Conversion of religion: India (legal aspects)
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Conversion of religion: India
Constitutional position
Conversions: pay heed to our founders The Times of India
Dec 21 2014
Manoj Mitta
The Ghar Wapsi campaign flies in the face of the fundamental right to propagate one's religion as laid down by the founding fathers of the Constitution “Even under the present law, forcible conversion is an offence” Sardar Vallabhbhai Patel said so on April 22, 1947, as chairman of the “advisory committee on fundamental rights and minorities” to the Constituent Assembly. He was responding to a concern raised by Anglo-Indian representative Frank Anthony over how future legislatures might regard the issue of conversions.“You are leaving it to legislation,” Anthony said. “The legislature may say tomorrow that you have no right.” This exchange in the course of the advisory committee’s proceedings has acquired greater significance than ever before as the Narendra Modi government, which swears by Patel, called for anti-conversion laws across all the states and the Centre in the face of the Opposition’s indignation in Parliament over Ghar Wapsi in Agra. Far from seeking any safeguards in the Constitution against forcible conversions, Patel took the view that the existing law was sufficient to check such crimes. He was opposed to incorporating a clause recommended by a “sub-committee on minorities” appointed by the advisory committee. The clause laid down that conversion brought about by “coercion or undue influence shall not be recognised by law”. A majority in the sub-committee on minorities favoured it even after C Rajagopalachari had, according to the minutes, “questioned the necessity of this provision, when it was covered by the ordinary law of the land, eg the Indian Penal Code”.The clause was originally drafted by K M Munshi before a “sub-committee on fundamental rights”, which had also been appointed by the advisory committee.
Holding that it was “not a fundamental right”, Patel said on April 22, 1947 that the clause vetted by the two subcommittees was “unnecessary and may be deleted”.
The anti-conversion laws that have since been passed in half a dozen states — and are now sought to be extended to the rest of the country — are an amplification of the very clause that had been dismissed by Patel on more than one count. The clause did not make it to the Constitution despite the demand for it from leaders of both minority and majority communities. While Anthony maintained that the clause was “absolutely vital to the Christians”, Syama Prasad Mookerjee too said that the clause “should not be deleted”. Their reasons were different: Anthony saw the clause as an indirect recognition for voluntary conversions and Mookerjee regarded it as a check on the misuse of conversions. The clause had seen many twists and turns before it was eventually dropped from the draft of the Constitution.
To begin with, since a majority in the advisory committee leaned towards the clause, Patel could not help retaining it in the report he sent on April 23, 1947 to the president of the Constituent Assembly, Rajendra Prasad. But then, when it came up for discussion before the Constituent Assembly on May 1, 1947, Munshi moved an amendment adding two more grounds for derecognizing conversions: fraud and under-age. It triggered a debate all over again among Founding Fathers on conversions driven by extraneous considerations. Patel weighed in with the suggestion that the clause be referred back to the advisory committee. Once Prasad accepted his suggestion, Patel had his way this time in the advisory committee too. Ten days after Independence, Patel wrote to Prasad on behalf of the advisory committee saying, “It seems to us on further consideration that this clause enunciates a rather obvious doctrine which is unnecessary to include in the Constitution and we recommend that it be dropped altogether.” Though the clause citing grounds for de-recognition had been dropped accordingly, the Constituent Assembly witnessed a fresh debate on conversions on December 6, 1947. The bone of contention was whether the freedom of religion should extend to the right to “propagate” it as well. As it happened, this word had not figured in Munshi's original draft before the sub-committee on fundamental rights. It was inserted later at the instance of the sub-committee on minorities. According to the minutes of its April 17, 1947 meeting, “M Ruthnaswamy pointed out that certain religions, such as Christianity and Islam, were essentially proselytising religions and provision should be made to permit them to propagate their faith in accordance with their tenets.“ Recalling this “compromise with the minorities“ prompted by Ruthnaswamy's proposal, Munshi told the Constituent Assembly that “the word `propagate' should be maintained in this Article in order that the compromise so laudably achieved by the minorities committee should not be disturbed.“ In keeping with the freedom of speech endorsed by the same plenary body , Munshi said that it was anyway “open to any religious community to persuade other people to join their faith“. It was then that the Constituent Assembly , cementing the idea of a pluralist nation, rejected the amendments proposing the deletion of the word “propagate“.
