CHAPTER I

1.0 INTRODUCTION
TITLE OF THE PROJECT :
A-STUDY OF RAPPORT OF-ANTI-CONVERSION-LAWS-WITH
RIGHT-TO-FREEDOM

In India, like most other traditional societies, Religion has been the foundation of the
society and whole of its machinery throughout all ages in the process of her transition to a
democratic nation. It is pointed out that in India “If life can be likened to a pie, religion is
not one piece of that pie alongside the pieces labeled politics, economics, social structure,
education and law. Rather, religion is the fruit found in each and every piece of the pie.” 1
This religious India not only is a place of birth of many religions but also provided shelter
for various other religions that came from different parts of the world. All these religions
and their followers, hand in hand, had a major role in building the modern secular India
where an individual, as per the constitutional guarantee, is free to profess, practice and
propagate religion subject to public order, morality and health 2. This right, under our
constitutional scheme, may also be restricted for eliminating untouchabilty, and to bring
about social welfare and reform. These restriction imposed on freedom of conscience and
its associated rights not only manifest the conflict of interest that may arise in the
exercise of freedom of religion in plural India but also clearly shows the concern of the
founding fathers of our Constitution to maintain total harmony so that all the religions
can exist side by side without hampering the peace and progress of society and the nation.
Thus, while equality of religion and religious freedom are manifested in our Constitution,
the latter has been expressly made subject to the larger interest of the society.
However, despite the fact that the Constitution of India has been built on such secular
edifice, it appears that the spirit of secularism could not displace the importance of
religion the people of India give in their lives. ‘Religion’ has still been a volatile subject
in our secular country. The aggressive measures adopted by certain religious groups for
proselytization of their faith have thrown up challenges to our polity. The issue of

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conversion from one religion to another – one of the major controversies associated with

freedom of religion, leads to conflict of interest of inter religious groups and followers
thereof.
The Constitution of India has guaranteed freedom of religion to all, not just to followers
of any particular faith. ‘Freedom of conscience’ envisages freedom of an individual
either to follow any particular faith or to follow none, as he desires. ‘Freedom to
propagate’, on the other hand, envisages liberty, within limits, to transmit or spread one’s
religion by exposition of its tenets or his own ideas and convictions. Unless, they are
understood in the right perspective and construed accordingly, it is difficult to maintain
harmony between the two. It is more so when followers of any faith claim to have
freedom to convert another to their own faith in whatsoever manner, as a concomitant
right of freedom of propagation. Such a situation warrants the interference of the State to
regulate the exercise of such freedoms in the larger interest of the society. And, such an
interference of the State has been contemplated under our constitutional scheme by
expressly subjecting those freedoms to the larger interest of the society.
Thus, acting under the scheme of our Constitution, many states have enacted laws to
regulate conversion from one religion to another and to prohibit conversion through
means reprehensible to the conscience of the community in order to preserve public order
and to protect the larger interest of society. It appears some of them have gone to the
extent of extinguishing the freedom of religion in their enthusiasm to insulate ‘indigenous
religions’. Thus, the present study has been undertaken to examine whether the
provisions of these legislations are in consonance with the freedom of religion as
envisaged under Article 25 and other relevant provisions of the Constitution or whether
they have in fact extinguished right to freedom of religion.
What is looked into, in this study, is the constitutionality of these Acts in general as well
as provisions in all the legislations in particular.

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 CHAPTER II

CONSTITUTIONAL FRAMEWORK OF RIGHT

TO FREEDOM OF RELIGION IN INDIA

The founding fathers of the Constitution gave unto themselves, ‘we the people of India’,
the fundamental rights and directive principles of state policy to establish an egalitarian
social order for all sections of the society in the supreme law of the land itself 3. The
principle of ‘equality of religion’, being an essential facet of egalitarianism, has, thus,
found a place in the Constitution of India. Religious tolerance and equal treatment of all
religious groups are essential parts of secularism. Indian Constitution has been built, inter
alia, on such secular edifice. Though the term ‘secularism’ has not found expression in
the original Constitution as adopted in 19504, the principles of secularism were embedded
in various parts of our Constitution, in particular, the preamble, fundamental rights and
directive principles of state policy. More particularly Articles 25, 26, 27 and 28 provide
guarantee to various facets of right to freedom of religion with inbuilt restrictions and
limitations thereof.

1. Scope and Ambit of Right to Freedom of Religion:

The Constitution of India is an embodiment of both passive as well as positive contents
of secularism. It is passive in the sense that state neutrality in matters of religion is
envisaged in the Constitution. India being a secular state, there is no state or preferred
religion as such. An element of religious tolerance is implicit in it. At the same time,
India is not an irreligious state. It equally treats all religious groups, provides protection,
freedom to practice, profess and propagate religion and to manage religious affairs, etc.,
which are positive dimensions of secularism, so that every religion can flourish freely
without impediments. These secular credentials of the Indian Constitution are explicit,
mainly, in Articles 25, 26, 27 and 28 of the Constitution. For the purpose of convenience,
the scope and ambit of these provisions can be discussed under different headings.
Freedom of Conscience and free profession, practice and propagation of religion:

Article 25 of the Constitution of India deals with these core concepts of freedom of
religion. It is the most basic of various other concomitant rights of religious freedom. It
reads:
25. (1) 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.

(2) Nothing in this article shall affect the operation of any existing law or prevent
the state from making any law –

(a) Regulating or restricting any economic, financial, political or other secular

activity which may be associated with religious practices;
(b) Providing for social welfare and reform or the throwing open of Hindu
religious institutions of a public character to all classes and sections of
Hindus.

Explanation: I. The wearing and carrying of kirpans shall be deemed to be included

in the profession of the Sikh religion.
Explanation: II. In sub-clause (b) of Clause (2), the reference to Hindus shall be
construed as including a reference to persons professing the Sikh, Jaina or Buddhist
religion, and the reference to Hindu religious institutions shall be construed
accordingly.
Article 25 of the Constitution guarantees the right to every person, whether citizen or
non-citizen, freedom of conscience and right to freely profess, practice and propagate
religion. However, the Constitution has not granted these freedoms in absolute terms.
They are made subject to: (i) Public order, morality and health; (ii) Other provisions of
Part III i.e., other fundamental rights (iii) any law, whether existing or future, providing
for regulation or restrictions of an economic, financial, political or other secular activity
which may be associated with religious practice, and (iv) any law, whether existing or
future, providing for social welfare and reform.
It was after deep thought and great deliberations, in the Constituent Assembly, that
freedom of conscience and right freely to profess, practice and propagate religion has
been guaranteed in India subject, of course, to the limitations defined in the Constitution
itself. It is pertinent to note, as it is evident from the debate in the Constituent Assembly,
that the phrase ‘freedom of conscience’ and ‘right freely to profess and practice religion’
got incorporated into the Constitution without much controversy. The incorporation of
the word ‘propagate’5 was the subject matter of great controversy over which, more or
less, the entire debate on the article was centered on. Mr. Tajamul Hussain, for instance,
opposed the very idea of guaranteeing the ‘right to propagate religion’. While agreeing
that the people should have the right to freely profess and practice religion, he
vehemently argued that religion is a private affair between oneself and his Creator. It has
nothing to do with others. One should honestly profess and practice religion at home
without demonstrating it for the sake of propagation. Propagation of religion, according
to him, would become a nuisance to others. Thus, he moved an amendment for the
deletion of the word ‘propagate’ from the draft constitution 6. The same view was
endorsed by Mr. Lokanath Mishra, albeit, for different reasons. He too had drastically
opposed the idea of according the status of fundamental right to propagate religion and
thereby encouraging the same7. However, many other members8, per contra, have
opposed the amendment suggesting deletion of the word ‘propagate’ from the draft
constitution. A common point made by some of them was that the right to propagate
religion, as formulated in the article, was not absolute; it was circumscribed by certain
conditions that the state would be free to impose in the interests of public order, morality
and health. It had also been laid down that the exercise of the right should not conflict
with the other provisions relating to fundamental rights. In particular, the article did not
give an unlimited right of conversion, for if any attempts were made to secure mass
conversions through undue influence either by money or through pressure, the state
hadthe right to regulate such activity. In view of the safeguards, the inclusion of the word
“propagate” could not possibly have any “dangerous implications”, especially since
under the secular set-up envisaged in the Constitution there would be no particular
advantage to a member of one community over another, nor would there be “any political
advantage by increasing one’s fold”. T.T. Krishnamachari stressed the point that the right
was not given to any particular community and could be exercised by everyone so long as

