Aakar Patel | It's wrong to say Indians have right to choose faith

Last weekend the newspapers carried the headline: “People are free to choose their religion: Supreme Court”.

The report was about a public interest litigation petition which sought to stop Indians from converting out of the faith they were born into.

The judges were angry. They said: “What kind of writ petition is this? Why should a person above 18 not choose his religion?” The petitioner was the BJP’s Ashwini Upadhyaya.

The Indian judiciary has had a long history with the freedom of religion. It might be appropriate to revisit it. First, let readers understand this. You have no freedom of religion. You have no right to convert out of the faith you were born into. I do not know if our judges know this or have actually read the law. But it is a fact.

Article 25 of our Constitution reads: “All persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion”.

This is apparently a fundamental right, meaning one which enjoys a high degree of protection from State encroachment. The fundamental right was drafted after a debate in which India’s Christians had specifically asked for the right to propagate (to convert other people) because it was an article of their faith. In India, Muslims do not do mass propagation; even the Tablighi Jamaat only seeks to make Muslims better Muslims. It is the Christians who believe their religion requires them to spread the good word of Jesus Christ and to invite people into their faith. They asked for this right and were given it specifically by our Constitution’s makers, including arch Hindu fundamentalists like K.M. Munshi, who agreed with the Christians. Only one Hindu in the Constituent Assembly opposed the right to propagate and that was a 26-year-old Brahmin man from Odisha, Loknath Misra, whose brother Ranganath Misra and nephew Dipak Misra would both become Chief Justices of India.

Loknath Misra said that by making India secular, Hindus had done a favour to other communities and that propagation should be allowed but not be made a fundamental right. He need not have worried because this right was taken away by subterfuge as has been the case for many rights in India under the approving eye of the Supreme Court. Let us see how by looking at one just state, my own.

In 2003, under Narendra Modi, Gujarat passed a law that essentially removed all freedom of religion for Gujaratis. It requires individuals changing their faith to take the permission of the government. They had to fill out a form explaining to the district magistrate the reasons they were choosing to convert; their occupation and monthly income; how long they had been in the religion they were converting out of; to reveal whether they were Dalit or Adivasi; the date and time of their conversion; the names, addresses and ages of themselves and all in their family; the names and addresses of all guests attending the ceremony. If they did not do so within 10 days of their conversion, they faced one year in jail.

The person who is converting them has to fill out another form with all of the details referred to above and must submit, one month before the conversion, an application to the district magistrate seeking permission. The bureaucrat has one month in which to approve or deny permission. This denial of propagation obviously also affects the right of the person who wants to change their faith. One had to remain in the faith they were born into unless the government approved.

The district magistrate must also maintain a register that has the number of applications received, approved, denied or pending which he must report every quarter. The coercion can be imagined.

Gujarat’s Assembly was told in January 2020 that in the previous five years a total of 1,895 “applications” for conversion had been filed in the state. Gujarat had denied permission to convert to 889 individuals. The government “gave permission” to 1,006 applicants, almost all of whom were Dalits in Surat converting to Buddhism. The number of Dalit applicants to convert to Buddhism had swelled because in 2014, they had been denied permission to convert in a mass ceremony. The Narendra Modi government attempted to modify the law to exclude conversions from Buddhism and Jainism to Hinduism and vice versa from the state’s regulation. Meaning that Jains and Buddhists would be seen legally as Hindus and therefore would not really be “converting”. But this was objected to by Gujarat’s Jains, who resisted being clubbed with Hindus, and the modification was withdrawn.

I have used the example of Gujarat, but almost all of India’s states have these laws criminalising what is supposed to be a fundamental right.

The Gujarat law’s punishment for propagation is three years (four if the convert was a woman, Dalit or Adivasi). But how the district magistrate’s denial of permission would work at the level of faith was unclear. One priest I spoke to said India’s religion laws made no sense because of the nature of belief. He said: “Suppose I stopped believing in Christ today. This would be a conversion from being a believer to a non-believer. I am supposed to take permission from the State for this change, but I have already stopped believing.”

In recent months, BJP-ruled states like Uttarakhand, Uttar Pradesh, Madhya Pradesh and others have passed the “love jihad” laws, which tighten the State’s grip on religious freedoms further. It is totally and demonstrably false to say Indians have freedom of religion.

This is the background to which the newspapers have brought us the headline: “People are free to choose their religion: Supreme Court”.