Acts of Bad Faith

On 29 December 2006, the government of the northern Indian state of Himachal Pradesh passed the Himachal Pradesh Freedom of Religion Bill 2006. The government claimed it was intended to prevent religious conversions through “force” or “inducement”. 

The bill – yet to be signed into law – is modelled on other existing anti-conversion laws in other Indian states, but it is unique in that it was adopted by a Congress Party-led state government. The Congress Party had opposed similar laws in the past in other states ruled by the Hindu nationalist Bharatiya Janata Party. However, Congress-ruled state governments in Arunachal Pradesh and Orissa have passed acts similar to the Himachal Pradesh bill, and taken together, these pieces of legislation expose the hollowness of the Congress Party’s claims of being a secular party. 

Once Himachal Pradesh signs the bill into law, it would be the sixth Indian state to adopt anti-conversion legislation, joining the ranks of Arunachal Pradesh, Orissa, Madhya Pradesh, Chhattisgarh, and Gujarat. A seventh state, Jharkhand is also expected to pass an anti-conversion law.  

There is no doubt that conversions brought about by violence or other equally illegitimate means of coercion cannot be permitted. Indeed, such conversions violate the freedom of religious beliefs protected within both the international instruments and the Indian Constitution. However, the language adopted by the Acts in these states goes far beyond protecting this fundamental right.  

The definition of force 

All the anti-conversion laws share a common definition of what constitutes “force” in forced conversions. As the Rajasthan Bill provides: 

‘Force’ includes a show of force or a threat of injury any kind, including threat of divine displeasure or social ex-communication. 

It is uncertain how this prohibition will work in practice. For example, if a religion teaches that non-adherents risk divine displeasure (as with Christianity, Islam, and Judaism), teaching this article of faith may constitute an act of force under the Act. This may be contrary to the freedom to change one’s religion. As H. M. Seervai points out in his discussion of the right to propagate, “[a] person cannot choose if he does not know what choices are open to him (sic)”. As a result of the overly broad definition of “force”, a person engaging another in order to bring about his or her conversion cannot inform the potential convert what the religion teaches about non-adherents. This limits the information that may be made available to the potential proselyte. An individual cannot fully exercise his or her freedom to change religion if such information is withheld. 

The definition of allurement 

According to the Rajasthan Bill: 

‘[a]llurement’ means offer of any temptation in the form of

1)       any gift or gratification, either in cash or in kind;

2) grant of any material benefit, either monetary or otherwise

The Madhya Pradesh, Chattissgarh and Gujarat anti-conversion laws rely on an identical definition. The Orissa and Arunachal Pradesh laws are worded slightly differently: 

[i]nducement shall include the offer of any gift or gratification, either in cash or in kind and shall also include the grant of any benefit, either pecuniary or otherwise. 

The High Court of Orissa struck this definition down as being too vague and passing into the realm of morality. Though the High Court’s decision was overturned by the Supreme Court in Stainislaus v. Madhya Pradesh & Ors, the Supreme Court did not discuss this aspect of the High Court’s judgment.  

The potentially broad scope of the term “allurement” is troubling. Christian groups have expressed concern that the provision might be used to prohibit acts of charity, as they might be interpreted as “temptations” to convert. As charitable acts are also fundamental to many religious traditions, such an interpretation may restrict the freedom of its adherents to practice their religion or religious beliefs. It is conceivable that the provision of education or medical care by religious denominations might also be interpreted as “temptations” intended to induce conversions.  

The definition of fraud

  The Rajasthan Bill and Gujarat Bill provide:

[f]raudulent’ means and includes misrepresentation or any other fraudulent contrivance.

 The Acts in Orissa, Madhya Pradesh, Arunachal Pradesh, Chhattisgarh Acts state:

 [f]raud shall include misrepresentation or any other fraudulent contrivance’.

