The Hindu : Ordinance based on ineffectual laws

Online edition of India's National Newspaper
Thursday, Oct 10, 2002

Opinion

Opinion - News Analysis

Ordinance based on ineffectual laws

By Mukund Padmanabhan

The legislative parents of the Tamil Nadu ordinance on religious conversions are two very similar, in fact virtually identical, legislation passed by Orissa and Madhya Pradesh more than three decades ago. It was the Orissa Freedom of Religion Act 1967, which first introduced the idea of penal provisions for those who convert or attempt to convert another by use of force, fraud or allurement/inducement. Madhya Pradesh followed a year later with its Dharma Swatantra Adhinayam or Religious Freedom Act, which also required that conversions be registered with a district magistrate.

Both acts were challenged in their respective High Courts, which took diametrical views. The Orissa High Court held that the law went against the grain of Article 25, which gives all Indians the freedom to profess, practise and propagate religion. However, the Madhya Pradesh High Court upheld the validity of the State's law.

The latter judgment was challenged in the Supreme Court and its 1977 ruling in the Stanislaus vs. State of Madhya Pradesh still remains the law of the land. Briefly, the court held that the right to propagate one's religion (by advocacy or preaching) does not include the right to convert another. Indians are free by virtue of Article 25 to choose to adopt any religion of their choice; conversion through force, fraud or allurement robs this very freedom to choose.

Representatives of the Christian community have had reservations about Justice A.N. Ray's judgment in this case. More importantly perhaps, so have some eminent jurists such as H.M. Seervai, who thought that Justice Ray had overstated the case in presuming that deliberate attempts at conversion interfere with the freedom of conscience guaranteed by Article 25. However, other experts such as Durga Das Basu have argued that the State is constitutionally enjoined to maintaining public order and that the Orissa and Madhya Pradesh legislation are directed at preventing the breach of public peace which would follow if conversion by force, fraud or inducement/allurement were allowed to pass unhindered.

Following the Supreme Court verdict in the Stanislaus case, Arunachal Pradesh also passed an identical law on conversions. Pre-Independence, some princely States had promulgated anti-conversion laws, but attempts after 1947 to introduce a Central law for the whole nation were foiled.

Jawaharlal Nehru is credited with intervening to abort a Bill moved by a Congress MP seeking the registration of conversions. Another private member Bill was moved in the late 70s, but rejected after Morarji Desai developed second thoughts following protests by the Christian community. Last year, the introduction of a Bill against forcible conversions by the Shiv Sena MP, Anant Gangaram Geete, (now Union Minister for Power) was met with protests from the Opposition. As long at the judgment in the Stanislaus case stands, the Tamil Nadu ordinance, which is a clone of the laws enacted in Orissa and Madhya Pradesh, is insured against the charge that it is unconstitutional. But the question remains: what purpose does it serve?

Notwithstanding a claim to this effect in the explanatory statement of the Tamil Nadu ordinance, it is questionable that coercive of fraudulent conversions are prevalent in the State. But even if one were for the sake or argument to assume that they are, the question is whether legislation such as this would address this problem.

The answer is no. Part of the problem is that it is extremely difficult to distinguish between `legitimate' and `illegitimate' conversions in a legally sustainable way. On the other hand, the broad definitions of terms such as allurement (which includes any temptation in the form of a gift, gratification, grant of any material benefit in cash or kind) could be used as a weapon of harassment.

The Orissa and Madhya Pradesh anti-conversion laws have been in existence for more than 30 years, but there have been hardly any successful prosecutions under them. It is unlikely it will be any different in Tamil Nadu.

This leads naturally to the question: why is an ineffectual law that has got the backs of the minorities up being pushed through as an ordinance? Only Ms. Jayalalithaa knows the answer.

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