Freedom to believe

Freedom to believe

The debate on religious conversion in India has spiralled out of control

BY RAJEEV DHAVAN

Tolerating conversion

The debate on the people’s right to convert from one faith to another has simply gone out of hand. India is simply losing its sensitivities on this issue. India is a vast country with many faiths. It is the home of many religions. It has the second largest Muslim population in the world – after Bangladesh. It has more Christians than Australia. It is the home of Buddhists, Sikhs, Jains and a myriad of other faiths as well as faiths within faiths. Hinduism is not a monolithic faith although the Supreme Court in its decision in the Swami Narayan Temple Entry case (1966) gave such an expanded assimilationist interpretation to the word ‘Hindu’ that it blurred over divisions within and beyond the Hindu faith. It repeated this exercise in the Hindutva cases (1996) by virtually helping to redefine a new political religion. In the Jain case (2005), the court clearly offended the Jains by an assimilationist approach to their religion. All this goes against common sense and the constitutional dispensation that a religion is drawn from the faith itself and not a judicial version of what judges think it is. It was not for the Supreme Court to construct a faith on the basis of what others think.

This takes us to the core of our present discontent about the present and past controversies about religious conversion in India. The entire conversion debate is dominated by the Hindu Right whose political agenda is: (a) to declare the country and Indian civilisation as primarily, if not solely, a Hindu civilisation, (b) to insist that all past conversions over the centuries were induced by fear, fraud and opportunism, (c) to regard all past conversion as essentially suspect and (d) to pursue an intimidating policy to try and ensure that future conversions from Hinduism should not take place, and in any event, be minimised. It is thus clear that the controversy about conversion is inextricably linked to the rise of the new religious faith of political ‘Hindutva’. Belligerent, apprehensive, uncompromising and vicious in its attitude, the new face of ‘political Hindutva’ has surfaced with plans, policies and programmes to attack and discipline all other faiths. The policy of attack is clear from the destruction of the Babri Masjid, the murder of Rev. Staines, the intimidation of Christians and Muslims and murders in Gujarat and elsewhere. The policy of disciplining other faiths includes both a programme to impose fear on others as well as a legal policy to intimidate non-Hindu minorities through the processes of the law. There is a vast trail of legal and illegal censorship imposed by the cohorts of the new political Hindutva. The illegal strategy is articulated in the attacks on Hussain’s paintings and on the Bhandarkar Institute which, ironically, has been home to a lot of learning and archives on Hinduism. The legal strategy has been to arrest and intimidate minorities for hurting Hindutva sensitivities. The sheer aggression of politicised Hindutva is self-evident from the various campaigns the Hindutva Right have followed.

Conversion, the Constitution and Hindutva

One of the areas of legal intimidation has been on the issue of ‘conversion’. A common sense approach would be to say that people are free to convert from one faith to another if they wish to. In fact, historically, India is a country of converts. There were conversions from Hinduism to Jainism, to Buddhism and to Islam and Christianity. Over time, all this had added a richness and uniqueness to India. Today a Muslim or a Christian is a Muslim or a Christian, not a past Hindu. If people want to convert, they have the right to do so – without requiring the permission of the state or setting up a system whereby police officials and magistrates will be watching conversions under a system of conversion by surveillance.

India’s Constitution has to be sensitively read so as to admit to the right to conversion being a constitutional right to pursue a faith and belief of one’s choice – including, perforce, the right not to have any faith. There are two aspects to this. The first is the right of the person to convert to another faith if they want to. This is clear from the text or Article 25 of the Constitution which says "all persons are equally entitled to freedom of conscience and the right to freely profess, practice and propagate religion". Nothing could be clearer than this on the question of choice of faith. The second aspect also flows from Article 25. This is a right of adherents to a religion to propagate their faith. This entered the constitutional text because in the Constituent Assembly, M. Rathnaswamy suggested an amendment to the earlier draft of Article 25 to add the word ‘propagate’ to the text. This was done with the object of giving proselytising (and indeed, non-proselytising) faiths a chance to make their faith known to others. That the Supreme Court in Stanislaus’ Case (1977) said that the right to propagate does not necessarily mean the right to convert does not alter the basic approach of the Constitution that (a) people have a right to pursue a faith of their choice and (b) adherents of a faith have a right to propagate their faith.

