Mr. Manu Sebastian: “An important news of this week is the Supreme Court hearing a PIL which seeks to regulate forceful conversion. The Supreme Court has observed that it is a “very serious” issue and has directed the central government to collect information from the states regarding laws made for regulating religious conversions. Several states in India have made laws to regulate religious conversion and a common feature of most of these laws is that they have a section which mandates that a person who wants to convert should give prior information to the district magistrate. It is only with the approval of the district magistrate that the person can convert. This provision is applicable even for persons who are converting for an Interfaith marriage. The Gujarat High Court last year and the Madhya Pradesh High Court last month had stayed these provisions, saying that they are violating a person’s right to privacy. The Gujarat state has approached the Supreme Court, and in the PIL proceedings, the Gujarat government told the Supreme Court that this provision regarding prior sanction of the district magistrate is a precautionary provision seeking to protect women and people belonging to backward classes. Is there a legitimate State interest in knowing if a person has changed his or her religion?”
Former SC Judge Justice Deepak Gupta had also stated last week that the Supreme Court of India should not entertain this PIL at all.
Justice Deepak Gupta: “My views are very clear. Many years ago, as a judge of the Himachal Pradesh High Court, I dealt with a similar provision and held it to be violative of the Constitution and said that it invades the right of privacy of a person. In fact, with this privacy judgment in the Puttaswamy case, I think my judgment becomes strengthened. What business does the government have to know what is your or my religion? Are we, in a country like India, bound to disclose what are our religious beliefs? We may not have any religious beliefs, we may be agnostics, atheists, believers, we may not be ritualistic but spiritual. In Hinduism, you have so many different ways of life. How does it concern the government what religion you belong to? Many years back, about 2-3 decades ago, the Supreme Court clearly held that Article 25 which gives the right to propagate your religion does not include the right to convert. So conversion, I understand that being made illegal if it is by allurement, by fraud, by coercion. But how can you tell a person that if I want to change my religious beliefs, why should I have to take the permission of anybody, if I am an adult? Least of all the government. I don’t need to take permission from my parents. Suppose I am born in religion ‘A’ but after growing up I believe that I want to follow religion ‘B’ or religion ‘C’, if a notice is to be given, you are inviting trouble. If the whole purpose and the stand of the government is that we have to protect the people, they’re doing a nuisance because it is going to cause more harm. There are those who want to change their faith for very personal reasons such as love, personal choice or any other reason. How on earth does the State have the right? I wonder why the State should even know my caste, leave aside my religion. They should be totally unbiased of that. If somebody breaks the law, then natural consequence should follow. But what they’re trying to do here is that if you give a notice, then obviously your family members will oppose you, your neighbours will oppose you, sometimes even the family may not oppose you but others who have no concern who are opposing and they create a scene. Are we to be ruled by a majority or by the rule of law?”
Concept of “allurement” in anti-conversion laws are kept very vague
Mr. Sebastian: “The other aspect of the debate is the concept of allurement. There is no quarrel that there should be no forceful conversion, that no one should be converted by force or coercion. But most of the states have this provision regarding inducement or allurement. The definition seems to be quite broad and vague. A person may change his religion for whatever reason, and if a person is changing his religion for monetary gains, that may be an ethically debatable issue, that could be an opportunistic act which may not meet society’s or even ethical approval, but should there be a crime for that? Should a person be penalised for doing that? Is there a State interest in that field?”
Justice Gupta: “The word allurement has been left delightfully vague in most of the enactments. There are three words used normally in all the enactments- coercion, no quarrel with that, fraud, no quarrel with that, if somebody is converted by coercion or fraud, there is no quarrel, it has to be an offence, but allurement can go to very different levels. Suppose one mission of a religion is running a hospital or a school and they’re not asking you to forcefully come and convert if you want to join the school or to go to the medical institution, but after the seeing the work being done there, maybe you got treatment, maybe the studies, you feel like changing your religion, which is your choice as long as you are an adult? I’m not going into minors changing their religion because that may be a little controversial because then you can kind of force them to move in a certain manner. But if you are an adult and if you decide to change your religion, somebody may say that it is allurement because you are being given education in a good school. I can understand it is allurement if they say that if you convert to a religion, we will give you free education and not otherwise. That may call for some criminal act. But if I converted thinking that I will benefit by the religion, I don’t see why the government should have any concern with that. Do you or I need government permission to change political views because we want political gains? We are seeing this day in and day out, elected members of every level from the Parliament down to the assemblies and Vidhan Sabhas, municipal wards, change their sides only because of political gains and nothing else. You don’t have any objection, you don’t want them to take permission from the district magistrate then, and that is something which is in the public realm. My political views, especially if I am an elected member, is in the public realm. But my religious views are my own. It is said that a man’s home is his castle, I said in my judgment that his mind is his impregnable fortress which nobody has the right to enter. And that impregnable fortress is where I think, I may not always be right in my thoughts but I have the right to believe in what I think, follow what I think as long as I don’t cause harm to any other person. The right to privacy is now held to be a fundamental right. No doubt any every fundamental right can be limited, it can be circumscribed, if there is sovereignty of the State involved, integrity of the country, law and order, or health come in. How is the change of religion of any person in this area? In fact, the problem of law and order may arise if every time you ask them to declare it in public and then these so-called people who wield the lathi or the gun will say ‘how the hell are you changing your religion? You cannot do it. Marry somebody of your own religion, don’t marry somebody else'”
Mr. Sebastian: “You are saying law and order problem is created by the vigilante mobs who are creating problem because an individual has changed his or her religion?”