The “compromise with the minorities“ seemed to have been however disturbed two decades later when Orissa, a state with a relatively high percentage of Dalit and tribal population, came up with an anti-conversion law. The Orissa Freedom of Religion Act 1967 pro hibited conversion “by the use of force or by inducement or by any fraudulent means“. Its definition of the word “inducement“ was controversial as it included “the grant of any benefit, either pecuniary or otherwise“. This meant that if a Dalit were to leave Hinduism purely to gain a sense of dignity , his conversion was liable to be questioned on the ground of inducement. Unsurprisingly , the “vague“ definition of “inducement“ was one of the reasons cited by the Orissa high court in 1972 for declaring the 1967 law as unconstitutional.
Two years later, the Madhya Pradesh high court however upheld a similar state law. Subsequently , the Supreme Court clubbed together the appeals against the two high court verdicts. In 1977, the apex court upheld both the anti-conversion laws.But it steered clear of addressing the reasoning of the Orissa high court in striking down the 1967 law. It also glossed over the Constituent Assembly debates. The import of “propagate“, it said, “is not the right to convert another person to one's own religion“. Reason: “if a person purposely undertakes the conversion ...that would impinge on the freedom of conscience guaranteed to all the citizens“. Given the increasingly aggressive campaign to reconvert Muslims and Christians to Hinduism, there is an urgent need to revisit the Supreme Court verdict as well as the state laws.
Anti conversion laws: History
From the archives of The Times of India 2006
Faith fracas The Times of India 28/05/2006
2006: Pope Benedict XVI
"Anti-conversion laws are unconstitutional and contrary to the highest ideals of India's founding fathers." Pope Benedict XVI chose his words carefully when he famously pulled up India's envoy to Vatican on May 18.
Much as it might have sounded like a platitude, the pope's statement was actually drawing attention to a little-known constitutional compromise made by the Supreme Court of India on the issue of religious conversions.
The Rev Stanislaus case
The pope may be technically wrong in calling anti-conversion laws "unconstitutional". After all, way back in 1977, a five-judge bench of the Supreme Court did uphold the constitutionality of the first two anti-conversion laws, which had been enacted in Orissa and Madhya Pradesh.
It was on account of that judgment in the Rev Stanislaus case that five more states enacted anti-conversion laws - though the latest one in Rajasthan has been returned by governor Pratibha Patil for reconsideration.
But the pope can't be faulted for alleging all the same that anti-conversion laws were "contrary to the highest ideals of India's founding fathers".
Debates in India's Constituent Assembly
This is because, contrary to the SC verdict in the Rev Stanislaus case, the Constituent Assembly saw the right to convert others to one's own religion as a logical extension of two fundamental rights: the right to 'propagate' religion (Article 25) and the larger freedom of speech and expression (Article 19).
The intention of the founding fathers is evident from the extensive debates they had before incorporating the term 'propagate' in Article 25. In fact, the initial draft of the provision related to freedom of religion was silent on the issue of conversions It was only after deliberations in forums such as Fundamental Rights Sub-Committee, Minorities Sub-Committee and the Advisory Committee that the Drafting Committee headed by B R Ambedkar deemed it fit to incorporate propagation as a part of the right to religion.
Given the fact that the nation in 1949 was still recovering from the trauma of a partition effected on religious grounds, some of the members of the Constituent Assembly vehemently opposed the idea of introducing any right to propagate religion.
They contended that a person should be entitled only to profess and practice religion, not to propagate it.
Those apprehensions about conversions were countered by, ironically enough, a right-wing member of the Drafting Committee, K M Munshi, who is to date revered by the Hindutva brigade for his initiative in restoring the Somnath temple.
