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Conscience and Faith: Bedrock of Freedom

Little Sister Leelamma Little Sister Leelamma
08 Nov 2021

Religion is a matter solely between Man & his God, wrote Thomas Jefferson, the third President of the United States, in his ceremonial message addressed to Danbury Baptist Association, Connecticut, on the New Year day in 1802. This archaeological collection is still a part of the unparalled and precious holdings of the Library of Congress.

Almost all secular countries in the world guarantee freedom of religion in some form or other. In India, it assumes special significance on account of her religious diversity and pluralism traceable in history. Religion has always been a volatile issue in the country. So too is the subject of religious conversion which paved the way for State’s intervention in the form of anti-conversion laws styled as Freedom of Religion Act.

Many States in the country have gone in for such legislation. Of late, it is reported that Karnataka is proposing a survey on Christian places of worship and missionaries and is also mooting an anti-conversion law. The instances of harassment on Christians and Churches in various parts of the country in the recent past based on unsubstantiated allegations of conversion would take us to closer scrutiny and debate in public sphere on the sanctity, rationality and legitimacy of anti-conversion laws.

Freedom of Conscience

State has a duty to respect and protect every human soul’s freedom of conscience. The Preamble to the Constitution declares that people of the country have four ultimate goals to achieve; Justice, Liberty, Equality and Fraternity. Freedom of conscience, by its very nature, is broader and wider in meaning and scope than the right of professing, practicing and propagating religion. Therefore, this freedom has to be understood in conjunction with the broader principles of secularism and democracy that form the core of the Constitution.

Freedom of conscience is natural and inalienable. It grants complete autonomy to an individual in matters of belief and faith. It has two dimensions -- internal and external. The internal aspect gives absolute freedom to hold religious ideas and convictions rooted in a person’s conscience and therefore cannot be made subject to State’s control. The external aspect may mean that the exercise of this right to the extent it affects public order may become a matter of concern for States and may have to be regulated by the States.

The religious conviction of a person stems from the depth of heart and mind and is an object of conscientious devotion, faith and pietism. Right to change one’s belief is thus a part of right of belief and the right of conscience. There is a difference between the outer man and the inner man, which the law must graciously acknowledge.

Freedom of Religion includes the freedom to transmit the tenets of religion. Propagation of faith has an extraordinary status. It is not concerned with propagation of any human message or ideology. Thus, any infringement by the State into the inner domain of a man touching the right to profess, practice and propagate religion would amount to violation of right to religion itself.

In a modern democratic society, several religions or branches of the same religion co-exist within one and same population. This would require that every one’s belief should be respected. State has a duty to remain absolutely neutral and impartial in matters of religion, failing which religious pluralism and functioning of democracy will be at stake. Secularism and religious pluralism were declared as constituting the basic structure of the Constitution by the Supreme Court in S. R. Bommai’s Case (1994).

Freedom of conscience and the right to freely profess, practice and propagate religion have been treated as falling within the right to religion by international documents, covenants and declarations. Article 18 of the Universal Declaration of Human Rights and International Covenant on Civil and Political Rights expressly recognises this guarantee. Article 9 of the European Convention on Human Rights and its Protocols 11 and 14 also reaffirms it.

The UN Declaration on the Elimination of All Forms of Intolerance and of Discrimination Based on Religion or Belief adopted by the United Nations General Assembly in 1981 also stresses on this right. These documents recognise the importance of human ascription to a religion and the autonomy of the individual to revise his religious status based on strong personal convictions. It is also in the light of these universal instruments forming part of larger principles of International law that the validity of the anti-conversion laws pressed into service by different States and its amendments carried out from time to time enhancing its rigours, have to be constitutionally tested.

Under the guise of freedom of religion, anti-conversion laws cannot be allowed to meddle with bonafide and genuine voluntary conversion and embracement of religion taking place through lawful means and within the limits of reason and ethics, without any coercion, inducement or allurement.

Stigmatising every conversion as forceful by the State or one performed under coercion or inducement and to initiate prosecution on account of the same is to create fear in human mind and to deny the constitutional guarantee of freedom of religion which is available to all on equal terms. Right to conversion, though may not be a Fundamental Right as has now been interpreted, cannot be deprived of its worthy existence as an inalienable and inherent constitutional right. Without this, Freedom of conscience and the right to religion become teasing illusions and promise of unrealities.

A Nation of many Religions

India is a Nation of many religions. Freedom of religion has been accorded constitutional protection. It is part of the free speech and liberty as well. Swami Vivekananda cherished the view of liberty in thought and action as the only condition of life, growth and well-being. Articles 25-28 of the Constitution are the icons of religious freedom. Religion is not defined in the Constitution. But the term has been given an expansive content by way of judicial interpretation. This freedom is not limited to citizens but extends to every person residing in the country. This right is not without limitation. Limitations have been placed on it by the Constitution itself.

Even in countries such as America and Australia where freedom of religion has been declared in unrestricted terms, limitation on it has been placed by the courts on grounds of morality, order and social protection. We need not refer to foreign authorities to determine the dimensions of religious freedom available in the country. The skeletal model of secularism envisaged in the Constitution has received life and blood through judicial interpretations recognising only bare minimum level of interference by the State, strictly confined to matters incidental to religion which is economic, commercial or political in nature and not intruding into purely religious affairs.

