatpropagation is part of the religious duty ofChristians and therefore a guaranteed rightunder the Constitution of India. We havehere one of the few judgements in whichconversion is seen as a right contemplatedby the articles on religious freedom.

The true scope of the guarantee underarticle 25 1) of the Constitution,. therefore, must be taken to extend topropagate religion and as a necessarycorollary of this proposition, conversioninto one's own religion has to beincluded in the right so far as Christianciti,zenship is concemed.7Speaking for one aspect of the Act, JusticeMisra suggested that the threat of divinedispleasure and the threat of excommunication did in fact constitute forms offorce and threat. However, the definition ofinducement in the Act was seen as being toobroad in that even invoking the blessings ofthe Lord or to say that by His grace yoursoul shall be elevated' may come within themischiefof he term .8The Act was, in the end, judged to beunconstitutional on three grounds, namely,article 25 (1) guarantees conversion as partof the Christian religion, the definition ofinducement is too vague, and the State hasno power to enact the legislation envisionedby the Act since Act deals with religionand not public order. The latter falls underthe competency of State legislation, but theformer does not.9

Journal of Hindu-Christian Studies, Vol. 13 [2000], Art. 7

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14 Ronald Neufeldt

Two years later the Madhya PradeshHigh Court heard a challenge to its ownreligious freedom act in Rev. Stanislaus vsState (1975). Since the provisions of the Actand the challenges to those provisions weresimilar to the Orissa Freedom of ReligionAct, Justice C. J. Tare made substantialreference to the judgement in the case of. Yulitha Hyde vs State. However, the purposeof these references was not to support thejudgement in Yulitha Hyde but to argueagainst that judgement.Appealing to the preamble of theMadhya Pradesh Act, Justice Tare arguedthat the Act did fall within the competenceof the State Legislature. Conversionsbrought about y force, fraud, or allurementwere for him matters of public order. TheAct therefore had to do with public orderand not simply with religion as thejudgement in Yulitha Hyde seemed toindicate. n the view of Justice Tare, the Actfell within the competence of the StateLegislature because it had to do with publicorder and not simply with religious freedom.Had the Act been confmed only to freedomof religion it would not have fallen within. the competence of he State. IOJustice Tare also found, in opposition tothe judgement of Justice Misra, that theprovisions of the' Act did not violate Article25 (1) of the Constitution. Shifting theargument away from the issue of the broaddefinitions of allurement, force, and fraud,Justice Tare argued that the provisions in theAct merely prohibit conversions y spuriousmeans and therefore guarantee religiousfreedom even to those who might beamenable to such conversions. Thearguments here were significant in that theywere repeated with some changes in theSupreme Court decision. On the one hand heargued that freedom of religion cannot econstrued to e the right of an individual toencroach upon similar freedom of otherindividuals y questionable means .l1 Onthe other hand, to attempt to convert usingforce, fraud, or allurement might indeedcreate a threat for public order, here definedas community as opposed to the individual.I2Two other points concerning the

decision of Justice Tare need to beemphasized since these become issues in theSupreme Court decision in the same case.Relying heavily on the Supreme Courtjudgements in Ratilal Punamchand Gandhivs State o Bombay (1954) and Com-misioner Hindu Religious Endowments vsSri Lakshmindra Tirtha Swamiar (1954), theJustice emphasized that the purpose ofpropagation was simply the edification ofothers. I3 This is quite different from theunderstanding of conversion in Yulitha Hydewhere conversion was seen as a legitimatepurpose of propagation - indeed as a rightrecognized y the Constitution in the case ofChristians. Secondly, playing on thewealrnesses of people amenable to force,fraud, or allurement is a contravention oftheir own right to religious freedom. Tohave an Act that prohibits such activities is,in fact, to guarantee religious freedom toweaker sections of society. The issue here isnot to protect against conversion per se, butto protect against conversion of those whomight be amenable to fraud. The Act then isseen as a protective measure for those whoneed the protection of the State. Whether ornot the argument holds any water, it needs toe pointed out here since it is used in theSupreme Court decision in Stanislaus butwith a rilUch wider application than thatcontemplated y Justice Tare.Both cases, because they presentedsimilar issues and arguments, were heardtogether y the Supreme Court in 1977. Thedecision of the Court was written y ChiefJustice Ray. The two issues singled out ythe Chief Justice were the right to propagateand the competency of the State Legislaturesto enact the Freedom of Religion Acts.