In an authoritative pronouncement, Munshi explained that the word 'propagate' was inserted specifically at the instance of Christians, who he said "laid the greatest emphasis" on it "not because they wanted to convert people aggressively" but because it was "a fundamental part of their tenet".
Alternatively, Munshi said: "Even if the word were not there, I am sure, under the freedom of speech which the Constitution guarantees, it will be open to any religious community to persuade other people to join their faith."
Munshi went on to exhort the Constituent Assembly that whether it voted in favour of propagation or not, "conversion by free exercise of the conscience has to be recognised". In the event, the House retained the word "propagate" in Article 25, implying thereby that one has a fundamental right to convert others to one's own religion.
Supreme Court's interpretation of Article 25
But when the Supreme Court set out to interpret Article 25 in the Rev Stanislaus case, it departed from the tradition of looking up Constituent Assembly debates.
In a flagrant omission, the judgment delivered by then chief justice of India A N Ray made no reference whatsoever to the discussion in the Constituent Assembly on Article 25.
Instead, the bench took recourse to dictionaries and concluded that the word 'propagate' meant not a right to convert "but to transmit or spread one's religion by an exposition of its tenets".
Reason: "If a person purposely undertakes the conversion of another person to his religion, as distinguished from his efforts to transmit or spread the tenets of his religion, that would impinge on the freedom of conscience guaranteed to all citizens of the country alike."
In other words, anybody engaged in conversion is automatically liable to be punished. The police do not have to take the trouble of proving that conversion was based on extraneous factors such as force, allurement, inducement and fraud.
Thus, the anti-conversion laws became even more draconian after going through the hands of the Supreme Court. Whatever the validity of its verdict, the Supreme Court should have displayed the rigour of taking into account the contrary view of the founding fathers.
Its judgment would have commanded greater credibility if it had deigned to acknowledge and explain why it disagreed with the founding fathers on such a sensitive issue. It's a pity that this monumental failure of the Supreme Court has remained unnoticed even after the pope pointed out that anti-conversion laws were "contrary to the highest ideals of India's founding fathers".
In the pseudo nationalist outrage that followed his statement, the government told Parliament that Vatican had been told in "no uncertain terms" of India's displeasure.
A history of conversion
The Times of India, December 21, 2014 Ronojoy Sen
What drove early Indians to embrace Islam, Christianity: Fear or political rule
Hindu right-wing organizations may have backed down on mass conversion programmes on Christmas Day , but the debate about conversions is not going to go away in a hurry . It is commonly held that Islam and Christianity , the religions of the rulers across India for several centuries, were pushed down the throat of Hindus and tribals.
Historian Richard Eaton has, however, highlighted some of the fallacies, particularly with regard to Islam. The “geography of conversions” in the Indian subcontinent, according to him, reveals an inverse relationship between the degree of Muslim political penetration and the degree of conversion to Islam. So the heaviest conversions occurred in Punjab and Bengal, which were on the fringes of the Indo-Muslim empires, and much less in the north Indian heartland. Eaton argues that three dominant theories — conversion by sword, for political and instrumental reasons and mass lower caste conversions — don’t stack up. Instead, he says, conversion was a gradual process whereby “preliterate peoples on the ecological and political frontier of an expanding agrarian society became absorbed into the religious ideology of that society”.
As with conversions to Islam, the story with Christianity is hardly straightforward. It is often forgotten that Christianity and missionary conversions existed in India long before the British came. Their origins in India go back to the first century of the Common Era. However, the public discourse on conversion in independent India has been influenced by the acrimonious debate on conversion during the colonial period.
Though Christian missionaries pressed the colonial state for an unfettered right to propagate their religion, missionaries were allowed to function only from 1813 and with restrictions till 1833. Following the 1857 uprising, the colonial state decided to follow a policy of religious neutrality as spelled out in Queen Victoria’s proclamation in 1858. However, converts to Christianity could avail of the benefits of the laws of marriage and succession enacted by the British. The legislation that was perhaps the most controversial and raised fears of large-scale conversions among certain Hindus was the Caste Disabilities Removal Act, 1850 which said that the right of inheritance would not be affected by renouncing a particular religion or loss of caste status.