5
the conditions laid down were respected. K. Santhanam and K.M. Munshi asserted that
even if the word “propagate” was not included in draft article 19, under the right to
freedom of speech and expression guaranteed by draft article 13, it would still be open to
a religious community to persuade other people to join its faith 9. Further, K.M. Munshi
finally submitted that the compromise achieved by the Minority Committee, which led to
the insertion of the expression ‘propagate’ should not be disturbed and the harmony and
confidence should always be maintained. Thus, the expression ‘propagate’ was retained
in the draft article 19, which was approved by the Constituent Assembly on 6 th December
1948. The said article was later renumbered as Article 25 in the Constitution.
For the better understanding of the scope and ambit of Article 25, the religious freedom
guaranteed therein may conveniently be divided into two: (i) Right to freedom of
conscience; (ii) Right freely to profess, practice and propagate religion. However,
limitations on the said freedoms are discussed under a different heading altogether.
(i) Right to Freedom of Conscience: Freedom of Conscience envisages a freedom of an
individual to hold or consider a fact, viewpoint, or thought regardless of anyone else’s
view. To deny a person’s freedom of thought is to deny what can be considered one’s
most basic freedom – to think for one’s self. Since the whole concept of ‘freedom of
conscience or thought’ rests on the freedom of the individual to believe whatever one
thinks is best (freedom of belief), the notion of freedom of religion is closely related
and inextricably bound up with these10. The freedom of conscience guaranteed under

Article 25 intended to prevent any degree of compulsion in matter of belief. Everyone

is entitled to believe or not to believe a particular tenet or to follow or not to follow a
particular practice in matters of religion. No one can, therefore, be compelled, against
his own judgement and belief to hold any particular creed or follow a set of religious
practices. The Constitution has left every person free in the matter of his relation to
his Creator, if he believes in one. It is, thus, clear that a person is left completely free
to worship God according to the dictates of his conscience, and that his right to
worship as he pleased is unfettered so long as it does not come into conflict with any
restraints, imposed by the State in the interest of Public order, etc., A person is not
liable to answer for the verity of his religious views, and he cannot be questioned as
to his religious beliefs, by the State or by any other person 11. It is, however, not
implied that liberty of conscience is reckless freedom from moral obligation, but is it

6
 rather that responsibility of a free spirit, which alone can recognize and meet a moral
obligation12. Our Constitution therefore guarantees that all persons are equally entitled
to freedom of conscience, but this right is subject to public order, morality and to the
other provisions contained in Part III.

(ii) Right freely to profess, practice and propagate religion: Religion is a matter of faith with
individuals or communities and it is not necessarily theistic. There are well known
religions in India like Buddhism and Jainism, which do not believe in God or in any
Intelligent First Cause. A religion undoubtedly has its basis in a system of beliefs or
doctrines which are regarded by those who profess that religion as conducive to their
spiritual well being, but it will not be correct to say that religion is nothing else but a
doctrine or belief. A religion may not only lay down a code of ethical rules for its
followers to accept, it might prescribe rituals and observances, ceremonies and modes of
worship which are regarded as integral parts of religion, and these forms and observances
might extend even to matters of food and dress. Thus, the guarantee under the
Constitution of India not only protects the freedom of religious opinion but it protects
also acts done in pursuance of a religious belief .

(iii)The apex court, while dealing with the scope of Article 25, in Ratilal Panachand Gandhi v.
State of Bombay14, has reiterated the wide amplitude of the provision and observed:
“…Subject to the restrictions which this Article imposes, every person has a fundamental
right under our Constitution not merely to entertain such religious belief as may be
approved of by his judgement or conscience but to exhibit his belief and ideas in such
overt acts as are enjoined or sanctioned by his religion and further to propagate his
religious views for the edification of others”.
Thus, the Constitutional guarantee of freedom of religion in India is very wide, though
not absolute. It includes freedom to profess – i.e., to acknowledge publicly and to follow
a particular faith; to practice – i.e., to act according to the belief and customs of religion
including performances of ceremonies, rituals and observances which are regarded as
integral parts of religion15; and to propagate – i.e., to transmit or spread one’s religion by
exposition of its tenets. What is guaranteed by Article 25 is right to entertain, exhibit and
propagate and disseminate a religious belief based on the person’s judgement and

7
conscience. But whether a person propagates his personal views or the tenets of the
religious institution or whether propagation takes place in a temple or in any other
meeting is immaterial for the purpose of Article 25 16. The term ‘propagate’ has, however,
been the subject matter of controversy as to whether it includes right to convert a person
to one’s own religion. The apex court, in Digyadarsan v. State of A.P., answered the issue
negatively by holding that the right to propagate one’s religion means the right to
communicate a person’s beliefs to another person or to expose the tenets of that faith, but
would not include the right to ‘convert’ another person to the former’s faith. In Rev.
Stainislaus v. State of Madhya Pradesh18, relying on dictionaries, the court has reiterated
that: “what the Article grants is not 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”.
Thus, the religious freedom is confined to religious belief, which binds spiritual nature of
men to super-natural being. It includes worship, belief, faith, devotion, etc. and extends
to rituals. Religious right is the right of a person believing in a particular faith to practice
it, preach it and profess it.
Other Facets of Freedom of Religion:

As mentioned above, the Constitutional guarantee of freedom of religion is not just

confined to freedom of conscience and to freely profess, practice and propagate religion,
it is very wider. Every religious denominations or any section thereof have been given
the right (a) to establish and maintain institutions for religious and charitable purposes;
(b) to manage its own affairs in matters of religion; (c) to own and acquire movable and
immovable property; and (d) to administer such property in accordance with law. These
rights are subject to public order, morality and health 21. Further, Article 27 provides
immunity from payment of taxes, the proceeds of which are specifically appropriated in
payment of expenses for the promotion or maintenance of any particular religion or
religious denomination. These provisions, however, do not require elucidation in the
context.
The restriction on providing religious instructions and freedom as to attendance at
religious instruction or religious worship in certain educational institutions, envisaged
under Article 28, appears to be pertinent to the context in view of the fact that it imposes
constructive restriction on ‘propagation of religious belief or tenets’ in educational

8
institutions. It is the constitutional imperative that no religious instructions 22 shall be
provided in any educational institution wholly maintained out of State funds 23. Further,
Clause (3) of Article 28 confers freedom as to attendance at religious instruction or
religious worship in certain educational institutions. It clearly mandates that no person
attending any educational institution recognized by the State or receiving aid out of the
State funds shall be required to take part in any religious instruction that may be imparted
in such institution or to attend any religious worship that may be conducted in such
institution or in any premises attached thereto unless such person or, if such person is a
minor, his guardian has given his consent thereto.