Emphasizing that the Acts were aimed atforcible conversion and therefore have to donot so much with religion as they have to dowith the maintenance of public order, theChief Justice argued that the States had thecompetency to enact the impugnedlegislation. n making this ruling the ChiefJustice referred for support to Ramjilal Modivs State o U P (1957), in which it wasemphasized that a law relafJ Ilg to religioncan be enacted in the interests of public




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order.14Of interest in the statements of theChief Justice is the argument that the mereapprehension of disturbance to public orderis enough to justify the impugned Act andthe argument that conversions effected in a

manner reprehensible to the conscience ofthe ~ o m m u n t y are justifiably prohibited bythe Impugned Acts. This argument, it wouldseem, opens up the possibility ofprohibitingany conversion if the community decidesthat it is reprehensible. f this is anacceptable conclusion, and at times thisseems to be the gloss that organizations likethe VHP sometimes put on the decision,then the Acts serve potentially to. prohibitany conversions whatsoever. Or, it makesthe right to convert or to seek conversionsdependent on the will or vote of themajority. This I would suggest goes beyondwhat the framers of the Constitution wantedand what the Constitution itself suggests.Furthermore, it is precisely the kind ofsituation that the framers of the Constitutionwere trying to prevent, i.e. that the exerciseof religious freedom should become depend-ent on the will of the majority community.. On the issue ofpropagation the concernof the Chief Justice turns on the argumentmade by the appellant that implied in theright to propagate is the right to convert aperson to one's own religion. Taking anarrow view of the word propagate, andfmding support in Ratilal vs he State oombay (1954) the Chief Justice argued thatthe right to propagate is confmed totransmitting or spreading the tenets of one'sown religion. t will be recalled that in theRatilal case it was argued that the purpose ofpropagation is edification, not conversio:n.Speaking to the rights enshrined in Article25 Ray states:

What the Article grants is not the rightto convert another person to one's ownreligion, but to transmit or spread one'sreligion by an exposition of its tenets. thas to be remembered that Article 25(1) guarantees freedom of conscience .to every citizen, and not merely to thefollowers of one particular religion, andthat, in turn, postulates that there is no


fundamental right to convert anotherperson to one's own religion because ifa person purposely undertakes theconversion of another person to hisreligion, as distinguished from his effortto transmit or spread the tenets of hisreligion, that would impinge on thefreedom of conscience guaranteed toall citizens of he country alike. 15

The language of the Chief Justice wouldseem to suggest that if I am offended bysomeone's attempt to convert me, this isenough to make the attempt illegal. The.Chief Justice also appears to be saying thatsince conversion does not appear in thefundamental rights it cannot by implicationbe included as a right even if my religioncommands that I seek to convert in order tofulfil my religious duties.onclusionHow is one to understand the language inthis judgement? t is possible to take a verynarrow and literal approach as has been. done by spokespersons for the VHP and toclaim that Christians do not have the right toconvert another. This I would suggest wouldbe to take the pronouncements of the Chief. Justice out of context. One has to see thelanguage of the judgement in the context ofthe Freedom of Religion Acts and the M. P.

