Karl Marx, in his contribution to Critique of Hegel’s Philosophy of Right, wrote about religion, calling it the opium of the people. This was a positive connotation, for during Marx’s time, opium was a drug used to numb pain (like Morphine).
Religion enables us to find peace within ourselves, and it serves as a moral compass for our lives. Therefore, all liberal democracies of the world guarantee the right to freedom of religion to individuals. In India, this right is conferred through Article 25 of the Indian Constitution.
Related: Right to Freedom of Religion Under the Indian Constitution
Article 25: The Constituent Assembly Debates
When Article 25 of the Indian Constitution was debated in the Constituent Assembly, a question was brought up. Would the right to ‘propagate’ facilitate forced conversion?
KT Shah (a member of the Constituent Assembly of India) opposed this vociferously and suggested that a proviso be added to Article 19(1). He suggested that no religious propaganda intended to convert individuals shall be allowed in schools, colleges, hospitals, or other institutions funded or supported by public resources, where vulnerable individuals may be influenced by authority figures.
LK Maitra (another member of the Constituent Assembly) countered KT Shah, saying that even in a secular state, religion remains essential, especially in this era of widespread irreligiosity. He believed that to restore lost values, it is crucial to have the freedom to share sincere beliefs. According to him, propagation doesn’t imply force, coercion, or the sword; it can be achieved through exposition, illustration, and persuasion. In short, he believed that the term ‘propagate’ should remain in our laws and not be removed.
KM Munshi (a member of the Constituent Assembly’s Drafting Committee) famously said:
“So long as religion is religion, conversion by the free exercise of conscience is to be recognized. The word ‘propagate’ in this clause is nothing very much out of the way as some people think, nor is it fraught with dangerous consequences.” (C.A.D. Vol. 7 pg. 837)
The current version of Article 25 (1) is a reflection of the argument the Constituent Assembly of India accepted. It reads:
“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.”
To Convert or Not to Convert: The Dilemma
Anti-conversion laws have been at the centre of debates lately, with Karnataka all set to reverse its laws prohibiting conversion.
The debate around the constitutionality of such laws is never-ending.
One can trace its origin to pre-colonial laws such as the Raigarh Anti-Conversion Act of 1937. The rationale for the Raigarh law was that it would check the Christian missionaries’ attempts to proselytize (convert or attempt to convert from one religion to another).
Other such laws include the Surguja State Apostasy Act of 1942 and the Udaipur State Anti-Conversion Act of 1946.
Post-independence, the states passed many anti-conversion laws, and as expected, these were challenged in court. Out of the plethora of litigation involved, two events set the tone for the judicial response to these issues.
Madhya Pradesh legislature passed the Madhya Pradesh Dharma Swatantrata Adhiniyam in 1967, and in 1968, Orissa passed the Orissa Freedom of Religion Act. These laws shared a common feature: they banned religious conversion through the use of force, allurement, or fraudulently.
The Madhya Pradesh High Court upheld the Act (in Rev. Stanislaus vs State of MP), asserting that penalizing conversion through force, fraud, or allurement did not violate Article 25.
The Orissa High Court took a different stance, stating that the term ‘inducement’ was too vague and could not be included under the restrictions outlined in Article 25. Additionally, it ruled that the state legislature did not possess the authority to enact a law about religion. (Case: Yulitha Hyde vs State, 1973 A. Or. 116)
The Supreme Court of India decided to finally settle the debate in Rev. Stanislaus vs State of MP (1977 SCR 611) when the case came up before it.
Rev. Stanislaus vs State of MP (1977 SCR 611)
Rev. Stanislaus, a Christian priest from Madhya Pradesh, had challenged the Madhya Pradesh Dharma Swatantrata Adhiniyam of 1967. He contested the Act on two grounds. One was that the state legislature was not competent to make such a law, and two was that it violated Article 25. The Madhya Pradesh High Court upheld the constitutionality of the Act and dismissed the petition.
The case reached the Supreme Court of India, where Justice AN Ray considered the meaning of the word ‘propagate‘.
“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), ‘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.”
Based on this definition, Justice Ray concluded what the Article provides. He opined that it is not a privilege to convert someone to one’s faith but to disseminate or promote one’s religion through an exposition of its principles.
The court then went forward to say that Article 25 (1) of the Constitution guarantees ‘freedom of conscience’ to all citizens. Based on this, the court concluded that there is no Fundamental Right to convert someone to your religion. Deliberately trying to convert someone, rather than just sharing your religious beliefs, would infringe upon the “freedom of conscience” for all citizens.
Essentially, the court held that the freedom to convert would violate the freedom of conscience guaranteed under Article 25(1). This is the stance till today: Freedom of religion does not include the freedom to convert.
Anatomy of the Judgment: Academic Criticism
In his commentary on the Indian Constitution, HM Seervai was very critical of the Supreme Court’s judgement in Rev. Stanislaus. He called this judgement ‘clearly wrong’ and ‘productive of the greatest public mischief’ and that it ‘ought to be overruled’.
According to Seervai, the line of reasoning adopted by AN Ray was dissatisfactory. Freedom of religion was not limited to the religion one is born into. The presence of freedom of conscience testifies that the choice of religion is not restricted.
Seervai writes:
“The right to propagate religion gives a meaning to freedom of choice (of religion), for choice involves not only knowledge but an act of will. A person cannot choose if he does not know what choices are open to him. To propagate religion is not to impart knowledge and to spread it more widely but to produce intellectual and moral conviction leading to action, namely, the adoption of that religion. Successful propagation of religion would result in conversion. Conversion does not in any way interfere with the freedom of conscience but is a fulfilment of it and gives a meaning to it.” (Oxford Handbook on the Indian Constitution, ‘Secularism and Religious Freedom by Ronojoy Sen)
However, the Stanislaus judgment has not been overruled and has continued to be the precedent for 46 years now.
Conclusion
In its substance, the Stanislaus judgement overlooks the intention of the makers of the Constitution of India. It also stands against the views of our freedom fighters. MK Gandhi, in 1940, famously said:
“No legal hindrance can be put in the way of any Christian or of anybody preaching for the acceptance of his doctrine”.
Gandhi, as a lawyer, would have lost the Stanislaus case given the line of reasoning adopted in the Stanislaus judgement.
- Right to Convert Under the Right to Freedom of Religion in India - 26th March 2024
- Journey of Right to Freedom of Speech and Expression in India - 24th March 2024
- Relationship Between Fundamental Rights and Parliamentary Privileges in India - 4th May 2023
