“One of the most sacred principles of law is, that a written instrument must be construed upon the face of it, and that no parol evidence can be used for the purpose of inserting any words not therein contained.”
Article 25 of the Constitution of India provides the freedom to practise, profess, and propagate religion, but does it also cover the right to proselytise and convert others?
“One of the most sacred principles of law is, that a written instrument must be construed upon the face of it, and that no parol evidence can be used for the purpose of inserting any words not therein contained.”
— Sir R. Malins, High Court of England and Wales (1868)
The founders of modern India chose a very clear path for the new country — a republic with no state religion where everyone would be free to practise any faith. This is enshrined in Article 25 of the Constitution of India as the Right to Freedom of Religion.
“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, practice and propagate religion,” says Article 25 (1), laying out the fundamental right along with reasonable restrictions.
Article 25 now has a coveted place along with other fundamental rights in the ‘basic structure’ of the Constitution that emanates from the Kesavananda Bharati judgement (1973) of the Supreme Court. The doctrine says there is a ‘basic structure’ of the Constitution that’s beyond amendments.
“It ruled that the constituent power of Parliament under Article 368 does not enable it to alter the ‘basic structure’ of the Constitution. This means that the Parliament cannot abridge or take away a fundamental right that forms a part of the ‘basic structure’ of the Constitution,” notes M Laxmikanth in his book Indian Polity.
Since 1973, the scope of ‘basic structure’ has expanded to include judicial review of legislation and several other elements — though the exact extent remains uncodified. While this means that Article 25 is beyond abridgement, it does not mean it is beyond interpretation or adjudication. The Judiciary has faced questions with the extent —and the very meaning— of provisions of Article 25.
The right to freedom of religion is seen in two ways. One, the freedom from the state, meaning the state will not tell you to practise —or not practise— any religion. Two, the freedom from people, meaning they cannot do so as well.
While the position of the state is quite unambiguous here, the role of non-state actors has often reached the Judiciary. Religious conversion has been tricky not just for its social ramifications but also for the constitutional and legal interpretations it involves.
Religious conversions have been regulated since pre-Independence days. For example, Raigarh in present-day Madhya Pradesh enacted Raigarh State Conversion Act, 1936. One of the stated reasons at the time for such laws was to check foreign influence in princely states that might come with the advent of Christian missionaries. Spreading Christianity was, of course, central to colonialism. ‘God’ has been cited as one of the ‘three Gs’ that drove colonial zeal, with the other two being ‘Gold’ and ‘Glory’.
In 1967, Madhya Pradesh enacted Madhya Pradesh Dharma Swatantrata Adhiniyam — translated as Madhya Pradesh Religious Freedom Act. It required a person seeking to convert another person to report it to the District Magistrate within a set period of time. In 1968, Odisha —then Orrisa— enacted the Orrisa Freedom of Religion Act. Both of these laws were challenged in courts.
While the MP High Court upheld the state law, the Odisha HC held its state law unconstitutional. Both the high court judgements were challenged in the Supreme Court. The resultant judgement has since come to define the conversion debate.
First things first, ‘conversion’ here means converting someone else to your religion —proselytisation— and not yourself converting to some other religion.
When the Madhya Pradesh and Odisha laws reached the Supreme Court, the central question that the apex court faced regarding Article 25 and the right to convert others was whether the right to “propagate” meant the right to “proselytise” as well? In 1977, the Supreme Court ruled it did not mean so.
In Rev. Stainislaus vs. State of Madhya Pradesh and Others (1977), the Supreme Court ruled that the right to propagate does not mean the right to proselytise. The apex court also overruled the stand of the Odisha High Court that said proselytism was within the scope of Article 25 as it’s central to the Christian faith.
“The word ‘propagate’ has been used in the Article as meaning to transmit or spread from person to person or from place to place. The Article does not grant right to convert other person to one’s own religion but to transmit or spread one’s religion by an exposition of its tenets,” said the five-judge Supreme Court bench in Stainislaus (1977) verdict.
Further, emphasising that if one is given the right to convert the other, then the other’s freedom of religion is affected, the SC said, “What is freedom for one is freedom for the other in equal measure and there can, therefore, be no such thing as a fundamental right to convert any person to one’s own religion.”
In the Stainislaus (1977) verdict, the Supreme Court also held that regulating conversions on grounds of force or fraud falls into the public order exception to Article 25 (1) of the Constitution.
Since the Stainislaus (1977) judgement, two judicial developments have led to questions whether the 1977 judgement would stand scrutiny today. One, the development of the essential religious practice test. Two, the 2018 Justice K.S. Puttaswamy vs Union of India judgement over the right to privacy.
It is argued that as some religions, such as Christianity and Islam, consider proselytism essential to their faith, its exclusion from Article 25 violates their fundamental religious right. Secondly, it has been argued that laws regulating conversions in recent years have provisions that violate the right to privacy as persons converting at times require to notify authorities.
Moreover, Justice RF Nariman in 2021 observed during the hearing of a petition that “propagation” in Article 25 referred to conversion —proselytism— and that the Stainislaus (1977) judgement was not correct. However, it was just an oral observation and no order was issued. Supreme Court Advocate KV Muthu Kumar says an oral observation in the hearing of a petition cannot overrule a previous judgement.
He tells Outlook, “Oral observations don’t have an impact on jurisprudence. They do not make any precedent. It is only when an order or a judgement is passed in written form that a precedent is set. Otherwise, all observations are non-binding in other cases. Most often, oral observations are part of initial discussions when the bench is trying to understand the petition. They are prima facie comments and not authoritative opinions.”
Kumar further says that Puttaswamy (2018) judgement was a very general verdict and it would not overrule the very specific Stainislaus (1977) judgement.
Kumar adds that conversion is not explicitly private and therefore the question of violation of one’s privacy does not arise.
“When you convert from one religion to another, you notify it in your public records, as your new identity such as name and religious affiliation has to reflect in all of your records. Therefore, conversion is not exactly a private affair as a public notification accompanies it,” says Kumar.
The Stanislaus (1977) judgement is quite clear in establishing that the right to propagate religion does not mean the right to proselytise, and Article 25 itself provides the state enough scope to regulate conversion and other religious affairs, says Vinod Shankar Mishra, Professor, Faculty of Law, Banaras Hindu University (BHU).
Mishra says, “Article 25 is unique as it makes itself subordinate to other fundamental rights. Besides the three exceptions of public order, morality, and health, Article 25 is also subjected to ‘other provisions of this Part’, which means that whenever Article 25 conflicts with some other fundamental right, such as Article 19, that Article can supersede Article 25.”
Stressing that Article 25 is part of the broader state-religion relationship, Mishra says Indian secularism is unique in a way that it allows intervention for social welfare and reform.
“The Indian state can intervene for the social good, such as to make Hindu religious places accessible to all castes and classes. Moreover, Article 25 (2) allows the state to regulate or restrict any economic, financial, political, or other secular activity which may be associated with religious practice. Therefore, Article 25 allows the state enough scope to regulate religious affairs, including conversions,” says Mishra.
Moreover, no law regulates or prevents conversion itself, says Mishra, adding that it is the act of converting others that is regulated.
“There is no issue with voluntary conversion. If I convert voluntarily, that’s fine. The laws relate to conversion out of allurement, whether in cash or kind, or by persuasion or coercion. This means that if you want to convert me by promising me something or by pressuring me, that’s not allowed, but I can convert voluntarily out of free will,” says Mishra, adding that such grounds regulating conversions are legally valid under the public order exception.