High Court case on which the Chief Justiceseems to depend. The Acts themselves in.spIte of the restraints placed on anyoneseeking to convert another do not prohibitsuch activity. They do prohibit seekingconversions by force, fraud, or inducementor allurement. The issue in both Acts is toprohibit conversions by questionable means.f this more contextual approach to thedecision in the Stanislaus case is correctthen I would suggest that the claim that theCourt has said that no one has the right to

convert is a red herring. To put the issue inthose simplistic terms is to ignore thecomplexity of the issue and the history ofthe interpretation of Article 25. There is adistinction to be ma,de between saying that Ihave a right to convert someone and that Ihave a right to seek to convert someone. Thelatter is not ruled out even by the narrow




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understanding of propagation, which saysthat I have the right to propagate only for thesake of edification or spreading the tenets ofmy religion. Relevant court cases taken as awhole seem to assert two rights implied bythe fundamental rights. I have the right toconvert to another religion and I have theright to seek to convince others about therightness ofmy views. As cases dealing withfreedom of speech suggest, without the latteras implied, the provision for freedom ofspeech would be an empty provision. 16Furthermore it needs to be pointed out thatthe framers of the Constitution understoodthat conversions would flow from theexercise of the fundamental rights and thecourts have tended to see things the sameway. Conversion is seen by the courts to bea part of the fabric of a multireligioussociety that guarantees to people the right topropagate their views.Even if one grants a contextual readingofStanislaus there are problematic aspectsin the language of he Chief Justice. First, heseems to suggest that to insist on conversionas a fundamental right is to move in thedirection of employing questionable means.This is to conflate the insistence on the rightto convert with the right to force one's viewson someone. This is, in the eyes of the ChiefJustice, particUlarly pernicious with respectto the weaker sections of society which theActs were designed to defend. The languagetaken at face value is similar to the rhetoricfound in the infamous Niyogi CommissionReport and in some of the arguments putforward against the right to propagate duringthe Constituent Assembly debates. t is thekind of rhetoric that suggests that conversioncan only be conversion by force, fraud, orallurement - that there cannot be conversionof another kind. It is the kind of rhetoric thatsuggests that conversion is by definition anact of violence and disruption. Pertinent hereis the definition of conversion provided inthe Freedom of Religion Acts - thatconversion is ''renouncing one's religion andadopting another . Such a simplistic definition can only result in the misrepresentationof the relationship of potential converts tothe community and the State. I have in mind

here the business of dual allegiances, areality which is recognized in the historiesof converts and by the courts themselves incases dealing with conversion and membership in scheduled castes.17Secondly, it seems to be the view of theChief Justice that any conversion thatoffends the conscience of the community isreprehensible and liable to be a threat topublic order. Such arguments open up thepossibility to prohibiting any conversionwhatsoever if the community decides that itis for one reason or another reprehensible. fthis is a correct interpretation it would makeany attempt to seek a conversion dependenton the will of he majority. This would seemto lead to the very situation that theConstitution of India seeks to avoiCl, namely,that the exercise of religious freedombecomes dependent on the will of thereligious majority.Thirdly, to argue that the mereapprehension of disturbance to public orderis enough to prohibit or to seriouslycircumscribe conversion activity is to argueagainst the direction that the Courts ruivetaken in cases dealing with insult andreligious procession. The Courts haveargued that to justify a piece oflegislation asbeing in the interests of public order theremust be more than simply a perception thatthere might be a disturbance of some sort.The responsibility to protect public order isnot met simply by placing a ban on thepropagation of one's views or a ban onreligious processions. SFinally, the judgement of Chief JusticeRay goes far further in the protection ofweaker sections of society than the courtshave been willing to go in cases dealing withinsult to religion. The subtext of hisjudgement seems to be that becauseChristians prey on weaker sections ofsociety in their conversion efforts, theseweaker sections need special protection toguarantee their freedom of conscience. t ison this point that constitutional experts havefound the decision to be both wanting andpotentially pernicious. In his monumentalwork on constitutional law in India H. M.Servai, former Advocate General of Maha-




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rashtra, takes issue with Chief Justice Ray'semphasis on freedom of conscience at theexpense of freedom of religion. He insiststhat the two must harmonize to provide for asystem that gives free choice in matters ofreligion. Likewise the provision for propagation must be seen as harmonizing with thefreedom of conscience.

