Wednesday, January 23, 2008

A critical analysis of recent anti-conversion legislation: Focus on the SAHRDC

Before getting to the substance of this post, I want to join Vikram and V. Venkatesan in welcoming our new contributors. The success of this blog depends on regular contributors and commentators (and a healthy debate among them), and its great to see the heightened activity on the blog at the start of the new year. Let us hope that this trend continues. Though this continues to be a hectic time at work for me, I am inspired by the recent enthusiasm exhibited on the blog, and this post is the result. I hope other contributors (some of whom have remained silent for what seems like an eternity) will be similarly inspired.

An area that I follow closely in my own research is that of secularism, especially the evolving model of secularism in
India in the aftermath of the rise of the BJP as a national party, as exhibited in legal developments. In recent years, several states (especially those where the BJP is in power, but even those ruled by non-BJP parties) have experimented with laws on issues that have either a direct or incidental impact on religion. We have already seen how the anti-cow slaughter laws passed by BJP governments have resulted in a drastic revision of some basic elements of the Indian legal model of secularism (I refer here to the over-ruling of the Mohd. Qureshi case by a seven-judge Constitution Bench headed by Chief Justice Lahoti, which was briefly adverted to in this previous post).

One such trend is the recent enactment of anti-conversion laws by several states. As is somewhat typical in our country, much of what passes for legal discussion and debate remains focused on the output of the Supreme Court (a charge that most contributors to this blog, myself included, are equally guilty of). Fortunately, there are at least some organisations that focus on these legislative changes, which could have momentous consequences.

A recent issue of the EPW carries an excellent article by the South Asia Human Rights Documentation Centre (SAHRDC), which focuses on several such anti-conversion laws. The article lists out the germane provisions in a law that was recently passed by the legislative assembly in Himachal Pradesh, which in turn is similar to laws passed in Orissa, Gujarat, Chattisgarh, Madhya Pradesh, Rajasthan and Arunachal Pradesh. It then analyses these laws against the backdrop of applicable constitutional provisions (including an analysis of debates in the Constituent Assembly), Supreme Court precedents, and the relevant international law. The article concludes as follows:

It is clear that the anti-conversion legislations [sic], as they stand, pose serious challenges to both the intrinsic structure of Indian society and the international perception of the country’s legal system. It is difficult to escape the conclusion that these legislations [sic] are primarily motivated by a religious ideology and will detrimentally impact religious minorities. Should the courts acquiesce in this emasculation of tolerance and secularism amid an increasing number of such laws passed by different state governments, Indian democracy and its founding principles of equality and tolerance will be seriously weakened.

The issue in general, and the specific arguments raised by SAHRDC, deserve closer scrutiny and analysis.

The institutional author of the piece, SAHRDC, is an interesting NGO, with a long track record of publications on issues of human rights in the South Asian region. Though the website of SAHRDC is parsimonious in providing details about the organizational structure and people involved, it does provide links to publications that bear the promise of containing rich information on a wide variety of topics.

3 comments:

jyotsna said...

Thanks for raising a topical and complex issue.

In this context, you might find this article by Sankrant Sanu which has appeared on the Indic Studies Project (an effort started by Manushi), of interest
http://www.indicstudies.org/comments_reply.php?discussion_id=1&topic_id=12. Rather than just examine constitutional and international law, it goes behind the history as well as the social and cultural implications of the right to proselytise, especially in a milieu of competitive, exclusivist religions on the one hand, and religions which have a completely different ethos, on the other hand. There are systematic, very well funded and internationally organized proselytisation efforts underway in places like the Northeast, Orissa and Jharkhand, which have a two-pronged effort – to degrade the local beliefs and cultures, and to aggressively “harvest souls” and meet their targets. In the process, there is tremendous social and cultural conflict within these communities.

I do not suggest that we should ban conversions. However, I do believe that these are legitimate concerns and that any discussion on this issue cannot take place in a vacuum without looking at the socio-cultural implications of the proselytization efforts and many questionable means adopted by these religious multinationals. Like every right, the right to proselytize has limits and has to be balanced with the right to freedom of belief and right of other communities to preserve their religious and cultural traditions from sustained and misleading attack.

Dilip said...

This is an important issue and the article you mention raises important concerns. It makes out a good case that the definition of conversion in some of those bills (Rajasthan for example) as renouncing the religion of one’s ‘forefathers’ and the exclusion of so-called ‘reconversions’ from its purview raise significant issues of equal treatment and constitutionality. But I am not so sure about some of the other contentions of that piece.