The rationale for imposing such a blanket ban on providing religious instructions in
educational institutions wholly maintained out of the state fund is probably that India
being a secular country, utilization of public revenue for the purpose of imparting
religious instructions, which may result in conversion from one religion to another would
not be in consonance with its secular credentials. This is to ensure the religious neutrality
of public institutions wholly maintained out of the public revenue. Similarly, the
rationale for Clause (3), which confers freedom as to attendance at religious instruction or
religious worship in educational institutions recognized by the State or receiving aid out
of State funds, is that in such institutions, there is every likelihood of exercising undue
influence to convert pupils from one religious faith to another. Further, any exercise of
compulsion or undue influence would result in infringement of ‘freedom of conscience’ –
the very essence of religious freedom. Unlike Clause (1), Clause (3) does not impose a
blanket ban on providing religious instructions; it confers only freedom as to attendance
at religious instruction or religious worship. In other words, there is no prohibition on
imparting religious beliefs or tenets or conducting rituals or ceremonies in institutions
recognized by the State or receiving aid out of the State funds, but such institutions shall
not compel pupils to be part of it. Students can attend such instructions or rituals or
ceremonies out of their own will or, at the instance of their guardians in case of minors.

9
2. Limitations on the Freedom:
No rights in an organized society can be absolute. So the freedom of religion guaranteed,
under the Indian Constitution, is. ‘Freedom of conscience and right freely to profess,
practice and propagate religion’ has been expressly made subject to: (i) Public order,
morality and health; (ii) Other fundamental rights (iii) any law, whether existing or
future, providing for regulation or restrictions of an economic, financial, political or other
secular activity which may be associated with religious practice, and (iv) any law,
whether existing or future, providing for social welfare and reform. Some of these
limitations require more elaboration in the context.
Public Order, Morality and Health:
Both individual freedom, under article 25, and the freedom of religious denominations,
under article 26, has been expressly made subject to public order, morality and health in
the Indian Constitution. The expression “public order” is of wide connotation signifying a
state of tranquility prevailing among the members of a political society as a result of the

internal regulations enforced by the government instituted by them. It can be postulated

that ‘public order’ is synonymous with public peace, safety and tranquility 25. It is the first
and the most fundamental duty of every Government to preserve order, since order is the
condition precedent to all civilization and advance human happiness. Having realized that
it is in the interest of liberty itself, that it should be restricted, the framers of the
Constitution have subordinated religious freedom to public order. Thus, the freedom of
conscience and right freely to profess, practice and propagate religion, and freedom to
manage religious affairs can be curtailed either in the interest or for the maintenance of
public order. Therefore, it cannot be predicated that freedom of religion can have no
bearing whatever on the maintenance of public order or that a law creating an offence
relating to religion cannot, under any circumstances, be said to have been enacted in the
interest of public order27. The expression ‘Public order’, here, refers to the disorder of
more gravity than those affecting mere ‘law and order’28. However, the difference
between ‘law and order’ and ‘public order’ is one of degree and nothing else. At times, a
mere problem of ‘law and order’ may become grave and cause ‘public disorder’. This
has been clearly pointed out in the following observation of the apex court:
“A criminal act hitting a private target such as indecent assault of a woman or slapping a
neighbor or knocking down a pedestrian while driving, may not shake up public order.

10
But a drunk with a drawn knife chasing a woman in a public street and all women running
in panic, a Hindu or Muslim in a crowded place at a time of communal tension throwing a
bomb at a personal enemy of the other religion and the people, all scared, fleeing the area,
a striking worker armed with a dagger stabbing a blackleg during a bitter strike spreading
terror – these are invasions of public order although the motivation may be against a
particular private individual. The nature of the Act, the circumstances of its commission,
the impact on the people around and such like factors constitutes the pathology of public
disorder. One cannot isolate the fact from its public setting or analyze its molecules as in a
laboratory but take its total effect on the flow of orderly life. It may be a question of the
degree and the quality of the activity, of the sensitivity of the situation and the psychic
response of the involved people”.
The apex court, in several cases, has upheld the curtailment of freedom of religion
guaranteed under Articles 25 and 26 on the ground of ‘public order’ 30. In addition, public
morality and health are the two other grounds to which freedom of religion is subjected
under our Constitution. The expression ‘public morality’ is an abstract one that can only
be described, not exhaustively, on the basis of societal standards but difficult to define.
However, it is the core moral order capable of transforming into public morality, which
has a nexus with the state affairs, which is the concern of the law and, therefore, to which
religious freedom is subjected. The Commissioner of Police v. Acharya
Jagadishwarananda Avadhuta31 is the classical example where the apex court upheld the
restriction on the ground of ‘public order and morality’. In Church of God (Full Gospel)
in India v. K.K.R. Majestic Colony Welfare Association 32, the apex court upheld the
restrictions on use of loudspeaker for conducting religious prayers by holding that:
“activities that disturb the peace in the name of religion cannot be permitted in a civilized
society as rights are closely related to duties. The rights of babies, children, students, the
aged and the mentally and physically infirm to be protected from noise pollution, in the
form of amplified broadcasts of prayers, music or religious recitation, are required to be
honored. More so as regular exposure to noise leads to many kind of medical problems,
including high blood pressure, deafness and mental stress”.
Other Fundamental Rights:

The religious freedom guaranteed under Article 25 of the Constitution of India has been

11
made subject to all other fundamental rights envisaged in Part – III. By virtue of its

12
subordination to all other fundamental rights, in case of conflict between freedom of
religion and any other fundamental right/s, the former should always give way to the
latter. Thus, a person can exercise his religious freedom so long as it does not come into
conflict with the exercise of Fundamental Rights of others. Insertion of the expression
“the other provisions of this part” in Article 25 is understandable when we find the
particular rights, which are taken care of in this article, namely, the right to freedom of
conscience and the right freely to profess, practice and propagate religion. Bearing in
mind the overlapping nature of the sensitive rights in Article 19 (1) (a) with reference to
citizens and in Article 25 (1) with reference to all persons the founders of the
Constitution left no room for doubt in expressly subjecting Article 25 (1) to the other
provisions of Part – III.

Further, Article 25 (1) guarantees freedom of religion to every citizen and not to the
followers of any one particular religion. A person can properly enjoy it if he exercises
his right in a manner commensurate with the like freedom of persons following other
religions. What is freedom for one is freedom for others, in equal measure. Thus, in Rev.
Stainislaus v. State of Madhya Pradesh34, the apex court ruled that the fundamental right
to propagate does not include right to convert another person to one’s own religion
because if a person purposely undertakes to convert 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 in the country
alike.
Secular Activities:

The term ‘religion’ has not been defined in the Constitution, and it is a term, which is not
susceptible of any precise definition. No doubt, religion is a matter of faith. A religion,
undoubtedly, has its basis in a system of beliefs and doctrines, which are regarded by
those who profess that religion as conducive to their spiritual well being, but it is also
something more than merely doctrine or belief. A religion, as aforesaid, may not only lay
down a code of ethical rules for its followers to accept, but may also prescribe rituals and
observances, ceremonies and modes of worship which are regarded as an integral part of
that religion. Thus, the religious freedom guaranteed under Article 25, as its language
amplifies, assures to every person subject to public order, health and morality, freedom
not only to entertain his religious beliefs, as may be approved of by his judgement and
conscience, but also to exhibit his belief in such outwardly act as he thinks proper and to
propagate or disseminate his ideas for the edification of others. The protection under
Article 25 extends for rituals and observances, ceremonies and modes of worship which
are integral parts of religion and so to what really constitutes an essential part of religion
or religious practice has to be decided by the courts with reference to the doctrine of a
particular religion or practices regarded as parts of religion 36. However, economic,
financial, political or other secular activities associated with religious practices of any
particular religion clearly falls out side the purview of the protective umbrella of Article
25 of the Constitution37. That means purely secular activities, which may not be an
essential and integral part of a religion, are not protected and can be abrogated by
legislation subject to other Fundamental Rights. The management or administration of a
temple38; appointment of Priests or Poojaris to Hindu temples; rendering of religious
service by archaks, which is separate from performance of the religious service which is
an integral part of the religion40; management, administration and maintenance of Math,
safeguarding interest and fulfillment of the objects of Math; management of international
cultural township of Auroville by Sri Aurobindo Society; etc., have been considered to be
secular activities associated with religious practices.
Social Welfare and Reform:

