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print versionThe Times of India, December 21, 2014, 05.05 AM IST
Even under the present law, forcible conversion is an offence." Sardar Vallabhbhai Patel said so on April 22, 1947, as chairman of the "advisory committee on fundamental rights and minorities" to the Constituent Assembly. He was responding to a concern raised by Anglo-Indian representative Frank Anthony over how future legislatures might regard the issue of conversions. "You are leaving it to legislation," Anthony said. "The legislature may say tomorrow that you have no right." This exchange in the course of the advisory committee’s proceedings has acquired greater significance than ever before as the Narendra Modi government, which swears by Patel, called for anti-conversion laws across all the states and the Centre in the face of the Opposition’s indignation in Parliament over Ghar Wapsi in Agra.
Far from seeking any safeguards in the Constitution against forcible conversions, Patel took the view that the existing law was sufficient to check such crimes. He was opposed to incorporating a clause recommended by a "sub-committee on minorities" appointed by the advisory committee. The clause laid down that conversion brought about by "coercion or undue influence shall not be recognised by law". A majority in the sub-committee on minorities favoured it even after C Rajagopalachari had, according to the minutes, "questioned the necessity of this provision, when it was covered by the ordinary law of the land, eg the Indian Penal Code". The clause was originally drafted by K M Munshi before a "sub-committee on fundamental rights", which had also been appointed by the advisory committee. Holding that it was "not a fundamental right", Patel said on April 22, 1947 that the clause vetted by the two subcommittees was "unnecessary and may be deleted".
The anti-conversion laws that have since been passed in half a dozen states — and are now sought to be extended to the rest of the country — are an amplification of the very clause that had been dismissed by Patel on more than one count. The clause did not make it to the Constitution despite the demand for it from leaders of both minority and majority communities. While Anthony maintained that the clause was "absolutely vital to the Christians", Syama Prasad Mookerjee too said that the clause "should not be deleted". Their reasons were different: Anthony saw the clause as an indirect recognition for voluntary conversions and Mookerjee regarded it as a check on the misuse of conversions. The clause had seen many twists and turns before it was eventually dropped from the draft of the Constitution.
To begin with, since a majority in the advisory committee leaned towards the clause, Patel could not help retaining it in the report he sent on April 23, 1947 to the president of the Constituent Assembly, Rajendra Prasad. But then, when it came up for discussion before the Constituent Assembly on May 1, 1947, Munshi moved an amendment adding two more grounds for derecognizing conversions: fraud and under-age. It triggered a debate all over again among Founding Fathers on conversions driven by extraneous considerations. Patel weighed in with the suggestion that the clause be referred back to the advisory committee. Once Prasad accepted his suggestion, Patel had his way this time in the advisory committee too. Ten days after Independence, Patel wrote to Prasad on behalf of the advisory committee saying, "It seems to us on further consideration that this clause enunciates a rather obvious doctrine which is unnecessary to include in the Constitution and we recommend that it be dropped altogether."
Though the clause citing grounds for de-recognition had been dropped accordingly, the Constituent Assembly witnessed a fresh debate on conversions on December 6, 1947. The bone of contention was whether the freedom of religion should extend to the right to "propagate" it as well. As it happened, this word had not figured in Munshi’s original draft before the sub-committee on fundamental rights. It was inserted later at the instance of the sub-committee on minorities. According to the minutes of its April 17, 1947 meeting, "M Ruthnaswamy pointed out that certain religions, such as Christianity and Islam, were essentially proselytising religions and provision should be made to permit them to propagate their faith in accordance with their tenets." Recalling this "compromise with the minorities" prompted by Ruthnaswamy’s proposal, Munshi told the Constituent Assembly that "the word ’propagate’ should be maintained in this Article in order that the compromise so laudably achieved by the minorities committee should not be disturbed." In keeping with the freedom of speech endorsed by the same plenary body, Munshi said that it was anyway "open to any religious community to persuade other people to join their faith". It was then that the Constituent Assembly, cementing the idea of a pluralist nation, rejected the amendments proposing the deletion of the word "propagate".
The "compromise with the minorities" seemed to have been however disturbed two decades later when Orissa, a state with a relatively high percentage of Dalit and tribal population, came up with an anti-conversion law. The Orissa Freedom of Religion Act 1967 prohibited conversion "by the use of force or by inducement or by any fraudulent means". Its definition of the word "inducement" was controversial as it included "the grant of any benefit, either pecuniary or otherwise". This meant that if a Dalit were to leave Hinduism purely to gain a sense of dignity, his conversion was liable to be questioned on the ground of inducement. Unsurprisingly, the "vague" definition of "inducement" was one of the reasons cited by the Orissa high court in 1972 for declaring the 1967 law as unconstitutional.
Two years later, the Madhya Pradesh high court however upheld a similar state law. Subsequently, the Supreme Court clubbed together the appeals against the two high court verdicts. In 1977, the apex court upheld both the anti-conversion laws. But it steered clear of addressing the reasoning of the Orissa high court in striking down the 1967 law. It also glossed over the Constituent Assembly debates. The import of "propagate", it said, "is not the right to convert another person to one’s own religion". Reason: "if a person purposely undertakes the conversion ... that would impinge on the freedom of conscience guaranteed to all the citizens". Given the increasingly aggressive campaign to reconvert Muslims and Christians to Hinduism, there is an urgent need to revisit the Supreme Court verdict as well as the state laws.
