Subject: Polity

Context

• While hearing a petition seeking a ban on forced conversions, Division Bench judge of the apex court said, “The purpose of charity should not be conversion. Every charity or good work is welcome, but what is required to be considered is the intention,” The observation, loaded with significant implications, is to be considered in the light of the provisions of the Constitution relating to people’s fundamental right to freedom of religion, its legislative history and judicial interpretation.

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Fundamental right to freedom of religion

• Right to freedom of thought, conscience and religion before the constitution of India: The Universal Declaration of Human Rights 1948, which was before the makers of the future Constitution for independent India had proclaimed: “Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance” [Article 18].
• Extensive debate on religious freedom as a people’s right in the Constituent Assembly: Keeping this in mind, religious freedom as a people’s right was repeatedly debated in the Constituent Assembly. In cognisance of Christianity’s traditions of evangelism and proselytisation, it was to include the right to propagate religion.

Journey of a Right to freedom of religion before and after The Constitution

• British rulers facilitated conversion to their religion: The British rulers of India, who were never shy of introducing measures to facilitate the conversion of others to their faith.
• British rulers enacted Native Converts Marriage Dissolution Act in 1866: They had enacted in 1866 a Native Converts Marriage Dissolution Act to provide the facility of divorce to married Indians who converted to Christianity and were thereupon deserted by their non-converting spouses.
• The Act recently dropped which was once thought to by the law commission of India: After Independence, the Law Commission of India recommended that this Act be revised to make it a general law on the effect of post-marriage change of religion, but the government did not take any action on it. The original Act remained in force till recently but was eventually dropped from the statute book by the Repealing and Amending Act of 2017.
• Alerted by the missionaries’ princely states enforced anti conversion laws: Alerted by the missionaries’ evangelistic activities, several princely states of the pre-Independence era had enforced anti-conversion laws Raigarh, Udaipur and Bikaner among them.
• Constitution Bench in case where state freedom of religion Acts was challenged: During 1967-68, state legislatures in Orissa and Madhya Pradesh enacted similar laws, both ostensibly titled as Freedom of Religion Act. Christian leaders lost no time in challenging their constitutional validity in the Supreme Court. Heading a Constitution Bench, Chief Justice of the time AN Ray, argued that converting people interfered with their religious freedom and held that Article 25 granted “not the right to convert another person to one’s own religion but (only) to transmit and spread one’s religion by an exposition of its tenets” .
• The Constitution Bench decision inspired some other states to enact similar laws: Beginning with the Arunachal Pradesh Freedom of Religion Act 1978. Today there are such laws in about half of our states. Some of these have been either newly enacted or made more stringent, since the beginning of the present political dispensation in 2014. All of them prohibit converting people from one to another religion without their free will and, to indicate this, use various expressions like force, fraud, inducement and allurement.
• Drafts on the conversion: While the first draft of the future Constitution proposed to restrain conversion except by one’s own free will, the second was to recognise the “right to preach and convert within limits compatible with public order and morality.”
• Constitution recognised the right to propagate: Eventually, the Constitution recognised the right to propagate, along with freedom of conscience and the right to profess and practice, one’s religion as people’s fundamental right. Prima facie, individuals’ right to forsake their religion by birth and embrace another faith was integral to freedom of conscience
• Supreme Courts observations regarding the right to propagate: As regards the propagation of religion, in two cases decided in 1954, the apex court observed that Article 25 covered every individual’s right “to propagate his religious views for the edification of others” (RP Gandhi) and that “it is the propagation of belief that is protected, no matter whether the propagation takes place in a church or monastery, or in a temple or parlour meeting” (Shirur Math).

Do you know this interesting news?

• The Bombay High Court has recently held that the freedom of conscience of a person “includes a right to openly say that he does not believe in any religion”

Mahatma Gandhi’s view on freedom of religion

• Mahatma Gandhi once said that “all faiths are equally true though equally imperfect”
• He had pleaded that, instead of converting others to one’s own faith, “our innermost prayer should be that a Hindu should be a better Hindu, a Muslim a better Muslim and a Christian a better Christian” (Young India, 1924).
• He had also once said: “If I had power and could legislate I should stop all proselytising” (Harijan, 1935).

How is religious freedom protected under the Constitution?

• Article 25(1) of the Constitution guarantees the “freedom of conscience and the right freely to profess, practise and propagate religion”.
• It is a right that guarantees a negative liberty — which means that the state shall ensure that there is no interference or obstacle to exercise this freedom.
• However, like all fundamental rights, the state can restrict the right for grounds of public order, decency, morality, health and other state interests.

Conclusion

• An observation made by the Supreme Court on “forced conversions” is to be considered in the light of the provisions of the Constitution relating to people’s fundamental right to freedom of religion, its legislative history and judicial interpretation and set the future roadmap to make. Pluralism and inclusiveness are characterized by religious freedom. Its purpose is to promote social harmony and diversity.

Mains question

Q. What is Fundamental right to freedom of religion? What was Mahatma Gandhi’s view on religion? How it is interpreted in the constitution of India?

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