Article 25 involves a separation between ‘religious’ activities, on the one hand, and
‘secular’ and ‘social’ activities, on the other. While the former are protected the latter are
not43. Sub-clause (a) of Clause (2) of Article 25 reserves the right of the State to regulate
or restrict any economic, financial, political or other secular activities, which may be
associated with religious practices and there is a further right given to the State by Sub-
clause (b) under which the State can legislate for social welfare and reform even though
by so doing it might interfere with religious practices 44. Social reform measures are
always permissible under our constitutional scheme and would not be void on the ground
of interfering with freedom of religion. Thus, the Hindu Marriage Act, for instance,
which introduces the principle of monogamy for the Hindus, is undoubtedly a law
providing for social welfare and social reform45.
However, by the phrase “laws providing for social welfare and reform” it was not
intended to enable the legislature to “reform” a religion out of existence or identity.
Article 25 (2) (a) having provided for legislation dealing with “economic, financial,
political or secular activity, which may be associated with religious practices”, the
succeeding clause proceeds to deal with other activities of religious groups and these also
must be those which are associated with religion. Just as the activities referred to in
Article 25 (2) (a) are obviously not of the essence of the religion, Similarly the saving in
Article 25 (2) (b) is not intended to cover the basic essentials of the creed of a religion
which is protected by Article 25 (1). .

Further, by virtue of Article 25 (2) (b), the State can throw open Hindu religious
institutions of a public character to all sections of the Hindus. Thus, when the vision of
the founding fathers of the Constitution to liberate the society from blind and ritualistic
adherence to mere traditional superstitious beliefs sans reason or rational basis has found
expression in the form of Article 17, the protection under Article 25 extends to a
guarantee for rituals and observances, ceremonies and modes of worship, which are
integral parts of religion47.
Thus, as a whole, the protective umbrella of Article 25 of the Constitution does not cover
economic, financial, political or other secular activities associated with religion nor it
prevents the State from bringing about social welfare and reform. And even the essential
religious beliefs, convictions and practices, which may form an integral part of religion,
are also subject to public order, morality and health.
3. WHETHER ‘RIGHT TO CONVERSION’ IS ENVISAGED UNDER
ARTICLE 25?

One of the most controversial substantial questions associated with freedom of religion
for the last several decades in India is, whether ‘right to freedom of conversion’ is
concomitant of ‘right to freedom of religion’ envisaged in Article 25 of the Constitution.
Unlike some of the International Instruments48, which expressly recognize freedom of
conversion, there is no express provision referring to the ‘conversion’ in the Constitution
of India. Yet, the plain reading of Article 25 implies that the ‘freedom of conversion’
emerges from ‘freedom of conscience’.

Article 25 of the Constitution guarantees, subject to limitations, right to freedom of

conscience and right freely to profess, practice and propagate religion. In our
constitutional scheme ‘freedom of conscience’ is an edifice on which the consequential
right to profess, practice and propagate religion has been built. ‘Freedom of conversion’
emerges directly from ‘freedom of conscience’ and consequential ‘right to profess’, but
not from ‘freedom to propagate’.
By ‘freedom to propagate’ one has a liberty, within limits, to transmit or spread one’s
religion by exposition of its tenets or his own ideas and convictions. Such, an exposition
of religious tenets and ideas may sometimes lead to conversion. But conversion as a
matter of right does not emerge from freedom to propagate. The reason is obvious
because no one is duty bound to convert oneself at the instance of other person. Not even
to attend religious instructions or propagations. Any compulsion to attend religious
instructions or to convert any person, against his own wishes, violates, apart from other
rights, freedom of conscience itself, which is the basis of freedom of religion. Thus, no
one can claims to have ‘right to convert other’ as a necessary corollary of ‘freedom to
propagate’ religion. Freedom of propagation should always be exercised in a manner
commensurate with the freedom of conscience of persons following other religion. What
is to be remembered and honoured is that the Article 25 guarantees freedom of religion to
every person and not to the followers of any one particular religion.
On the other hand, if a person by exercise of his ‘free conscience’ chooses to convert
himself to some other religious faith and starts professing it by openly acknowledging it,
the State cannot prevent him. To do so would also amount to infringement of ‘freedom of
conscience’ and ‘right freely to profess’ religion.
Thus, though, Article 25 (1) of the Constitution of India implies freedom of conversion
from one religious faith to another by exercise of free conscience or free will, the very
idea that the right to conversion emerges from freedom to propagate religion is a
misconceived one. Any attempt to endorse such an idea would amount to giving primacy
to the rights of one religious group over the other, which indeed is unsecular and
undemocratic. The apex court, when confronted with such a question, in Rev. Stainislaus
v. State of Madhya Pradesh, has observed:

“What Article 25 (1) grants is not the right to convert another person to one’s own
religion by an exposition of its tenets. It has to be remembered that Article 25 (1)
guarantees ‘freedom of conscience’ to every citizen, and not merely to the followers of
one particular religion, and that, in turn, postulates that there is no fundamental right to
convert another person to one’s own religion because 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”1.
The above said proposition of the apex court is in consonance with UDHR and ICCPR,
which recognize ‘freedom of conversion’, to which India is a party. Thus, the
Constitution of India, too, recognizes ‘freedom of conversion’ as an individual right of a
person to quit one religion and embrace another voluntarily. But, under our constitutional
scheme, by no stretch of imagination, the right to convert another can be derived.
4. LEGISLATIVE COMPETENCE TO REGULATE FREEDOM OF
RELIGION

As mentioned above, the protective umbrella of Article 25 is very wide, it covers not only
freedom of conscience and belief, but also to profess, practice and propagate religion.
However, the constitutional protection envisaged under Article 25 is not absolute. Even
the essential belief, convictions and practices, which are integral part of religion, are also
subject to Public order, morality and health. The power of the State to regulate religious
freedom on those grounds has, thus, been reserved under the Constitution.

Under our constitutional scheme, the power to legislate has been clearly demarcated
between the Union and the State legislature. Article 245 deals with territorial extent of
the application of laws made both by Parliament and by the Legislatures of the State.
Article 246 of the Constitution, which is pertinent in the context, speaks about subject
matter jurisdiction of both Parliament and State legislatures to make laws. Various
subject matters of legislation have been enumerated in three different lists of Schedule
VI. By virtue of Clause (1) of Article 246, the Parliament has got power to legislate on
the subject matter enumerated in List – I viz., Union List. Under Clause (3) State
legislatures have exclusive power, subject to Clause (1) and (2), to make laws with
respect to any of the matter enumerated in List – II i.e., State List. Clause (2) of Article
246 authorizes both Union and State Legislature to make laws on all the entries
enumerated in List – III i.e., Concurrent List. However, in case of conflict between Union
and State legislations, by virtue of Article 254, Law made by Union shall prevail. Thus,
under the scheme, the Parliament has exclusive/superior power to legislate on any of the
entries in Schedule VII, except those enumerated in List – II. Thus, if any particular
matter falls within the exclusive competence of the States, that represents the prohibited
field for the Centre.

Though, the Indian Constitution contains a very elaborate scheme of distribution of

legislative powers in three lists, the subject matter ‘religion’ is not enumerated in any of
the lists. The absence of relevant legislative entry does not mean that the profession,
practice and propagation of religion or any other activities predominantly associated with
religion cannot be regulated in any manner. Under scheme of distribution of legislative
power, the Constitution has devised ‘residuary legislative power’ and conferred it on the
Union Legislature to take care of such a situation. The scope of residuary power is very
wide. The only condition precedent to exercise residuary legislative power is to clearly
establish the legislative incompetence of the State legislature 52. Thus, by virtue of Article
248 read with entry 97 of List – I of Schedule – VII, the Parliament can, subject to the
entries in List – II, enact a comprehensive legislation governing the various facets of
‘religion’. It is needless to mention that even the issue of conversion from one religion to
another may well be dealt with by Union legislation.