The real question was whether this right to propagate should be monitored under a system of surveillance under a threat of prosecution for wrongful conversions. Unfortunately, there are too many Hindutva myths about present day conversions. I use the words ‘present day conversions’ advisedly. Something may be made of the conversions of ‘imperial’ Christianity through its priests. But that was all in the past. People rooted in the present, whose ancestors may have converted out of the Hindu (or any other) faith, have to be respected for the faiths they continue to choose to follow. The ‘Hindutva’ faith profiles all conversions as inherently suspect since it seems to hurt Hindutva pride. The idea that Hindus might prefer another faith is anathema. Babasaheb Ambedkar made it clear that he was leaving Hinduism for Buddhism because he found the former insensitive, cruel and corrupt. But proponents of ‘Hindutva’ get more annoyed if Hindus convert to Islam or Christianity. In ‘Hindutva’ minds, these are foreign faiths even though they have been practised and have had a following in India for centuries. This rancour that Hindus are deserting to a ‘foreign’ faith becomes a rallying cry to the Hindutva faithful. Willy-nilly, Muslims and Christians come to be targeted not just because they are different but they are impliedly accused in the Hindutva mind as stealing Hindus to their fold. But in fact there is no evidence of such stealing. A convert can easily decry the process of conversion after the conversion. But years pass by and converts remain happy with the faith they have converted to. Not satisfied with this, it is said that it is the poor that fall prey to conversion. This too seems highly doubtful. Professor Kalam’s excellent research in Tamil Nadu suggests the contrary. It is not the poor but the better off who convert. The Kalam research is dated by a couple of decades. He is going to follow it through with confirmatory explorations. But the myth of desperate conversions by the poor under inducement and fraud does not seem to have any foundation and seems illogical.

Conversion under surveillance

But since the forces of Hindutva cannot police the minorities they have decided to police the conversions. In 1954, the union Parliament refused to pass an Indian Conversion (Regulation and Registration) Bill or the Backward Communities (Religious Protection) Bill in 1960. But with the change in political power in the states in 1966, state governments began to pass legislation to monitor conversions. First came the Orissa Act of 1967, then the Madhya Pradesh Act of 1968 and then the Arunachal Pradesh Freedom of Religion Act of 1978. Acts were passed in Tamil Nadu, which were sought to be made stringent by Chief Minister Jayalalitha. Similar legislation exists in Gujarat (2003) and Chhattisgarh (2005). More recently, a bill was passed by the Rajasthan legislature which the governor seems to have reserved for presidential assent.
The Orissa and Madhya Pradesh bills were upheld by the Supreme Court in Stanislaus’ case (1977) where the court took the view that the right to propagate did not include the right to convert. But the judgement of the Supreme Court is wrong both in its interpretation of the right to propagate as well as on other counts. Two aspects need to be highlighted. The first is that the Supreme Court looked at the right to convert as part of the right to propagate one’s faith to others but not the right of a person to get converted to another faith. Those seeking to convert another may have the right to propagate but not convert, but this cannot eclipse the right of the converted to choose a religion or faith of their choice. Secondly, the court did not scrutinise the contents of the legislation and test it on the grounds of public order, health or morality, which are the sole grounds on which the rights of a person to choose their faith can be curtailed. In 2004 the Supreme Court used up an opportunity to consider the issue by blindly following the Stanislaus case and giving a short judgement without even issuing notice to the other side to hear the matter properly.

Anyway, the standard pattern of conversion bills is founded on the principles of policing and surveillance over conversion. There is a system of reporting conversion to the authorities, subjecting the conversion to scrutiny on the basis of fraud or inducement and filing criminal prosecutions on those who perform conversions or organise events to enable conversions to take place. One would have thought the Indian legal system has better things to do than policing conversions and subjecting them to surveillance. Unfortunately, the votaries of the new aggressive Hindutva rely on the Supreme Court’s judgement in 1977, made during the height of the Emergency when the Supreme Court’s juristic sensitivities eluded some of the judges. The Stanislaus case (1977) must be reassessed. In any event, the new legislations on conversions must be subject to scrutiny. Such legislation is not getting better. It is only getting worse.