Justice Gupta: “In any democratic civilised society, can we ever think of vigilantism? Can we ever think of kangaroo courts? The moment we give in to this, we are heading towards anarchy. Because we are the anti-thesis of constitutional courts of the rule of law”
Anti-conversion laws are coming for political reasons than actual reasons
Mr. Sebastian: “There are certain questions raised, there is a debate that this is an exaggeration that mass conversion is going on in many parts of the country and that it is mostly an alarm raised for furthering certain motives. Now you have dealt with the Himachal Pradesh Act in your 2012 judgment, as a judge of the Himachal Pradesh High Court. In the judgment, there was an observation that for the past six years when the Act was in force, only one case has been registered- so that observation was made in that judgment. Do you think that such laws are based on exaggerated claims or is the ground reality something different?”
Justice Gupta: “I am not really competent to talk about ground realities. I can only talk about my state Himachal, and at that stage, based on the facts that were before me. I really don’t know what is happening. If people are being converted by coercion or fraud or allurement of the nature that I alluded to earlier, that may be violative of the law laid down. It is nothing wrong if the law is made to that extent. But you cannot take it to the extent that the offender would be the person who converts. Here, you are making the person who is converting the criminal. Even when there is fraud or coercion or allurement against him, that person is virtually a victim. Even if I take the other view that he has been fraudulently converted, that person is the victim, why should that person become the criminal and be charged with an offence because he or she has not applied for a permission. I can tell you one thing that I can say with certainty- these Acts are coming for political reasons more than actual reasons. I can’t talk of the whole country but in Himachal, I knew at that time that the percentage of conversion was hardly there, it is a very educated state, the literacy rate is one of the highest in the country. It is not that people don’t change religions, people change religions, people even change thoughts, you develop when thoughts change, you cannot live in the same old religious thoughts all the time. So there will be some development, religion also changes with time, it is not that it doesn’t change with time. But I’m not sure, I cannot say with certainty…because one has read reports, whether there is mass conversion in central India, in the tribal areas, where it is being said that they are almost being forced to convert, that may be there I don’t know. Interestingly, the Act in Himachal was brought in by a Congress government supported by the BJP, the only amendment that was made by the opposition was to make it archer, the Congress chief minister readily agreed to. It was passed unanimously, the Act. I only struck down that portion of the Act and the rules which asked a converted to disclose his or her intention to change the religion”
Supreme Court has better things to do than to entertain the PIL relating to conversions
Mr. Sebastian: “In the present proceedings before the Supreme Court, an interesting aspect of the case history is that the same petitioner had filed the petition before the Supreme Court itself which had come up before Justice Nariman and the bench expressed disinclination to entertain it and it was withdrawn. Then it was filed in the Delhi High Court, that was also withdrawn. The Supreme Court present bench said it won’t go into maintainability, technicality. But do you think it is a normal procedure for the Supreme Court or any other court to accept such a behaviour in a PIL petition?”
Justice Gupta: “Things grow curiouser and curiouser. I wonder why should the Supreme Court, I think it has many better things to do than to entertain a PIL of this nature. Not that this matter is not pending before the Supreme Court, it is only pending in an appeal or SLP filed by the Gujarat government against the Gujarat High Court judgment. Where is the question of saying which states have implemented or not. It is not in the domain of the judiciary to decide what sort of legislation should be passed by legislature. Why should we start asking them at the instance of a person who is in court every second day? And especially when I don’t know if he disclosed that earlier he had withdrawn the petition. He was duty-bound to disclose that. Not only that, Justice Nariman had made some observations…I believe that if you don’t find merit in the petition, just dismiss it, don’t say ‘we give you liberty to move another court’. A lot of the time, this liberty is misused”
Mr. Sebastian: “As per the records, this liberty is not seen granted. It was just withdrawn”
Justice Gupta: “Then the second petition is not maintainable”
The ambit of the word “propagate” in Article 25
Mr. Sebastian: “There is another debate regarding the ambit of the word propagate in article 25. The Supreme Court judgment has said that propagate would not amount to the right to convert somebody. What do you think, in your personal view, is the ambit of this right to propagate? Where should the right stop?”
Justice Gupta: “We are bound by the law which is written by the Constitution bench in the Rev. Stainislaus case (1977). You have ‘gurus’, you have ‘maulvis’, you have ‘sadhus’ who give lectures, everybody is free to go to that lecture, it is not limited to any one religion. If somebody comes to my colony and delivers a lecture, maybe on Christianity or Hinduism or Sikhism or Islam or anything, and I am influenced by it, and if I am an adult, I can change my religion. So that is propagation where you expound the tenets of your faith, you may praise your faith but you cannot disparage any other faith. You can say that my faith is very good but you cannot see your faith is bad. Because you have to respect each other’s religion. You can set up schools and colleges but you cannot tell them that you must become a person of that faith or religion to take benefit of the school or college. Within the ambit of the Constitution, you can reserve a certain number of seats for your own community but you cannot say that you will only admit if you get converted, that is something which is prohibited. It will depend on a case to case basis. I would agree that propagation does not include conversion. Basically, India is Hindu- please don’t take that I am saying that others have no place, in my view, all of us are to live equally together- but from our ethos…Hindu is a non-proselytising religion, whereas some of the religions of the book are proselytising religions where a person gains merit in his religion by converting others. So whether it is by the word or the sword, if you convert more people, you gain more merit. So that is not there. So that part of conversion cannot be accepted. Conversion by the word can be accepted but not conversion by the sword. I don’t mean literally by the sword…”
The interview can be watched here
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