The ghar wapsi or reconversion programmes, being organized by various Hindu outfits, is not a new phenomenon and can be traced back to the “shuddhi” (purification) movements begun by the Arya Samaj in the late 19th century. Though initially the Samaj targeted reconversion from Islam and Christianity, under Swami Shraddhananda the aim shifted to upgrading the status of untouchables within Hinduism.
Mahatma Gandhi too had a dim view on conversion and his debates with Christian missionaries are well known. He had stated in an article in Young India in 1931: “India stands in no need of conversions from one faith to another.” But it would be a mistake to club Gandhi with the Hindu nationalists on the matter of conversion. Rudolf Heredia, author of Changing Gods: Rethinking Conversion in India, says Gandhi was “all for an atmaparivartan, a change of heart, but not for a dharmantar, a change of religious tradition. He was a reformer, not a proselytizer”.
Conversion is often seen as a struggle for the souls and destinies of India’s poorest citizens.
The short shrift that the Supreme Court gave to the right to propagate religion in the 1977 Stanislaus judgment, enshrined in the Constitution, reflects this instrumental view of conversion. However, in many ways conversion is central to India's constitutional experiment with secularism. It is an irony that BR Ambedkar, whose antipathy towards religion and rituals is well known, registered his disaffection with the Indian state by converting to Buddhism in 1956.
As on many things Gandhi disagreed with Ambedkar and said in response to Ambedkar's decision to convert, “Religion is not like a house or a cloak which can be changed at will.“
However, in spite of his aversion to proselytizing Gandhi later said in 1940: “No legal hindrance can be put in the way of any Christian or of anybody preaching for the acceptance of his doctrine.“ This is something that most Hindu outfits, the anti-conversion Acts passed by various Indian states and the 1977 SC judgment have ignored.
Reconversion to Hinduism and the law: India
Reconversion is conditional
Jan 04 2015
Jaya Menon
In 1981, around 600 dalits of Meenakshipuram in southern Tamil Nadu decided to convert en masse to Islam. Today their families live in harmony with their Hindu clansmen, at home both in temple and masjid Seventy-year-old S Kalimuthu's daughter Khaleema Bheevi is a Muslim. Kali muthu himself had organised her marriage with his brother's son, a neo-Muslim convert. The families meet often for weddings and functions, including the local Durga temple festival. s Umer Kaiyum, a 79-year-old retired Tamil pandit who converted to escape caste hatred, still maintains close ties with his father's brother, M Subramanian and brother, M Subramanian and his family .
These ties make Meenakshipuram a different conversion story. While some members of a family converted to Islam, many remained Hindus. But the village, which changed its name to Rehmat Nagar along with the mass conversions, remains a peaceful, communally integrated hamlet.
The harsh mid-day sun throws deep shadows on the lush mountain ranges of the Western Ghats. In narrow lanes, gaudily painted houses and dilapidated old homes alternate with tiny brick-andconcrete hovels. The overnight rain has left the path night rain has left the pathways slushy . In the heart of the hamlet, once known as Meenakshipuram, there is chatter and laughter under the white dome of the mas jid. At 1pm, silence falls for the `thozhugai' (afternoon prayers).
Islam is serious religion in this hamlet in Tirunelveli district in south Tamil Nadu. It is barely three decades since the headline-grab bing mass conversions took place here. But, it was nothing like the Sangh Parivar's controversial Ghar Wapsi programme in Uttar Pradesh last month. On February 20, the day after the symbolic conversion, 300 dalit fami lies -about 500 to 600 people -gathered in the village square and amid hushed silence and much trepidation, tonsured their heads and repeated the Shahada (Testimony of faith). They were formally initiated into Islam by the Ishadul Islam Sabha of South India, which had its offices in Tirunelveli.
