Constitution grants individual right to change religion as per volition: Madras HC The Court upheld the individual’s right while cautioning against an agenda of mass religious conversion

29, Jan 2022 | Manav Bhatt

The Madras High Court has upheld an individual’s right to voluntarily convert to another religion, while dealing with a petition to quash an FIR against a Catholic priest. The priest was already granted bail last year and the High Court held that the offences under 153A, 295A and 505(2) of IPC, and quashed the proceedings against him under the rest of the offences.

Background

A petition was filed by Catholic Diocese Priest P. George Ponnaih, seeking to quash the FIR registered against him for the offences underSection143(Punishment for Unlawful assembly), Section153A(Promoting enmity between different religious groups, acts pre-judicial to maintenance of harmony), Section295A(Deliberate and malicious acts, intended to outrage reli­gious feelings of any class by insulting its religion or reli­gious beliefs), Section505(2)(Statements conducing to public mischief), Section 506(1) (Criminal intimidation) IPC and Section269 of IPC and Section 3 of the Epidemic Diseases Act, 1897.Two public spirited individuals had also intervened to oppose his prayer.

The Priest in his speech at a meeting held on July 18, 2021in Arumanai village of the western Kanyakumari district, with regards to opposing the continued shut down of churches amidst the Lockdown, had made a series of statements that were found to be1 offensive by a section of the majority community, particularly, right-wing groups.

He had claimed that he and his associates had tapped the network of Catholic prieststo vote in favour of the DravidaMunnetraKazhagam(DMK), the party thathad won the recentLegislative Assembly election.

He also allegedly mocked the Minister for Hindu Religious and Charitable Endowments Department. Moreover, mocking MRGandhi, an elected BJPMLA, Ponniahhad said, “But we wear shoes. Why? Because the filth of Bharat Mata should not contaminate us. The Tamil Nadu government has given us free footwear. This bhumadevi is dangerous, you could catch scabies from it.”

He also appeared to warn Hindus about their allegedly dwindling numbers saying that Christians were nowmore than 62 % of the population (from the earlier 42 %) and are now the majority in the district.

Ponniah even targetted the Prime Minister saying, “The last days of Modi are going to be pathetic. I give it in writing. If the God we worship is a true living God, the history should see Modi and Amit Shah being eaten by dogs and worms.”

All this was recorded on video and then circulated on social media, after which the aforementioned complaint was registered.

Submissions before the Court

The petitioners’ contention was that he had not circulated the offending speech and had later circulated a video elucidating that the speech was not to hurt the sentiments of Hindus. Further, he was only delivering the speech for securing the rights of minorities and not to create disharmony or enmity between groups. He was trying to mock only three Christian MLAs recently elected over their passivity to act on the continued closure of churches, it was further contended that Dr.Ambedkar and Shri.E.V.Ramasamy have criticized the Hindu religion more harshly and thus the case be seen similarly. Further, relying on a bunch of cases, and contending that Bharat Mata and Bhuma Devi are not legal entities, it was pleaded that owing to the fundamental right of freedom of speech and expression under Article 19(1)(a) of the Constitution, his speech may not result in an offence.

Observations by the Court

With regards to charges under Section 295A IPC, examining the SC judgement of Ramji Lal Modi vs. State of U.P (AIR 1957 SC 620) wherein it was held that the punishment was only when there was deliberate and malicious intention to outrage the religious feelings of a class. In the present case, the gathering was convened for purposes of protesting closure of churches and mourning the demise of Fr.Stan Swamy, this deliberate and malicious element stands fulfilled as there was no need to attack the beliefs of Hindus, and even if a section of the Hindus were offended, the provision applies.Using offensive terms against Bharat mata and Bhuma devi whom many believing Hindus(including rationalists, materialists and non-believers included)regard as sacred was enough to commit the offence.

With regards to charges under Sections 153 Aand 505(2), the Court citing various instances from the priest’s speech and considering it as a whole, established that it targeted the Hindu Community and pitted the Christians and Muslims against them. The words of the priest who had a large following were definitely found to be provocative and filled with malice.