Once more, the imprecision of this definition is apparent. To take an extreme example, if an individual was told they would feel closer to God upon conversion and the converted person did not subsequently experience this degree of spirituality, would this constitute ‘misrepresentation’? The legislation provides no guidance about how such a definition should be understood, and potentially it is extraordinarily wide in scope.  Indeed, the very idea of the concept of “fraud” in the context of religious belief is fraught with peril for a secular form of government.  How can a court adjudicate “fraud” in matters of faith without impermissibly entangling itself in the tenets of a religion?  

The prohibition of conversions 

All of the anti-conversion acts prohibit conversion in the following terms: 

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 inducement or by any fraudulent means, nor shall any person abet any such conversion. 

Supporters of the laws argue they are intended to prohibit conversions or conversion attempts that are conducted by allurement, force or fraud. They suggest that such conversions are presently taking place, and that these laws are designed to criminalize such activities. The anti-conversion acts are therefore presented and titled as if their purpose were the protection of the ‘freedom of religion’. 

These laws, however, actually serve to infringe upon religious freedom and contradict rights protected within international agreements and the Indian Constitution. Such laws are motivated by a religious ideology driven by an irrational and insecure Hindu xenophobia that is antagonistic to religious minorities.  

Anti-conversion laws and the Indian Constitution 

Articles 25 to 30 of the Indian Constitution deal with religion. Article 25 is most relevant for present purposes. It is similar to Article 18 of the Universal Declaration of Human Rights (UDHR). Article 25 reads in relevant part as follows: 

25. Freedom of conscience and free profession, practice and propagation of religion.

(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion.

(2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law—

(a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice;

(b) providing for social welfare and reform or the throwing open of Hindu religious institutions of a public character to all classes and sections of Hindus.                                                                                    

The Supreme Court has commented on the scope of the protection of religious freedom within the Constitution as follows: 

…while his (sic) religious beliefs are entirely his own and his freedom to hold those beliefs is absolute, he has not the right to act in any way he pleased (sic). 

The Constitution protects the freedom of individuals to hold any religious beliefs. However, the freedom to manifest one’s religion or belief is not absolute. Nonetheless, this freedom can only be limited according to the provisions of the Constitution. 

Anti-conversion laws and international safeguards 

While international instruments do not explicitly recognize a per se right to proselytise, there is a strong case to be made that the religious freedom within Article 18(1) of the International Covenant of Civil and Political Rights (ICCPR) encompasses the right to attempt to peacefully propagate one’s religious beliefs. That Article states: 

Everyone shall have the right to freedom of thought, conscience and   religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching. 

The United Nations Human Rights Committee has commented that ‘[t]he freedom to manifest religion or belief in worship, observance, practice and teaching encompasses a broad range of acts’. Further, the ‘practice and teaching of religion’ is said to include the ‘freedom to prepare and distribute religious texts and publications’. The Committee has concluded that the right to freedom of thought, conscience and religion is both ‘far-reaching and profound’. In light of these observations, it seems reasonable to conclude that the freedom should be interpreted to include distribution of texts and publications to non-adherents where the objective is to secure their conversion. 

The Human Rights Committee has also declared any restrictions on the freedom to manifest one’s religion or beliefs pursuant to Article 18(3) must be ‘directly related and proportionate to the specific need on which they are based.’ The Special Rapporteur of the Commission of Human Rights on freedom of religion or belief has similarly concluded that Article 18 allows for restrictions ‘only in exceptional circumstances’.  It is hard to understand what ‘exceptional circumstances’ exist in India that would justify the passage of so many anti-conversion laws.   

Conclusion 

The anti-conversion laws, both by their design and implementation, favour Hinduism over minority religions. This represents a significant challenge to Indian secularism. The erosion of the principles of secularism and toleration risks fanning inter-religious tensions. It is no exaggeration to say that India stands at a crossroads and must be careful to reassert its commitments to the tenets of religious toleration and secularism.

 Human Rights Features