The process is the punishment

With this we must turn to the effect of anti-conversion surveillance regimes on the minority communities who are targeted by this and other legislation. Such legislation immediately puts them on the defensive. They cannot praise their own faith. When people want to convert, they are subject to report back and policing. This is followed by criminal investigation and prosecution. Eventually, they may be acquitted. But in real terms, the process is the punishment.

The fact that the process can be the punishment is what concerns me in respect of a recent judgement of the Supreme Court in the Pastor Raju case (2006). India has created many offences which are aimed at preserving religious and communal harmony. The upshot of these offences is that they prohibit promoting enmity between groups (Section 153A of the Indian Penal Code), imputations and assertions which are a threat to national integrity (Section 153B) and the acts which deliberately outrage religious feelings or insult the religion or religious beliefs of a class (Section 295A). Such offences may be necessary. But there is a significant aspect to these offences that cannot be overlooked. Under the Indian legal system, any individual can simply file a First Information Report (FIR) for serious (cognisable) cases. The effect of this is that as soon as an FIR is filed, the police start investigating and there is an even chance that the perpetrator will be subject to pre-trial imprisonment. If the offence is not serious, the process can be triggered off by complaints to the magistrate to initiate the legal process with all its ensuing consequences. This means anyone can put a religious adversary into a position where they are investigated and jailed. The government was aware of the mischief that could emanate from these provisions. Such mischief could create antagonism between communities.

Wisely, Indian law has interposed a safeguard whereby these sensitive offences can only proceed if the government in question sanctions the prosecution. A similar safeguard is given in cases of corruption by civil servants and actions in defamation of government servants and some matrimonial offences (See Sections 195-199 of the Indian Penal Code). The purpose behind such a sanction procedure is to ensure that there is no frivolous prosecution and trial. In the cases that we are concerned with, if there was no sanction safeguard the forces of Hindutva would unleash prosecution after prosecution on minority communities on the basis of some or imagined hurt to the sensitivities of Hindutva. The question is how comprehensive and complete is the sanction safeguard so as to make sure that the offences to prevent religious strife are not used to create strife.

Pastor Raju lives in Karnataka. On January 14, 2005 there were great celebrations in Rampura, Channapatna. The occasion was the festival of Sakranti. Pastor Raju was also there. It is alleged that he spoke to various people to convert to Christianity in that the latter had more to offer than the Hindu faith. It is not entirely clear as to how and in what manner this speech was made – if indeed such a speech was made at all. This must have irritated a Shri Lokesha who then proceeded to file an FIR and an offence under Section 153B was made out. This section was introduced in 1972 and seeks to criminalise any imputation or assertion which is prejudicial to national integration. The purpose behind this section is to prevent a collective condemnation of any religious, racial, language, regional group, caste or community by asserting that they are not worthy citizens who believe in the integrity and sovereignty of India (Section 153B (a) and (b)). But Section 153B also criminalises assertions, pleas and appeals which cause disharmony, enmity or ill will between people (Section 153B (1)(c)). Where such offences are in (a) religious place or during a religious event, the punishment would increase from three years and/or a fine to five years and/or a fine (Section 153B (2)). Thus the offence is a serious offence subject to considerable penalties.

The police decided to arrest Pastor Raju. It is not clear why he was arrested. But there must have been some compulsions to do so. Pastor Raju was then taken to a magistrate and remanded to judicial custody. Later, a bail application was rejected. Pastor Raju moved the high court to say that the entire proceeding should be quashed because the safeguard of getting a sanction from the state government was not fulfilled. In common sense terms, it seemed fair to raise this plea. The very purpose of the sanction safeguard was to ensure that frivolous and vexatious proceedings should not be launched in cases of this nature. In Pastor Raju’s case the wheel seemed to have turned at least half circle. He was arrested and in jail. The high court took the view that this was clearly a case where sanction under Section 196 (1-A) of the Criminal Procedure Code was required. It seemed like vexatious victimisation where the accuser was creating strife through prosecutorial investigation and litigation. This may have influenced the high court’s decision.