The right to propagate religion gives ameaning to freedom of choice, forchoice involves not only laiowledge butan act of will. To propagate religion isnot only to impart laiowledge and tospread it more widely, but to produceintellectual and moral convictionleading to action, namely, the adoptionof that. religion. Successful propagationof religion would result in conversion:Ray C. J mistakenly believed that i Adeliberately set out to convert B bypropagating A s religion, that wouldimpinge on B s freedom ofconscience... conversion does not in any wayinterfere with the freedom of consciencebut is a fulfilment of it and givesmeaning to it. It is submitted that theabove view harmonizes with thelegislative history of Art. 25(1) and theinclusion of the word propagate in it.It harmonizes with a matter of commonlaiowledge that several religions areproselytizing religions as a matter ofreligious duty, and it harmonizes withthe meaning of the words propagate ,convert , and conversion , freedomof conscience and the right freely toprofess and practise religion.19

The argument that propagation is to be foredification only is, I would suggest anargument that caters to elements of themajority religious community. Certainly it isan idea with which the majority religiouscommunity will be more comfortable than itwill be with the idea of propagation for thesake of conversion. But it is not the only lineof argument taken by the Courts. As I havesuggested earlier in this treatment there arecases in which the decisions challenge thenotion that propagation must be foredification only. This is clearly the line ofargument that Servai takes m hiscommentary on the Stanislaus case.


Notes1 Lalit Mohan Suri (ed.), The Current IndianStatutes. (Chandigarh: Law Reporter Press,1968), Part VI, p. 5.2. Suri, Part VI, p. 5.3. Suri, Part VI, p. 54. See the discussion in Bojendra NathBanerjee, Religious Conversions in India(New Delhi: Hamam Publications, 1982),pp.261-67.5 Yulitha Hyde vs State 1973, IR Orissa, p.117.6 Yulitha Hyde p. 118.7. Yulitha Hyde p. 120.8 Yulitha Hyde p. 121.9 Yulitha Hyde p. 123.10. Rev. Stanislaus vs State 1975 IR M. P.,pp.164-65.11. Stanislaus 1975, p. 166.12. Stanislaus 1975, pp. 171-72.13. Stanislaus 1975, pp. 164-65.14 Rev. Stanislaus vs State o M P. 1977, AIRS. C p. 912.15. Stanislaus 1977, p. 911.16. See, for example, State o U P vs LalaiSingh 1977 S. C. and Ramesh vs Union o. India 1988,S. C. In both judgementspropagation of one 's views, with an eye toconverting the other is seen as a legitimateenterprise. And criticism of another'sreligion in this context cannot be construedas insult simply because someone or somegroup finds the criticism objectionable. Togive in to such objections is to give in tofanaticism.17. See, for example, Chatturbhuj Vithaldas vsMoreshwar Parashram 1954, AIR S C. inwhich it is argued that a .convert can forpractical purposes retain old social, political,

and caste ties i he old order chooses not toexcommunicate him or her. See also CArumugam vs S Rajagopal 1976, IR S. C.in which Justice Bhagawati argued for thecourt that castes may consist of persons whowere Hindu and persons professing otherreligions and that conversion from Hinduismdid not necessarily mean loss of caste.18. See, for example, the argument in Indulal vsState 1963, IR Gujarat, in which it isargued that there must be more than afanciful connection between propagationand the threat to public order to justify a banon propagation. In Gulam Abbas vs State oU P. 1981, AIR S. C., the court argued thatauthorities have a responsibility to deal with




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18 Ronald Neufeldt

those likely to create disturbances ratherthan to take the easy route o imposing aban. See also the strong language on thispoint in the series o cases,Jagdishwarananda vs Police CommissionerCalcutta 1984, AIR S C., Jagdishwara-nanda vs Commissioner o Police Calcutta

1990, AIR, Calcutta, and Commissioner oPolice vs Jagdishwarananda 1991, IRCalcutta.19 H M Seervai, Constitutional Law o IndiaA Critical Commentary fourth edition),Bombay: N.M. Tripathi Private Ltd., 1991),p.1289.



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