However, it is to be noted that the ‘freedom of religion’ guaranteed under Article 25 is

not absolute, it is made subject, inter alia, to public order, morality and health. Two
relevant entries i.e., ‘public order’ and ‘public health’, to which the freedom of religion is
subjected, have been enumerated, respectively, in entry 1 and entry 6 of List – II of
Schedule VII. By virtue of Clause (2) of Article 246, as mentioned above, it is the State
legislature, subject to clause (1) and (2), which has the exclusive power to make laws,
either in the interest or for the maintenance of public order and public health. It is the
well settled principle of interpretation of legislative entries that “none of the entries
should be read in a narrow, pedantic sense; that the ‘widest possible’ and ‘most liberal’
construction be put on each entry, and that each general word in an entry should be held
to extend to all ancillary or subsidiary matters which can fairly and reasonable be said to
be comprehended in it”. Thus, the State legislature has got power to make laws to
regulate any activities, which, in the opinion of such legislature, have tendency to disturb
public order or affect public health. If the freedom to profess, practice and propagate
religion is exercised in a manner, which is likely to disturb the public order or affects the
public health, the State legislature is competent to enact the law to regulate the same. As
long as such State legislation, in pith and substance, relates to the preservation of public
order or protection of public health, they are intra vires.
Thus, both Union Legislature, by virtue of residuary legislative power under Article 248
read with entry 97 of List – I, and the State legislature, only for the purpose of
preservation of public order and protection of public health, are competent to make laws
for the purpose of regulation of activities associated with religion.
 CHAPTER III

ANTI CONVERSION LAWS IN INDIA: AN ANALYSIS IN THE

LIGHT OF CONSTITUTIONAL GUARANTEE OF FREEDOM OF
RELIGION

Anti-conversion laws were in operation in several princely states before independence.

After independence many states enacted such laws with a view to prevent conversion by
use of ‘force’, ‘fraud’ or allurement/inducement. The former do not call for a detailed
analysis whereas the latter need deeper examination.
Anti-conversion Laws of Pre-Independence era:
British India has had no anti-conversion laws probably because the British themselves
professed a proselytizing religion. However, many princely states had enacted such laws.
Prominent among them were Rajgrah State Act, 1936, the Patna freedom of Religion Act,
1942, Surguja State Apostasy Act, 1945 and the Udaipur State Anti Conversion Act
1946. Similar legislations were promulgated in Bikaner, Jodhpur, Klahanadi and Kota
etc,. Specifically against conversion to Christianity.
The first anti conversion law was the Rajgrah State conversion Act, which was enacted in
1936. This enactment banned the preaching of Christianity and prohibited the entry of
Christian missionaries in the former Kingdom of Rajgrah, Jodhpur, Surguja etc. of
Chhotanagpur areas. The Surguja State Apostasy Act, 1945 was the second enactment to
prohibit conversion from Hinduism to Islam and Christianity by vesting the power to
allow or disallow conversion in the Darbar of the Rajas under the guise of maintaining
law and order and establishing public peace. Similarly the Udaipur State Conversion Act,
1946 required all conversions from Hindu religion to other faiths to be registered
officially. The basic purposes of all these laws were to insulate Hindus from the
onslaught of Christian missionary activities. Most of these laws required individual
converts to register their conversion with specified government agencies. Those who
secured conversion of a person by fraud, misrepresentation, coercion, intimidation, undue
influence or the like, were made liable to punishment. Minors could not have been
converted and children of convert would not automatically get their parents new faith.
Conversion to another religion was thus legally sought to be regulated by the Hindu
rulers of princely states54.
Anti-Conversion Laws in Post Independent India:

During the process of Constitution making, there was a lot of sound and fury in the
Constituent Assembly over the issue of religious conversion. Though, there was no
difference of opinion on the merits of the case that forcible conversion should not be or
cannot be recognized by law, it was strongly felt not to make an express provisions in the
Constitution for all such conceivable things, which could well be regulated by an
ordinary legislation55.

Since the adoption of the Constitution of India, many attempts were made to enact a
central legislation to regulate religious conversions in India. In 1954, Mr. Jethalal
Harikrishna Joshi, Member of the then ruling party moved in Parliament the ‘Indian
Converts (Regulation and Registration) Bill, 1954’ providing for compulsory licensing of
the missionaries and for registration of conversion with government functionaries. It was
opposed mainly by Christians; the Bill was eventually dropped at the behest of the then
Prime Minister of India. In 1960 another Bill was introduced in Parliament viz., the
‘Backward Communities (Religion) Protection Bill’, which aimed at checking conversion
of Hindus to “non-Indian religions” which, as per the definition in the Bill, included
Islam, Christianity, Judaism and Zoroastrianism. It was soon rejected by Parliament for
its apparent affront on specific religious faiths. Again in 1979, the house had witnessed
introduction of ‘Freedom of Religion Bill’, by O.P. Tyagi, seeking official curbs on inter-
religious conversion, which was opposed among others by the Minorities Commission 57.
Thereafter no such attempts were made in this direction to enact central law to regulate
religious conversion.

However, in some of the States due to the overwhelming presence of the problem and
persistent demand to ban conversion by force, fraud or allurement, the issue had been
given serious thought. The State of Madhya Pradesh was first in order, which appointed a
committee called ‘Christian Missionary Activities Committee’ on April 16, 1954 headed
by Dr. Bhavani Shankar Niyogi, former Chief Justice of the Nagpur High Court to have a
thorough inquiry made into the whole issue through an impartial committee 58. Mr. K.C.
George, a Professor in the Commerce College at Wardha, represented the Christian
Community. The Report of the Committee (called as Niyogi Committee Report) was
published by the Government of Madhya Pradesh in 195659.

Relying on the recommendations of the Niyogi Committee, the State of Madhya Pradesh
had enacted Madhya Pradesh Dharma Swantantraya Adhiniyum, 1968. By then the State
of Orissa had passed a similar legislation called Orissa Freedom of Religion Act, 1967.
Subsequently many other States have followed the suit. Similar legislations of other
states are Chattisgarh Freedom of Religion Act, 1968 (The Madhya Pradesh Act was
adopted by the State of Chattisgarh after its formation); Arunachal Pradesh Freedom of
Religion Act, 1978; Tamil Nadu Prohibition of Forcible Conversion of Religion Act,
2002; Gujarat Freedom of Religion Act, 2003; Rajasthan Dharma Swatantraya (Freedom
of Religion) Act, 2006; and recently, the State of Himachal Pradesh too had passed
Himachal Pradesh Freedom of Religion Bill, 2006, which is still pending for Governor’s
assent.
Thus, eight of twenty-eight States in India have enacted laws regulating Conversions in
their respective jurisdictions. However, the Tamil Nadu legislation has been repealed in
2006. The State of Madhya Pradesh had introduced few changes to the 1968 Act through
Madhya Pradesh Dharma Swantantraya (Sanshodhan) Vidheyak, 2006. The State of
Chattisgarh had recently passed a bill to amend Chattisgarh Freedom of Religion Act,
1968, which is yet to receive the consent of the Governor.
Important provisions of all these legislations have been analyzed in the light of relevant
constitutional provisions hereunder:
1. Orissa Freedom of Religion Act, 1967:

The State of Orissa had enacted the Orissa Freedom of Religion Act, 1967 in the
Eighteenth Year of the Republic of India in order to provide legislative framework for
prohibition of conversion from one religion to another by the use of force or inducement
or by fraudulent means and for other incidental matters. The main object of the Act is to
check such activities, which, besides creating various maladjustments in social life, also
give, rise to problems of law and order 61. The Act extends to the whole of the State of
Orissa62. It contains 7 sections in all. Section 1 of the Act deals with short title, extent
and commencement of the Act. The remaining provisions of the Act are very pertinent in
the context of the study. They are as follows:

Section 2. Definitions: In this Act unless the context otherwise requires:

(a) “Conversion” means renouncing one religion and adopting another;
(b) “Force” shall include a show of force or a threat for injury of any kind
including threat of divine displeasure or social excommunication;
(c) “Fraud” shall include misrepresentation or any other fraudulent
contrivance;
(d) “Inducement” shall include the offer of any gift or gratification, either in
cash or in kind and shall also include the grant of any benefit, either
pecuniary or otherwise;
(e) “Minor” means a person under eighteen years’ of age.