Whether safeguard of Article 19(1)(a) available?

Rejecting petitioner’s contention, the Court held that he could not be placed on the same footing as big leaders like Dr. Ambedkar and evenif areformist, academic or artist irrespective of his religion would have made such comments, the same would have been different and led to the safeguard under Article 19(1)(a).

Further,the Court applying the “Who?” and “Where?” tests, and explaining that malice being absent Section 295 A cannot be attracted,explained that in case of performance by stand-up comedians Munawar Faruqui or Alexander Babu, they being satirists and such malice being absent they can be said to voice their free speech. While, the petitioner being an evangelist, to him other religionistsare ‘a constituency to be poached’ and thus the victims may take offence and also have apprehensions with regards to their interests and well-being, thus the Court denying the protection to the petitioner.

Right to convert and freedom of religion

The Court further highlighting that India being partitioned on the basis of religion, secularism was established as the base of the republic. In this idea of India that the founders envisioned with promises of equality, liberty, fraternity and egalitarianism, freedom of conscience and the right to freely profess and propagate a person’s religion being established as a fundamental right, the Court stated:

“But the tryst with destiny can be achieved only if the multicultural character of the Indian society continues to remain. In other words, the status quo in the matter of religious demography has to be maintained. If there is a serious subversion of the status quo, calamitous consequences may follow.”

Thus, the State is to safeguard the rule of law, however, the threshold being reached, it may become irreversible which in fact is what the Justice Venugopal Commission report discussed further in this article had suggested.

The Court further reiterating that the Constitution grants an individual the fundamental right to freedom of conscience if they want to change their religion by their own choice. And giving examples such as A.R. Rahman (born as Dileep Kumar), Yuvan Shankar Raja, a son of T. Rajendar having converted to Islam, the Court emphasised that this choice of change of religion cannot be objected to. However, the Court mentioned caution as it said that the same cannot be a group agenda, saying:

“But religious conversions cannot be a group agenda. Our Constitution speaks of composite culture. This character has to be maintained. The clock of history can never be put back. But the status quo that obtains in the year 2022 as regards religious demographic profile may have to be maintained.”

Previous Jurisprudence on religious conversion

The apex Court in the case of Rev Stanislaus vs Madhya Pradesh (1977 SCR (2) 611), held that the fundamental right to “propagate” religion under Article 25 does not include the right to convert a person to a different religion. Hence upholding the anti-conversion statutes enacted by the states of Orissa and Madhya Pradesh, limiting religious freedom and the right to propagate religion. However, if each individual act of religious conversion is considered as coerced and criminal unless proven differently via a lengthy procedure including the State, the freedom of conscience guaranteed by Article 25 will be rendered hollow.

Further, the Court, in this case, interpreted religious conversion from the prism of maintenance of public order, as Article 25(1) of the Constitution of India states, “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.” And the Act therefore clearly provide for the maintenance of public order, as if forcible conversion had not been prohibited, that would have created public disorder in the State.

The Law Commission’s 235th report titled Conversion/reconversion to another religion – mode of proof has stated that changing one’s religion is out of one’s own conviction that his religion has not ended up to his expectations either spiritual or rational and also maybe because of the belief that other religion which he wants to convert to is better suited for his spiritual well-being and for the accomplishment of his legitimate aspirations. It further stated:

“At times it may be hard to find any rational reason for conversion into another religion. The reason for or propriety of conversion cannot be judged from the standards of rationality or reasonableness.”

To justify their Love Jihad law, the UP government has referred to the Judgement of Noor Jahan Begum @Anjali Mishra and Another vs. State of U.P. and Others(W.P [C] No. 57068 of 2014), where the court had held that held the union of a Muslim man and Hindu woman invalid as the woman had converted only for the purpose of marriage. The HC stated that a conversion is not bonafide if it is not motivated by religious feelings and is done solely for the purpose of establishing a legal basis for some claim of right or as a device to avoid marriage or to achieve an objective without faith and belief in the unity of God (Allah) and Mohamed as his prophet.