Religious Conversion

There is no explicit right to conversion mentioned in the Constitution. However, the ‘right to propagate’ expressly stated in Article 25 entails the right to conversion. As early as in 1954, the Supreme Court declared in Ratilal Panachand Gandhi’s case that every person has a fundamental right not merely to entertain religious belief as may be approved of by his judgement or conscience but to exhibit the beliefs and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for edification of others. A different view was expressed by the Supreme Court in Digyadarsan Rajendra  Ramdassji (1970) by holding that the right to propagate would not include the right to convert.

However, the Orissa High Court in Yulitha Hyde (1973) held that conversion is a right inherent in the right to freedom of religion. The Orissa Freedom of Religion Act was declared as unconstitutional, mainly for the reason that the Act dealt with religion and not public order and that the definition of inducement in the enactment is too vague and further on the count that Article 25(1) guarantees conversion as part of Christian religion. Later, the Supreme Court in Rev. Stanislaus (1977) case held that conversion cannot be identified with the effort to transmit or spread the tenets of one’s religion.

Conversion should be seen more as a means of fulfilment and action and cannot be limited to mere transmission of the tenets of religion. Propagation of religion is not merely imparting knowledge, but it is the wider spread of it, thereby producing intellectual and moral conviction in a person, leading him to action, namely the adoption of that religion. If propagation is a right, successful propagation may result in conversion.

Propagation cannot be restricted to the edification of religious tenets alone. The right of propagation without proselytization is meaningless to members of certain religions. Conversion should be understood as the aim of a religious propagation recognised by Article 25 and fulfilment of freedom of conscience and something that gives full meaning to it. Any State intervention negating the exercise of this constitutionally assured guarantee of propagation will have to be viewed as offending the freedom of religion.

Unfortunately, conversion has always been misunderstood in the background of inducement or coercion and genuine expressions of propagation and the resultant voluntary conversions have been widely reckoned as forceful, emasculating the very existence of the right of propagation. This calls for rational and clear standards to be laid down by law permitting the free exercise of the constitutional guarantee of propagation and conversion and forbidding only the forced or induced.

Door-to-Door Solicitation in USA

“Door-to-door solicitation” has always received attention of the US Supreme Court. The early case was Martin v. City of Struthers (1943) wherein the Supreme Court struck down an Ordinance forbidding distributors of literature from knocking on residential doors in a community. The object of the Ordinance was to protect the right to privacy, protect the sleep of many who were engaged in night shifts and also to protect residents against burglars posing as canvassers. The Court held that it is the right of every householder to decide whether he will receive strangers as visitors and that stringent prohibition can serve no purpose. Blatant restriction cannot be placed on dissemination of ideas.

Subsequently, in Watchtower Bible and Tract Society v. Village of Stratton, (2002) the US Supreme Court struck down an Ordinance which made it a misdemeanour to engage in door-to-door advocacy-religious, political or commercial -- without first registering  with the Mayor and receiving a permit. Justice John Paul Stevens speaking for the Bench remarked: “…..that a citizen must first inform the Government of her desire to speak to her neighbours and then obtain a permit to do so, wouldn’t it be offensive to the very notion of a free society?”  The US precedents on freedom of religion thus recognise the right to propagate and the right to solicit somebody to one’s religion.

Why do People Convert?

The question is a subject matter of many disciplines, not of law alone. It has to be answered from a sociological, psychological and theological perspective. Law alone cannot answer it, as law is only concerned with the legality or illegality of reasons and not reasons as such.

Reasons preceding and motivating conversion are many, mainly based on deprivation in various forms such as economic, social, moral, spiritual and psychological. Conversion can take place without persuasion. It is a free act of the conscience under the influence of spiritual power. The spiritual aspect of conversion is the connection of the soul with God. Therefore, it should not be restricted in any way on account of prejudices or bias.

The dilemma of religious conversion requires to be answered from the background of individual rights and autonomy and the bonds of community in political life. The Libertarians consider individuals as wholly free, rational and capable of self-determination and reserves the right to revise or reject his deeply held convictions about the nature of the good life. Based on this philosophical and jurisprudential understanding, it may be viewed that an individual can revise his religious status if he or she considers it not worth continuing or pursuing.

Freedom of religion and the right to conversion becomes illusory if one were not given the right to change it, at his/her free will. In the national and international scenario, the right to conversion is recognised as implicit in the right to freedom of religion, essential to vitalise it. Even solicitation has been held lawful. The Constitution of India which embodies freedom of religion with the right to propagation as fundamental right certainly recognises right to conversion or change of religion as an inherent inalienable right. Enacted and existing laws must therefore remain subordinated to it.

Forceful conversion is illegal and unacceptable, not entitled to constitutional protection. But this vague expression cannot be used as a measure to deprive the otherwise available constitutional entitlement of the people of this country existing in the form of right to free propagation of one’s belief and faith and the right to determine one’s belief and faith. Freedom of Religion laws of the States should focus on elaboration of the religious freedom rather than its taking away or abridgement. Such legislation must be absolutely neutral and impartial in pith and substance and may not question or cast doubt on the conscience and belief of the believers. Conscience of the believers cannot be oppressed by law and it must be allowed to blossom.

(The writer is a prominent Lawyer, an acclaimed writer and a distinguished academician based in Kochi)
 

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