In this definitional clause, the expressions “conversion”, “fraud”, and “minor” have been
defined precisely and are more or less unambiguous. The definitions of the words “force”
and “inducement” are, however, considered to be ambiguous. It is said that they are open
to wide interpretations, which render the legislation liable to be misused. It is the use of
the words ‘divine displeasure’ in the definition of ‘force’, which was objected.
It is submitted that the expression ‘divine displeasure’ is not novel. There are provisions
in the Indian Penal Code, 186063 as well as in Representation of People Act, 1951 64,
where this expression is used without defining it. In a number of cases the apex court has
considered the expression to decide whether a particular act would amount to ‘divine
displeasure’ or not65. Though the Court has not given any precise definition to the
expression, each time it has decided the issue in the light of fact and circumstances of the
case. Such an approach of the Court has not been subjected to any scrutiny. Nor has its
interpretation led to any controversy. Thus, it is not proper to say that the expression
‘divine displeasure’ is very vague only in this context so as to render the law liable to be
abused. If it is vague here, it is vague else where also. Precision in the use of any
expression in statutes is always desirable, but mere lack of precision would not
automatically result in the abuse of law. It is more so when we have independent
judiciary to decide such issues.
Further, it was also feared that the definition of the expression ‘inducement’ is very wide
and that it can also be used against charitable activities undertaken by religious groups,
which could be portrayed as a form of temptation to convert. The definition of the term
‘inducement’ under the Act is inclusive one. It has two parts. Part one states, “it shall
include the offer of any gift or gratification, either in cash or in kind”. Part two states, “it
shall include the grant of any benefit, either pecuniary or otherwise”. There is reference
to ‘monetary benefit’ twice in the definition both in the first part as well as in the second
part. It appears that the first part of the definition is sufficient to include all forms of
inducement, thus, the second part could have been avoided altogether. The inclusion of
second part particularly adds to the vagueness of the definition. However, in view of
Article 26 of the Constitution, which empowers religious denominations to establish and
maintain institutions even for charitable purposes, the definition should be given very
restrictive meaning so as to exclude purely charitable activities carried on by any
religious denominations or any section thereof so long as their prime motive is not
conversion. Otherwise it would offend the spirit of Article 26 of the Constitution.

Section 3. Prohibition of forcible conversion: No person shall convert or attempt to

convert, either directly or otherwise, any person from one religious faith to another
by the use of force or by inducement or by any fraudulent means nor shall any
person abet any such conversion.

Section 3 is one of the cardinal provisions of Act. It clearly mandates that no person shall
convert or makes any attempt, either directly or otherwise, to convert any person or abets
any other person to convert any person by use of force, inducement or through fraudulent
means. Thus, under Section 3 of the Act following acts by use of ‘force’, ‘inducement’
or by ‘fraud’ are strictly prohibited:

(i) Conversion of any person;

(ii) Any direct or indirect attempt to convert any person;

(iii) Abetment to convert any person.

The definition appears to be very clear in view of the objective of the statute, which is to
prevent conversion, by use of force, fraud or inducement. In the present form it stands
the test of Article 25.

Section 4. Punishment for contravention of the provisions of Section 3:Any person

contravening the provisions contained in Section 3 shall, without prejudice to any
civil liability, be punishable with imprisonment of either description which may
extend to one year or with fine which may extend to five thousand rupees or with
both.

Provided that in case the offence is committed in respect of a minor, a woman or

a person belonging to the Scheduled Castes or Scheduled Tribes the punishment
shall be imprisonment to the extent of two years’ and fine up to ten thousand
rupees.

Section 4 prescribes punishment for commission of any act prohibited under Section 3.
The provision, while laying down a sentencing guideline by prescribing maximum
punishment, has left sufficient space for the Court to exercise discretion in awarding
punishment. The punishments prescribed under the provision are:

(i) Imprisonment of either description which may extend to one year; or

(ii) Fine which may extend to five thousand rupees; or

(iii) Both Imprisonment as well as fine subject to the maximum limit prescribed.

The provision makes it very clear that the punishment prescribed under the act for
contravention of Section 3 is without prejudice to the civil liability that could be imposed
on such person for commission of any such acts. Thus, the provision prescribes common
punishment for conversion, attempt to conversion as well as for abetment to conversion
by use of force, inducement or fraud without any distinction. Direct and indirect attempt
to convert and abetment to convert any person through any of the above said means are
equally punishable as conversion through such means.

However, Proviso to Section 4 doubles the quantum of punishment for any act of
conversion or attempt to conversion or abetment to conversion in respect of a minor, a
woman or a person belonging to Scheduled Castes and Scheduled Tribes. Further, the
discretion of the Court in awarding the punishment had been curtailed to some extent
since both imprisonment and fine are mandatory and not alternative.

It appears that the different punishments have been prescribed in case of commission of
an offence in respect of a minor, a woman or a person belonging to Scheduled Castes and
Scheduled Tribes keeping particularly in view the vulnerability of such groups. Further
more, such a special provision can reasonably be justified in view of Article 15 (3) and
(4) of the Constitution. Thus, there is nothing in the provision, which makes it ultra vires
the Constitution. It may however be said that the commission of the act, attempt and
abetment of the act are treated alike for punishment.

Section 5. Offence to be cognizable: An offence under this Act shall be cognizable

and shall not be investigated by an officer below the rank of an Inspector of Police.

Section 5 of the Act deals with two things. It declares the nature of offence under this Act
as cognizable. Secondly, it mandates that offence under the Act shall not be investigated
by an officer below the rank of an Inspector of Police.
This section signifies the importance the legislature attaches to prohibition of conversion
by use of force, fraud or allurement. It is treated as a serious offence in as much as it has
been prescribed that only a senior officer is authorized to investigate.

Section 6. Prosecution to be made with the sanction of District Magistrate: No

prosecution for an offence under this Act shall be made without the sanction of the
Magistrate of the District or such other authority, not below the rank of a Sub-
divisional Officer, as may be authorized by him in that behalf.

Section 6 makes sanction of a District Magistrate or such other authority, not below the
rank of a Sub-divisional Officer, authorized by him in that behalf, a condition precedent
to prosecute the offence under the Act. Section 6 is a legislative safeguard against the
possible misuse or abuse of the provisions of the Act.
Section 7. Power to make rules: The State Government may make rules for the
purpose of carrying out the provisions of this Act.
Section 7 delegates the rule making power to the State Government. The provision does
not require the Rules so made to be laid before the legislature for its consideration and
approval. However, since the vires of the Rules so made are always open to be
challenged before the Court of law 66, Section 7 cannot be said to be ultra vires the
Constitution.
2. Madhya Pradesh Dharma Swantantraya Adhiniyum, 1968:
[As amended by the Madhya Pradesh Dharma Swatantrya
(Sanshodhan) Adhiniyum, 2006]

Pursuant to the recommendations of Justice Niyogi Committee, the State of Madhya

Pradesh had enacted Madhya Pradesh Dharma Swantantraya Adhiniyum, 1968 in the
nineteenth year of Republic of India. The Act was enacted subsequent to the enactment of
similar legislation in Orissa. The main object of the Act was similar to that of the Orissa
Freedom of Religion Act, 196768. The Act was recently amended in the year of 2006 by
the Madhya Pradesh Dharma Swatantrya (Sanshodhan) Vidheyak, 2006. The important
provisions of the Act as amended in 2006 are as follows:

Section 2. Definitions: In this Act unless the context otherwise requires:

(a) “Allurement” means offer of any temptation in the form of:
(i) Any gift or gratification either in cash or kind;
(ii) Grant of any material benefit, either monetary or otherwise;
(b) “Conversion” means renouncing one religion and adopting another;
(c) “Force” shall include a show of force or a threat for injury of any kind including
threat of divine displeasure or social excommunication;
(d) “Fraud” shall include misrepresentation or any other fraudulent contrivance;
(e) “Minor” means a person under eighteen years of age.