But, in the Supreme Court, the decision of the high court was reversed. The judgement of the Supreme Court by Justice GP Mathur for himself and Justice Dalveer Bhandari concerned itself with the technical interpretation of the sanction requirement. Unfortunately, the court did not go into the intent of the sanction safeguard and why it was part of the criminal process. This might have helped both to interpret the sanction safeguard and apply it to the facts of the case. At this stage, it might be useful to reproduce the offences which contain the sanction safeguard in the Criminal Procedure Code.

"S. 196: Prosecution for offences against the state and for criminal conspiracy to commit such offence.-
(1) No Court shall take cognisance of –
(a) any offence punishable under Chapter VI or under Section 153A, Section 153B, Section 295A or Section 505 of the Indian Penal Code, (45 of 1860) or
(b) a criminal conspiracy to commit such offence, or
(c) any such abetment, as is described in Section 108A of the Indian Penal Code, (45 of 1860)
except with the previous sanction of the central government or of the state government.
(1A) No court shall take cognisance of –
(a) any offence punishable under Section 153B or subsection (2) or subsection (3) of Section 505 of the Indian Penal Code or
(b) a criminal conspiracy to commit such offence
except with the previous sanction of the central government or of the state government or of the district magistrate."

The entire controversy in this case rotates around the idea that cases concerning offences which deal with national integration and religious strife should proceed only with the previous sanction of the central government, state government or the district magistrate. The role of the government in this regard is a critical one. Religious leaders might be arrested out of spite to give rise to public disorder. In sanction cases, the government is expected to make a comprehensive decision and to examine the facts and evidence as well (See Jaswant Singh AIR 1958 SC 125 generally). It is obvious that without a sanction the criminal process must come to an end.

But there is an important distinction between the stage of investigation and the stage of trial. One view is that unless the sanction requirement specifically says so, an offence requiring sanction may be investigated but the trial cannot proceed unless and until government sanctions a prosecution. But in many cases it is the process of investigation under conditions of imprisonment that is onerous. So when does the safeguard of sanction begin to operate?

In dealing with the sanction safeguard, the Criminal Procedure Code does not use clear-cut language to distinguish between ‘investigation’ and trial. Had the code clearly said that an investigation in respect of such offences may continue but a trial may not there would have been no controversy. Whether that distinction may be implied is another matter. The code simply says that cognisance may not be taken of an offence without a sanction from the government. What does this mean? This cannot mean that no investigation of the offence can take place. But can we go to the other extreme and say that the arrest and judicial remand of Pastor Raju could take place and the sanction was only to prevent the trial from proceeding further? Where exactly does the protection of the accused from vexatious prosecution begin? Of course, the sanction safeguard is not just a protection for the accused but also a matter of public interest which necessarily recognises that random prosecutions in the area of potential religious strife are against the public interest.

If Parliament had intended the sanction safeguard to operate only to prevent trials until the government agrees, it would have said so. There are many recognised stages which could have been specifically mentioned including (a) the judicial remand stage or (b) the stage when the challan (police report) is filed or (c) the stage where the trial court draws up the charge sheet or (d) when the trial commences. But Parliament preferred to say that a ‘court’ shall not take cognisance of the offence unless sanction was given. Justice Mathur, in Pastor Raju’s case, accepts that "…(t)here was no special charm or any magical formula in the expression ‘taking cognisance’ which merely means judicial application of mind of the magistrate to the facts mentioned in the complaint and with a view to taking further action." He also admits that "...the word ‘cognisance’ has not been defined by the Criminal Procedure Code" and that the dictionary meaning is "judicial hearing of the matter". Matters of definition need not detain us. In RR Chari’s case (AIR 1951 SC 207), the Supreme Court laid down that "taking cognisance does not involve any formal action or indeed action of any kind but occurs as soon as the magistrate as such applies his mind to the case." This broad approach has been accepted in a large number of cases. Unfortunately, Justice Mathur does not quite tell us when cognisance is taken. He proceeds on the basis that since the sanctioning authority has to apply its mind to all the material collected during the investigation, cognisance must take place later. The real question then must be: When does the magistrate apply his judicial mind to a case? Perhaps when the magistrate simply orders an investigation he cannot be said to take cognisance of the offence (See Gopal Das AIR 1961 SC 986; Devarapally (1976) 3 SCC 252). There is some room for saying that in police cases based on FIRs the investigation takes place without an initial judicial application of mind. But there is considerable room for saying that when a person is remanded to judicial custody there has to be an application of the judicial mind and remand orders should not be "patently routine and appear to have been made mechanically" (Madhu Limaye’s case (1969) 1 SCC 292 at 299). The function of remanding a person to judicial custody is essentially a judicial function and not an administrative one. If we apply the "application of mind" test it would clearly be the case that when the magistrate decided that Pastor Raju should be kept in jail under judicial custody he applied his mind to whether an offence was committed and whether Pastor Raju should be remanded into custody during the investigation. If this was so, the decision to remand Pastor Raju was cognisance within the meaning of the sanction safeguard in Section 196 of the code.

