Delhi High Court remark on conversion ‘right’ raises questions

A 1977 SC judgment says Article 25 does not bestow such a right

June 05, 2022 11:27 pm | Updated June 06, 2022 09:00 am IST - NEW DELHI

A view of Delhi High Court, in New Delhi on January 24, 2018

A view of Delhi High Court, in New Delhi on January 24, 2018 | Photo Credit: Sushil Kumar Verma

Recent observations by the Delhi High Court that religious conversion, unless forced, is not prohibited raise a question if proselytism is also protected under the right to religious freedom in the Constitution.

A few days ago, the High Court, hearing a petition by advocate Ashwini Upadhyay to frame laws to prohibit religious conversions by force or deception, observed that “first and foremost, conversion is not prohibited. It is a right of an individual to profess any religion, religion of his birth, or religion that he chooses to profess. That is the freedom our Constitution grants”.

Article 25(1) of the Constitution says that “subject to public order, morality and health... all persons are equally entitled to freedom of conscience and the right to freely profess, practise and propagate religion".

Though a person has a right to 'profess' or affirm his allegiance to a religion, does Article 25 extend the right to “propagate” one’s religion to converting another to one’s faith?

Mr. Upadhyay had reportedly alleged in the High Court that “mass conversions” of socially and economically underprivileged people, particularly those belonging to the Scheduled Castes and the Scheduled Tribes, were happening.

In its 1977 judgment, a five-judge Bench of the Supreme Court, in Rev. Stainislaus versus State of Madhya Pradesh, had held that the word ‘propagate’ in Article 25 does not give “the right to convert another person to one's own religion, but to transmit or spread one's religion by an exposition of its tenets”.

The Constitution Bench had also held there was “no fundamental right to convert another person to one's own religion”. Freedom of religion is not guaranteed in respect of one religion only, but covers all religions alike. “If a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the ‘freedom of conscience’ guaranteed to all the citizens of the country alike,” the 1977 judgment had reasoned.

Religious freedom can be “properly enjoyed” only if the people of one faith exercise their right in a manner commensurate with the identical freedom of persons following another religion.

“What is freedom for one is freedom for the other in equal measure. There can therefore be no such thing as a fundamental right to convert any person to one's own religion,” the Constitution Bench had held.

But Supreme Court advocate Kaleeswaram Raj said the 1977 judgment remains "incomplete".

"Even though the right to propagate religion does not include the right to convert, one's fundamental right under Article 25 to freely profess or practise religion will include the right to get converted. The Stainislaus judgment only dealt with the right to propagate or convert, and not the right to get converted. The Delhi High Court's view is more on the right to get converted. It is an area the Constitution Bench did not go deeper into," Mr. Raj said.

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