It quotes a SC judgment that distinguishes between freedom to hold religious beliefs on the one hand which is squarely within the ambit of protection of Art. 25, and the freedom to manifest these beliefs on others which is subject to the enumerated restrictions on grounds of public order, morality and health. It also quotes K.M. Munshi saying that the right to propagate is inherent in the right to speech. Given that the wording of the restrictions in both Art. 19 and Art. 25 is also similar in that respect (i.e. public order, morality), it seems quite reasonable to argue that the nature of restrictions that are permissible in the context of regulating speech could also be permissible in the context of religion. The nearly 150-year old IPC (171c) and the 60-odd year old RPA (123(2)) both include a mention of the ‘threat of divine displeasure and social ex-communication’ as constituting undue influence during elections. If those are acceptable in the context of free speech, is a definition of force in an anti-conversion bill that uses the same words (and therefore not broader or more vague) an unreasonable restriction in the context of the right to propagate religion?

They quote from Commissioner v. Lakshmindra Swamiar where the Court stated that ‘what constitutes the essential part of a religion is primarily to be ascertained with reference to the doctrines of that religion itself’ – this, however, was stated with respect to rites and religious ceremonies and in the context of distinguishing a religious activity from a secular one in a religious establishment (under 25(2)(a)). Their lament that the court, in Stanislaus, did not address the question of whether proselytization is an essential element of the Christian faith does not make much sense as that is not pertinent to limitations on the ground of public order (under 25(1)) which is broader in scope. In the same opinion, the court also noted: “What article 25(2)(a) contemplates is not regulation by the State of religious practices as such, the freedom of which is guaranteed by the Constitution except when they run counter to public order, health and morality, but regulation of activities which are economic, commercial or political in their character though they are associated with religious practices.” Therefore, a related question would also have to be whether it is a political activity associated with religion.

Their other arguments are that there is a lack of hard evidence of conversions by force, allurement or fraud. The Hindutva proponents would probably point to the Niyogi Commission Report (which I have not read) to rebut the claim. The authors, quoting several opinions, point out that there is a distinction between ‘public order’ and ‘law and order’ marked not by nature of the disturbances but by their scale and extent. They imply that this may be a case of a problem of ‘law and order’ (with respect to Stanislaus, they state ‘Without examining or addressing the nuances of public order to demonstrate how it could be applied in the context of these laws, the Court appeared to trust that there was public disorder to such a degree that it justified a severe restraint on a constitutionally protected right’). Yet in another place, they point out that these legislations have come in the ‘operative context of rising violence against religious minorities’ (suggesting, contrary to their earlier assertion, that it is a public order issue) and that the bills ‘legitimize or even encourage antagonisms against minority religions’. It seems that they are being disingenuous in trying to have it both ways here.

Regarding the right to equality, religious freedom and equality do not necessarily go together (theocratic states are a good example). Treating proselytization as a fundamental right only for the Christian faith on account of its religious tenets whilst denying the same to other faiths would hardly amount to equal treatment ( In fairness, they are not insisting upon that but for all faiths to be allowed to proselytize. Yet, if restrictions are imposed, their view would only grant exceptions to that rule to some). As for their insistence that existing laws are sufficient, redundancy has not really been much of a factor in deciding upon new enactments in our country. The same argument was made for the Domestic Violence Act, POTA, etc.

Their argument that the national census does not show any impact of conversions is also readily challenged. Laws are often passed to prevent problems from arising and in other instances from growing in scope. For example, everyone recognizes terrorism as a major concern and several laws have been passed, yet there have only been a handful of spectacular attacks and the number of people killed across the country as a whole may only show up as a blip in the census. So, is it necessary to wait till census figures show a dip before the government should act? The concern and perception of its importance as well as a variety of other political calculations rather than census figures alone drive legislation. A different kind of instance would be the PNDT act which is widely seen to have failed - female feticide is a major concern as falling sex ratios are indicated in the census, yet there is scarcely any call even by NGOs for more drastic measures such as restricting abortions.

Anonymous said...

A reading of the arguments from the constituent assembly debates, as presented in the SAHRDC article itself, shows that the constitution framers did NOT want "right to propagate" to mean "right to convert". Member after member explained that "propagation" means conducting propaganda, exposition and illustration of religious tenets etc. Hence it defies logic that the article should jump to the exact opposite conclusion, when it claims in the context of Stanislaus, that the Supreme Court's "ruling that no right to convert could be claimed under Article 25 appears unduly restrictive". Poor logic.