At a time when the state government is bent on regulating religious propagation and mobs are barging into homes to expose conversions, it is vital to probe the scope of religious freedom under the Constitution. The Karnataka Protection of Right to Freedom of Religion Bill, 2021 is at the heart of the government’s contentious attempt to regulate religious propagation. Though it currently lacks legal force, the Bill has shaped the public discourse on propagation and conversions. To discern the implications of the proposed law, we ought to be conscious of our constitutional scheme and the vision of the Constitution’s framers.
Article 25 of the Constitution of India categorically recognizes the fundamental right to freely propagate religion and places it on par with the right to freely profess and practise religion. Religious propagation is marked by the communication of religious ideas and drawing attention to the tenets of religion so that people get acquainted with the religion or feel attracted to it. The word ‘propagate’ was not inadvertently added to the text of Article 25. When the draft was being discussed in the Constituent Assembly, a few members opposed the idea of protecting the right to propagate religion as a fundamental right. For instance, Loknath Mishra opined that it would be ‘dangerous and uncanny’ to treat propagation as a fundamental right and encourage it.
However, members like K Santhanam eruditely argued that religious propagation was a facet of the freedom of speech and expression. He stressed the fact that the right to propagate religion was not absolute as the Article recognized the State’s power to impose restrictions to protect health, morality, public order and other fundamental rights. Eventually, the proposed amendment to drop ‘propagate’ from the draft was negatived.
The reason why the proposed law can imperil the fundamental right to propagate religion is the criminalisation of conversion and the problematic definition of allurement. Allurement has been sweepingly defined as an ‘offer of temptation’ and includes glorifying a religion against another religion; tempting people with a better lifestyle, any gift or material benefit, employment, free education in an institution run by a religious body, etc. Converting a person by allurement or attempting to convert is punishable with imprisonment of upto ten years.
Criminalising glorification of religion is an assault on the fundamental right to propagate religion. As discussed earlier, this right may be restricted only to protect public order, health, morality, and other fundamental rights. None of these grounds justifies imprisoning a person for glorifying a religion. Similarly, the fundamental right to freedom of speech and expression enshrines a person’s right to glorify a religion and even criticise other religions, provided such criticism is not a malicious attempt to insult or outrage religious feelings.
It is equally absurd to criminalise tempting people by informing them about the possibility of a better lifestyle. Suppose a person informs victims of untouchability and other demeaning religious practices that they can escape suffering and humiliation by converting to another religion, he may be jailed. Let us not forget that even Dr Ambedkar had openly urged Dalits to convert to avoid humiliation. A less asserted right is the fundamental right to freely receive information. The rationale behind this right is to enable citizens to engage with a variety of ideas and make informed choices.
The Bill’s vague and expansive language enables the police and interlopers to interfere with even legitimate activities. For instance, the definition of allurement encompasses an ‘offer of any temptation’ which includes any gift or gratification. The charitable activities of religious organizations can be easily branded as an attempt to allure people towards their religion by tempting them with the services or items offered. This coupled with Bill’s reversal of the burden of proof by expecting the accused to prove their innocence, will have a detrimental impact on civil liberties.
Tackling forcible or fraudulent conversions does not require a law that imposes draconian restrictions on the fundamental right to freely profess, practise and propagate religion. The existing criminal laws already prohibit the use of coercion, force, and religious misrepresentation to make people convert or perform any act against their will. The proposed law will only encourage interference in private affairs and create a chilling effect on free speech.
(The writer is a lawyer)