I think we need to go one step further and assert that the term cognisance of an offence may mean different things in different contexts. Such a differentiated meaning has been accepted by the courts and on various occasions the court even took the view that the same word may have a different meaning in the same sentence of a statute (Printers (Mysore) Ltd (1994) 2 SCC 434; Ismail Faruqui (1994) 2 SCC 434). This might have been a better approach to take. Cognisance can mean cognisance for custody, cognisance of the challan, cognisance by way of the charge sheet, cognisance for the purpose of the trial. Ultimately, the purpose of the section must be looked at. The purpose of the sanction safeguard is to prevent the further harassment of a person in certain matters in the public interest. This purpose cannot be lost sight of. This is a matter of juristic policy. Justice Mathur observed; "on the view taken by the high court, no person accused of an offence which is of a nature which requires previous sanction of a specified authority before taking of cognisance by a court can ever be arrested nor can such an offence be investigated by the police." This summary is only partly correct. Investigation can take place. An arrest can be made. But the period for which a police arrest can be made is limited. As soon as this period is over, a judicial decision on custody cannot be made without a sanction. Justice Mathur seemed to have got lost in technical details and lost sight of the purpose of the section.

Arresting people is a serious invasion of civil liberties. That is the reason why so many judicial safeguards exist in matters of pre-trial imprisonment. The sanction safeguard was intended to prevent harassment other than starting a process of investigation. If the police think that they are right to effect an arrest and ask for judicial custody, the sanction safeguard must apply. We cannot forget or lose sight of the evocative phrase: the process is the punishment. Ever so often, it is only the process that is the punishment. Generally, in common law countries, the arrest takes place when the investigation is complete. In India, arrest and judicial custody are treated as routine affairs. This is precisely what should not happen. But if the police decide to combine arrest and investigation, in some classes of cases they must get sanction for the arrest from the government before the magistrate examines the case for custody. If this is not done, the punishment will be the process. In these religious and communal offences cases, Parliament wanted to be more careful than in respect of other offences.

Conversion and secularism

India is witnessing the rise of politically motivated communalism. For this purpose, an entirely new religion called ‘Hindutva’ has been invented. Hindutva lays claim to India as an exclusively Hindu nation. The tactics of Hindutva are unscrupulous. Buildings have been destroyed. Places of learning have been looted. Paintings have been destroyed. Books have been banned. All this in the name of a pseudo-religion which claims secular credentials. Unfortunately, the Supreme Court has supported the case for an assimilative Hinduism (as in the Swami Narayan case; Yagnapurushdasji AIR 1966 SC 1119) and treated Hindutva as if it were a natural celebration of India’s culture (See election decision in Ramesh Prabhoo (1996) 1 SCC 130; textbooks decision in Aruna Roy (2002) 7 SCC 368). At the same time, the court has espoused the case for secularism being part of the basic structure of the Constitution. At some stage the judges must declare the inarticulate premises on which they have wandered in these lost directions.

But what we are also seeing is the harassment of minorities through killing and various kinds of actions and inaction. New legislations, like the conversion statutes, are being drawn up to harass the minorities. The campaign to intimidate the minorities is done both through legal and illegal means. Manipulating the law and using the police to arrest and detain people is yet another form of intimidation. This is what has happened in Pastor Raju’s case.

Unfortunately, India’s secular governance is allowing a large number of such instances of abuse and intimidation to occur.

(Rajeev Dhavan is a senior advocate, Supreme Court of India.)