The definitions of the words ‘conversion’, ‘force’, ‘fraud’ and ‘minor’ under the Act are
similar to the definitions in Orissa Act both in substance as well as in form. However, in
this Act, the term ‘allurement’ is used in place of ‘inducement’. The definition of
allurement given under the Act is similar to that of the one given for inducement under
the Orissa Act except that the term ‘material’ is used in the second part of the definition,
which is absent in Orissa Act. However, it appears that the specific incorporation of the
word ‘material’ would not make difference in the scope and ambit of the definition since
the first part of the definition itself is wide enough to include all forms of inducement or
allurement.

It is submitted that for the reasons stated above for Section 2 of the Orissa Act, the
definition of allurement in this Act may also be modified to bring it strictly in conformity
with Article 26 of the Constitution.

Section 3. Prohibition of forcible conversion: No person shall convert or attempt

to convert, either directly or otherwise, any person from one religious faith to
another by the use of force or by allurement or by any fraudulent means nor shall
any person abet any such conversion.

Section 3 of the Act prohibits conversion, attempt to conversion and abetment to

conversion by use of force, allurement or by any fraudulent means. This provision is
fully identical, both in form as well as in substance, with Section 3 of Orissa Act.

Section 4. Punishment for contravention of the provisions of Section 3: Any person

contravening the provisions contained in Section 3 shall, without prejudice to any
civil liability, be punishable with imprisonment of either description, which may
extend to one year or with fine, which may extend to five thousand rupees or with
both;

Provided that in case the offence is committed in respect of a minor, a woman or

a person belonging to the Scheduled Castes or Scheduled Tribes the punishment
shall be imprisonment to the extent of two years and fine up to ten thousand
rupees.

Section 4 of the Act is also fully identical, both in form and in substance, with Section 4
of the Orissa Act. Thus, for the reasons stated therein, the provision is said to be intra
vires the Constitution.

69
[Section 5. Declaration before conversion and prior intimation of ceremony: (1)
Any person intending to convert his religion shall give a declaration before the
District Magistrate or before an Executive Magistrate specifically authorized by
the District
Magistrate of the concerned district, prior to such conversion to the effect that he
intends to convert his religion on his own will.

(2) The concerned religious priest, who intends to convert any person from one
religious faith to another, either by performing himself the ceremony necessary
for such conversion or by taking part directly or indirectly in such ceremony,
shall intimate the date, time and place of the ceremony in which conversion shall
be made along with the name and address of the person to be converted, to the
concerned District Magistrate one month prior to the date of said ceremony, and
the intimation shall be in such form and shall be delivered or caused to be
delivered by the priest to the concerned District Magistrate in such manner as
may be prescribed.

(3) On receiving the intimation under sub-section (1) and (2), the District
Magistrate shall inform the details of proposed conversion to the concerned
Superintendent of Police, who shall ascertain through the officer in-charge of the
concerned police station regarding the objections, if any, to the proposed
conversion by local inquiry and intimate the same to the District Magistrate.

(4) Whoever fails to comply with the provisions contained in sub-section (1), shall be
punishable with fine, which may extend to one thousand rupees.

(5) Whoever fails to comply with the provisions of sub-section (2), shall be
punishable with imprisonment, which may extend to one year or with fine, which
may extend to five thousand rupees or both]

The present section is substituted for the old section 5 of the 1968 Act 70. According to the
old provision, any person who had performed the necessary ceremony of conversion as a
Priest or had taken part in such ceremony, either directly or indirectly, was under an
obligation to intimate the District Magistrate subsequent to such ceremony within the
time limit prescribed for the purpose. The failure, without sufficient cause, to comply
with it was made punishable with imprisonment, which may extend to one year or with

35
fine, which may extend one thousand rupees or with both.

The present section, as amended in 2006, had introduced some major changes into the
Act. The Provision makes it mandatory for any person intending to convert from his
religion to any other religion or religious faith to declare, before the District Magistrate or
an Executive Magistrate specifically authorized by the concerned District Magistrate, that
he intends to convert his religion on his own will. Such a declaration has to be made prior
to actual conversion. Any failure to make such prior declaration is made punishable with
fine, which may extend to one thousand rupees.
Unlike the earlier provision where religious priest was expected to intimate the District
Magistrate subsequent to the conversion ceremony, under the present Act, it is mandated
that religious priest who performs the conversion ceremony or takes part in it, either
directly or indirectly, shall intimate the date, time and place of the ceremony in which
conversion shall be made along with the name and address of the person to be converted,
to the concerned District Magistrate one month prior to the date of such ceremony. Any
failure to give such prior intimation with necessary details is made punishable with
imprisonment, which may extend to one year or with fine, which may extend to five
thousand rupees or with both.

Further Clause (3) of Section 5 imposed an obligation on the District Magistrate to

inform the Superintendent of Police the details of the proposed conversion, who shall in
turn, ascertain through an officer in charge of the concerned police station having
jurisdiction over the local area, any objections, if any, to such conversion and report back
to the District Magistrate concerned.

Thus, section 5 of the Act prescribes a regulatory mechanism to ensure that no

conversion by use of force, allurement or by any fraudulent means takes place. Thus,
even though the person who is intending to convert his religion by exercise of his free
conscience without any compulsion or allurement is also expected to make prior
declaration of the same, the provision cannot be said to be ultra vires the Constitution.
The provision has not prohibited conversion, but it is regulating the same in order to

36
confirm that the person is converting himself out of his own will. In the same way the

obligation imposed on the priest to give intimation to the District Magistrate is also
justifiable.
Section 6. Offence to be cognizable: An offence under this Act shall be cognizable
and shall not be investigated by an officer below the rank of an Inspector of Police.
Section 6 of the Act is identical, both in form and substance, with Section 5 of the Orissa
Act. Thus, for the reasons stated therein, Section 6 cannot be considered as ultra vires.

Section 7. Prosecution to be made with the sanction of District Magistrate: No

prosecution for an offence under this Act shall be made without the sanction of the
Magistrate of the District or such other authority, not below the rank of a Sub-
divisional Officer, as may be authorized by him in that behalf.

This provision is also fully identical, both in form and substance, with Section 6 of the
Orissa Act.

[Section 8. Power to make rules: (1) The State Government may make rules for the
purpose of carrying out the provisions of this Act;

(2) All rules made under this section shall be laid on the table of the State Legislative
Assembly]

Clause (1) of Section 8 is identical with section 7 of the Orissa Act. Clause (2) of the Act
provides legislative scrutiny of the Rules made by the State Government, which provision
is not there under the Orissa Act.

37
Challenges to the Constitutionality of Orissa and Madhya Pradesh Legislations

The Constitutional validity of the Orissa Freedom of Religion Act 1967 was challenged
before the High Court of Orissa in Yulitha Hyde v. State of Orissa72 in the year 1969. The
main contention of the Petitioners before the high court were: (i) The State Legislature
has no legislative competence to legislate on matters covered by the Act; (ii) The Act
infringes the fundamental right guaranteed under Article 25 of the Constitution. While
answering the questions, the hon’ble Division Bench of the Orissa High Court had

observed that although the phrases ‘force’ and ‘fraud’ were well-understood phrases as
defined by the Indian Penal Code, the phrase ‘inducement’ was vague. However, the
Division Bench negatived the petitioner’s contention with reference to Article 25 (1) of
the Constitution and held that the restriction was covered by the limitation subject to
which the right was guaranteed under Article 25 (1) of the Constitution. Regarding the
phrase ‘inducement’, their Lordships held that the definition is capable of covering some
of the methods of proselytizing and though the concept of inducement can be a matter
referable to ‘morality’, the wide definition is indeed open to reasonable objection on the
ground that it surpasses the field of morality. As regards the legislative competence of
the Orissa State Legislature to enact the impugned statute, it was observed that the
subject matter of the Act could not be said to be covered by Entry No. 1 of List II or
Entry No. 1 of List III of the Seventh Schedule. But, in fact it would be covered by Entry
No. 97 of List I of the Seventh Schedule and as such, the Parliament alone had the power
to legislate on such subject-matter. Accordingly, the high court declared Orissa Freedom
of Religion Act, 1967 as ultra vires the Constitution.