“It was a yearning for dignity . We sought Islam to escape caste hatred and the atrocities inflicted on us by the Thevars (a most backward community , but higher in the caste hier archy than dalits),“ recalls Umer Kaiyum, who was once A Mookkan. A retired primary school teacher, he lives behind a small stone mound in the hamlet, with his three sons and their families. “I was a Tamil pundit. But, I was mocked for my name and forced to change it to Umadevan,“ says Kaiyum.
Horror stories of caste discrimination have been passed down over generations. “If any Thevar was murdered, the dalits were tied up and beaten black and blue,“ says Mohammed Saleem, 40. Only two buses plied in the village those days. One travelled to and from Kerala, ferrying workers. There was also a Tamil Nadu bus. “We may have been bathed and better dressed than them (Thevars), but we were never allowed to sit on the seats of the Tamil Nadu bus,“ says Saleem, recalling his childhood. The dalits had to sit on the bus floor or travel standing all the way .
There is a little known story of Mohammed Yusuf, the man who inspired the Meenakshipuram dalits to take the final step towards embracing Islam. In 1975, Yusuf, then T Thangaraj, fell in love with a Thevar woman, Sivanatha. It was a reckless and dangerous thing to do those days but he decided to elope with her. Six years before the rest of the village followed his lead, 31-year-old Thangaraj took his bride to Tirunelveli and converted to Islam.They took the names Yusuf and Sulehal Bheevi. Thangaraj's audacity shook the whole village.
“But, even today , we share a good rapport with my uncles (mother's brothers) Mariappan, Ayyappan and Sivapandui,“ says Mohammed Abu Haliba, 36, Yusuf 's son, who lives in Mekkarai village, 5km from Rehmat Nagar.Many of Meenakshipuram's neo converts own agricultural land in Mekkarai, a picturesque hamlet on the ghat foothills. Here, the Muslim converts grow paddy and tapioca and also rear cattle and poultry .
The Meenakshipuram conversions occurred during the AIADMK regime headed by MG Ramachandran, and it became a landmark event for the sheer numbers involved. The reason why it attracted so many dalits was a Thevar's murder that led to widespread brutal police action against the community , say locals.It provoked even those who were undecided on converting.
The conversions triggered a virtual political stampede in the village. Many national leaders descended on it; BJP leaders Atal Bihari Vajpayee, LK Advani and a host of Sangh Parivar leaders visited the village to investigate the reasons behind the conversion. The ruling Indira Gandhi government despatched its minister of state for home, Yogendra Makwana, to Meenakshipuram and MGR constituted the Justice Venugopal commission of inquiry .
The director of scheduled castescheduled tribe welfare of the Union government submitted a report of the findings that ruled out forceful conversions. The Arya Samaj built a school in the village. While the school continues to enroll students even today , the dilapidated building showcases a failed bid to get Muslims to return to Hinduism.
“An old dalit I met in Meenakshipuram told me how he once had to vacate his seat in a village bus for a 10-year-old Thevar boy , addressing him respectfully . But after he converted to Islam, he didn't have to do that and he is addressed respectfully as `bhai',“ says A Sivasubramanian, a Tamil teacher and writer of folklore based in Tuticorin. A chapter in his book `Pillaiyar Arasiyal' (politicizing the deity Vinayaka) is devoted to the Meenakshipuram conversions. “They may not have seen great economic change in their lives because they lost the right to reservation in education and jobs but, they are happy with their new social status and cultural freedom,“ says Sivasubramanian.
As the sun sets over Mekkarai, Sardar Mohammed, 70, sits proud in his stone and concrete home. He built it about two decades ago. As a dalit, he was permitted only to build a thatched hut.
In Rehmat Nagar, the dusk brings calls for evening prayers at the `pallivasal' (masjid), which was built soon after the mass conversion. Karuppiah Madasamy, 66, the local naataamai (village head) and leader of a local Hindu outfit, walks into the masjid and settles down on a bench to wait for his grandsons.They are all Muslims.
