Himachal Freedom of Religion Act
Dr Subramanian Swamy
The Himachal Pradesh High Court Bench has handed down a landmark judgement on the HP Freedom of Religion Act (HPFRA) holding it to be Constitutional. The Act was challenged by Christian missionary organisations as against the Constituiton and secularism.
The Bill to enact the Act was in fact moved by a Congress-led Government of Virbhadra Singh, the maverick Chief Minister in the Himachal Pradesh Assembly, and it was unanimously passed in 2006. It received Governor's Assent on 18.2.07.
The Object for the said Act was framed in the Preamble as a "prohibition of conversion from one religion to another by the use of force or inducement or by fraudulent means and for matters connected therewith or incidental thereto".
In 2011, two Writ Petitions were filed in the HP High Court by two Christian missionary organisations challenging the constitutionality of the Act and the Rules framed under the Act. There was no explanation given for this long delay of four years between the Bill's enactment and the Christian missionaries approaching the High Court.
The main point that the two Petitioners sought to make was that the Act was unconstitutional since it sought to deter the Christian missionaries from exercising their fundamental rights of propagation and conversion activities, which they said was guaranteed under Article 25 of the Constitution.
They also charged that the HPFR Act was to frighten a citizen from freely exercising his or her fundamental right to convert to Christianity.
I decided to intervene in the case at the urging of the VHP. The Court permitted me to lead arguments, which I did at length. I raised five main objections to these Writ Petitions.
First, I argued that the petitioners had no locus standi, because they had not adduced any legally valid evidence that anyone has been aggrieved by this newly enacted statute, viz., HPFRA. It was also apparent from that none of the three Petitioners were not personally aggrieved from any infringement of their fundamental rights to get converted.
Second, the major flaw in the two Petitions was that there has been a failure of the Petitioners to distinguish their respective cases from the Constitutional Bench judgement of the Supreme Court in the Rev. Stainislaus vs State of Madhya Pradesh (AIR 1977 SC 908 Vol II, p.55), and which judgement holds the field today.
This was a serious flaw since most of the Sections and Rules of the HPFRA were identical to such Acts in other States, which were considered by the Supreme Court Constitutional Bench and were upheld as constitutional. Thus, there is no question of considering the ultra vires of the Act or the Rule making power under it.
Third, the Supreme Court [Bennet Coleman case (1972) 2 SCC 788] had held that the test in determining the question whether a legislation or executive action infringes the fundamental rights is to examine its effects and not its object or subject matter. The Petitioners failed to do so in this regard.
Although the Petitioners have sworn in their affidavits that all the facts in their respective Petitions are to their "personal knowledge" yet it is obvious that the violent incidents and instances of intimidation cited in the Petition and alleged to be a consequence of enacting the impugned legislation, could not have been to their personal knowledge since they have not sworn that they were at the site of the said incidents.
Fourth, the Constitutional Bench of the Supreme Court Court held in the Stainislaus Case that such Freedom of Religion Acts fall within the purview of Entry II of the Seventh Schedule of Article 246 of the Constitution "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 Apex Court in the said Stanislaus Case also observed 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".
This ruling has since been re-affirmed in recent judgements of the Supreme Court. In Rabindra Kumar Pal @ Dara Singh v. Republic of India [in (2011) 2 SCC 490 at para 97], the Court said, "There is no justification for interfering in someone's religious belief by any means".
In the Stainislaus judgement, the Supreme Court held that (para. 22) "if forcible conversion had not been prohibited, that would have caused public disorder in the States (of Madhya Pradesh and Orissa)".
Thus, I argued, the Petitioners had been derailed by focusing on the right to convert when in fact they ought to have been concerned about public order that would be disturbed by fraudulent forced or induced conversions.
Induced or forced religious conversions, thus, arising from demeaning other religions have impacted on pluralism in society, and on the religious demography of the nation and hence there are dire consequences for public order, public health and public morality. The State thus has to act as a deterrent.
Fifthly, the necessity for placing reasonable restrictions on the right to propagate religion in Independent India was emphasised during the freedom struggle by Mahatma Gandhi and Sardar Vallabhbhai Patel.
Hinduism, which is the only theology which explicitly accepts that all religions lead to God is thus inherently committed to secularism and hence tolerant of other religions. In the Vedas, it is repeatedly stated Ekam Sat Vipra Bahuda Vadanti. No other religion states this. Parsis, Jews, Syrian Christians, and Moplah Muslims in India testify to this.
But Christianity and Islam are not inherently secular and are fundamentally predatory proselytising theologies that do not accept any other religion.
Hence, an underlying concern of modern India's founding fathers of the Constitution has been how to ensure that there is a stable religious demography in the country and thus continued plurality in worship in modern India.
For this objective and concern, in Jammu & Kashmir for example, Article 370 was incorporated in the Constitution to prevent migration of people from the rest of India into the state and disturb the religious demography.
However, in Kashmir Valley, being majority Muslim, we have witnessed forced emigration of Hindu Pandits and Sikhs, out of the State leading besides forcible conversions to Islam.
The said Article failed thus to provide protection for forced emigration of Hindus from the State. In varying degrees, this has been the fate of Hindus wherever they are in a minority.
The Indian Republic therefore can preserve a liberal religious outlook only if the Hindus remain in overwhelming majority in the country. Any rapid change in religious demography will therefore cause a huge public disorder.
That is, to safeguard secularism, we cannot allow the present religious demography to be wholesale altered by induced, forced or fraudulent conversions to Christianity and Islam.
Democratically elected state governments have thus been constitutionally empowered to take pre-emptive action to deter any kind of forced or bribed conversion because it de-stabilises the religious demographic structure of the nation.
Much noise has been made by the Evangelists about the High Court direction to delete Section 4 of the Act. The fact is that the Congress government which passed the Act had poorly drafted it, and I had agreed that the BJP HP government must bring an amendment to replace Section 4 as presently drafted. Section 4 only required that anyone intending to convert should first inform the police. The word "intend" if replaced with "decided" will make it acceptable.
The important result is that banning of induced conversions has been held to be constitutional. This is a total defeat of the Christian missionaries.