Similarly, the constitutional validity of the Madhya Pradesh Dharma Swantantraya

Adhiniyum, 1968 was challenged before the High Court of Madhya Pradesh, in Rev.
Stainislaus v. State of Madhya Pradesh73, on similar grounds. But, contrary to the rulings
of the Orissa High Court in Yulitha Hyde, the High Court of Madhya Pradesh in the
instant case had negatived all the contentions of the Petitioners and held that:

What is penalised is conversion by force, fraud or by allurement. The other element is

38
that every person has a right to profess his own religion and to act according to it. Any
interference with that right of the other person by resorting to conversion by force, fraud
or allurement cannot, in our opinion, be said to contravene Article 25(1) of the
Constitution of India, as the Article guarantees religious freedom subject to public health.
As such, we do not find that the provisions of Sections 3, 4 and 5 of the
M.P. Dharma Swatantrya Adhiniyam 1968 are violative of Article 25(1) of the
Constitution of India; on the other hand it guarantees that religious freedom to one and all
including those who might be amenable to conversion by force, fraud or allurement. As
such, the Act, in our opinion,guarantees equality of religious freedom to all, much less
can it be said to encroach upon the religious freedom of any particular individual.

Accordingly, the High Court of Madhya Pradesh upheld the constitutionality of M.P.
Dharma Swantantraya Adhiniyum, 1968.

Both the order of the Orissa High Court as well as Madhya Pradesh High Court were
subsequently challenged before the apex court. Since both the appeals have raised
common questions of law relating to interpretation of Constitution, they were heard
together by the apex court, in Rev. Stainislaus v. State of Madhya Pradesh75. It was
contended by the appellant before the apex court that the right to ‘propagate’ one’s
religion means the right to convert a person to one’s own religion. On that basis, counsel
has argued further that the right to convert a person to one’s own religion is a
fundamental right guaranteed by Article 25 (1) of the Constitution. While negating the
contention, the court observed:

What Article 25 (1) grants is not 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. It
has to be remembered that Article 25 (1) guarantees “freedom of conscience” to
every citizen, and not merely to the followers of one particular religion, and that,
in turn, postulates that there is no fundamental right to convert another person to
one’s own religion because if a person purposely undertakes the conversion of
another person to his religion, as dist inguished from his effort to transmit or
spread the tenets of his religion, that would impinge on the “freedom of
39
Conscience” guaranteed to all the citizens of the country alike.

As regards the legislative competence of the state legislatures in this regard, the apex
court has observed that:

It is not in controversy that the Madhya Pradesh Act provides for the prohibition of
conversion from one religion to another by use of force or allurement or by fraudulent
means, and matters incidental thereto. The expressions "allurement" and “fraud” have
been defined by the Act. Section 3 of the Act prohibits conversion by the use of force or
by allurement or by fraudulent means and Section 4 penalizes such forcible conversion.
Similarly, Section 3 of the Orissa Act prohibits forcible conversion by the use of force or
by inducement or by any fraudulent means, and Section 4 penalizes such forcible
conversion. The Acts, therefore, clearly provide for the maintenance of public order for,
if forcible conversion had not been prohibited, that would have created public disorder in
the States.

The expression ''Public order" is of wide connotation. It must have the

connotation which it is meant to provide as the very first Entry in List II. It has
been held by this Court in Ramesh Thappar v. The State of Madras (1950) S.C.R.
594 that "public order" is an expression of wide connotation and signifies state of
tranquility which prevails among the members of a political society as a result of
internal regulations enforced by the Government which they have established.
Reference may also be made to the decision in Ramjilal Modi v. State of U.P.
(1957) SCR 860 where this Court has held that the right to freedom of religion
guaranteed by Articles 25 & 26 of the Constitution is expressly made subject to
public order, morality and health, and that "it cannot be predicated that freedom
of religion can have no bearing whatever on the maintenance of public order or
that a law creating an offence relating to religion cannot under any circumstances
be said to have been enacted in the interest of public order". It has been held that
these two Articles in terms contemplate that restrictions may be imposed on the
rights guaranteed by them in the interests of public order. Reference may as well
be made to the decision in Arun Ghosh v. State of West Bengal (AIR 1970 SC
1228) where it has been held that if a thing disturbs the current of the life of the
40
community, and does not merely affect an individual, it would amount to
disturbance of the public order. Thus if an attempt is made to raise communal
passions, e.g. on the ground that some one has been ''forcibly" converted to
another religion, it would, in all probability, give rise to an apprehension of a
breach of the public order, affecting the community at large. The impugned Acts,
therefore, fall within the purview of the Entry I of List II of the Seventh Schedule
as they are meant to avoid disturbances to the public order by prohibiting
conversion from one religion to another in a manner reprehensible to the
conscience of the community. The two Acts do not provide for the regulation of
religion and do not find any justification for the argument that they fall under
Entry 97 of List I of the Seventh Schedule.

Thus, the apex court has finally upheld the constitutional validity of both Orissa Freedom
of Religion Act, 1967 and Madhya Pradesh Dharma Swatantraya Adhiniyum, 1968.

41
 CHAPTER IV

CONCLUSION

Important principles enunciated by the Court are: (i) Right to ‘propagate religion’ doest
not include right to convert another person to one’s own religion, but to transmit or
spread one’s religion by an exposition of its tenets; (ii) Article 25 (1) guarantees
“freedom of conscience” to every citizen, and not merely to the followers of one
particular religion, and that, in turn, postulates that there is no fundamental right to
convert another person to one’s own religion because if a person purposely under-takes
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; and (iii) as regards
legislative competence, the Court observed that the impugned Acts fall within the
purview of the Entry I of List II of the Seventh Schedule as they are meant to avoid
disturbances to the public order by prohibiting conversion from one religion to another in
a manner reprehensible to the conscience of the community. The two Acts do not provide
for the regulation of religion and do not find any justification for the argument that they
fall under Entry 97 of List I of the Seventh Schedule.

The Constitution of India impliedly recognizes freedom of conversion from one religious
faith to another by exercise of free conscience. Recognition of voluntary conversion gives
meaning to freedom of conscience enumerated in Article 25 (1) of the Constitution.
Neither, the impugned legislations nor the courts have denied such right of conversion by
exercise of free conscience. Therefore, the observation of the apex court upholding the
validity of impugned legislation as not violative of Article 25 (1) of the Constitution
seems to be fully justified.

42
 BIBLIOGRAPHY

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1. B. Shiva Rao (edt), The Framing of India's Constitution: Select Document,

(Universal Law Publishing Co. Pvt. Ltd. 2004).
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Judicial Decisions (Shubhada Saraswat, Poona, 1975).
3. Berman, Harald J, Interaction of Law and Religion (Abingdon Press, Nashville,
1974).
4. Bhartiya, V.P, Religion-State Relationship and Constitutional Rights in India
(Deep & Deep, New Delhi, 1987).
5. Cogley, Johan, Religion In A Secular Age: The Search For Final Meaning (Pall
Mall, London, 1968).
6. Derrett, J.Duncan M, Religion, Law And The State In India (Oxford University
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7. Drinan, Robert, Religion, The Courts And Public Policy (McGraw Hill, New
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