In the event of a religious conversion, there must be a change of heart and sincere conviction in the new religion’s doctrines rather than the previous religion’s tenets.

It is relevant to note that this judgement was overturned in 2020 in Salamat Ansari and Ors. Vs State of U.P [Crl. Mis. Writ Petition No- 11367 of 2020] where the court held that the Noor Jahan Begum case is a bad law as none of these judgments dealt with the issue of life and liberty of two matured individuals in choosing a partner or their right to freedom of choice as to with whom they would like to live.

Initial Anti-Conversion laws

Many Anti-Conversion laws have been legislated in the past to safeguard the right to freedom of religion and to put a check on religious conversions that are made by force. These include the laws enacted in Odisha in 1967, Madhya Pradesh in 1968, Arunachal Pradesh in 1978, Chhattisgarh in 2000 and 2006, Gujarat in 2003, Himachal Pradesh in 2006 and 2019, Jharkhand in 2017 and Uttarakhand in 2018.

Recent laws and SC petition by CJP

March 21, 2018: The Uttarakhand Freedom of Religion Act was tabled in the State Assembly.

May 11, 2018:The Uttarakhand Freedom of Religion Act received assent of the governor.

November 24, 2020: The Uttar Pradesh state government promulgated the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020.

These recent anti-conversion laws in the two states have been contested before the Supreme Court by Citizens for Justice and Peace (CJP)on the grounds (among others)that:

1. The right to convert is covered under article 25 and these legislations, impose unreasonable and discriminatory restrictions on the right.
2. If a person after marriage converts by his own will, the same amounting to personal choice, autonomy, privacy, conscience which have been embedded in the Fundamental rights under articles 14, 15,16, 19, 21 and 25 of the Constitution, it cannot just be said to be disruption of public order under art 25.

• As per Kesavananda Bharti case, basic structure is based on an individual’s dignity and freedom.

1. Discriminatory to women

Apart from this, the petition also covered Constitutional Obligations and Powers of Governors,Secularism, Ideology of B.R.Ambedkar, state incentives for inter faith marriages, the Law Commission Reports, the issue under the ambit ofInternational Law, etc.

February 17, 2021:CJP’s request to amend the original petitionand thus include the Madhya Pradesh and Himachal Pradesh State legislationswas admitted by the Supreme Court bench constituting of Chief Justice SA Bobde,Justice AS Bopanna and V. Ramasubramanian.

December 23, 2021: The Karnataka Protection of Right to Freedom of Religion Bill, 2021was passed in the state assembly by a voice vote even after the Congress and JDS protesting. The bill proposes for an imprisonment from three to five years with a fine of Rs 25,000, while for violation of provisions with respect to minors, women, SC/ST, offenders will face imprisonment from three to ten years and a fine of not less than Rs 50,000. The offense under this bill is non-bailable and cognizable.

In the words of Sri M.N. Rao, former Chief Justice of H.P. High Court as stated in ‘Freedom of Religion and Right to Conversion’ (2003) PL WebJour 19:

“Right to conversion connotes individual right of a person to quit one religion and embrace another voluntarily. This kind of change from one religion to another religion must necessarily be in consequence of one’s conviction that the religion in which he was born into has not measured up to his expectations, spiritual or rational. Sometimes it may also be the result of losing faith in one’s own religion because of the rigidity of its tenets and practices. Sometimes one may even lose total faith in the very concept of the existence of God and turn to Atheism. A change of religion, a consequence of any of the above reasons, falls within the ambit of the “Right to Conversion”

The Madras High Court order may be read here:

Related:

K J George pinpoints major flaws in anti-conversion Bill

J&K: right-wing goons harass Manipuri Christian pastor, tell him to chant ‘Jai Shri Ram’

Karnataka becomes fifth BJP-ruled state to introduce Anti-Conversion Bill