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Right to freedom of Religion vs Religious Conversion

Written by: Deepak Miglani L.L.M. M.D.U. Rohtak / Dinesh Miglani L.L.B Graduate from Delhi University
Partnership laws in India
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  • Religious conversion has become the subject of passionate debate in contemporary India. From the early 20th century onwards, it has surfaced again and again in the political realm, in the media and in the courts. During the last few decades the dispute has attained a new climax in the plethora of newspapers, journals, and books whose pages have been devoted to the question of conversion. Apparently, a large group of Indians considers this to be an issue of crucial import to the future of their country.

    Generally Speaking, Religion is s system of faith and worship of supernatural force which ordains regulates and control the destiny of human kinds.

    The Merrian Webster Dictionary defined , Religion as an organized system of faith and worship, a personal set of religious belief and practice, a cause, principle or belief held to with faith and order.

    The Oxford Dictionary defined, Religion the belief in a super human controlling power, especially in personal God or Gods entitled to obedience and worship.
    Swami Vivekananda perceives religion as - it is based upon faith and belief and in most cases consist only of different sect of theories that is the reason why we find all religion quarreling with each other.1

    According to Sage Aurobindo, The quest of man for God is the foundation for religion & its essential function is the search for God and the finding of the God. 2
    Hinduism in the view of Dr. Radhakrishan is The main aim of the Hindu faith is to permit image worship as the means to the development of the religious spirit to the recognition of the Supreme who has his temples in all beings.3

    We can conclude from the above discussion that no universally acceptable definition as to what exactly "religion" is. There appears to be near unanimity that religion, generally, is a belief or faith in the existence of a Supernatural Being and the precepts which people follow for attaining salvation.

    Religion may be regarded as belief and patterns of behaviors by which human try to deal with what they view as important problems that can not be solved through the application of known technologies and techniques of organization. To overcome these limitations people turn to the manipulation of supernatural beings and powers.

    Religion consist of various rituals, prayers, songs, dances, offerings and sacrifices, through which people try to manipulate supernatural beings and powers to their advantages. These being and power may consist of Gods and Goddesses, ancestral and other spirits or impersonal power either by themselves or in various combinations . In all societies there are certain individuals especially skilled at dealing with these beings and powers and who assist other members of society in their ritual activities. A body of myths rationalizes or explains the system in a manner consistent with peoples experience in the world in which they live.

    Every individual has a natural entitlement of religious faith and freedom of conscience , a right to adopt or abandoned any faith of his own choice. In this sense freedom of religion and freedom of conscience is fundamental right both constitutionally and conventionally.

    The freedom of religion and freedom of conscience has been recognized under the international law. The General Assembly of united nations adopted without dissenting vote on 10th December,1948 the Universal Declaration on Human Rights recognizing fact that the entire humanity enjoys certain alienable rights which constitute the foundation of freedom, justice and piece in the world.

    In order to give effect to the Universal Declaration of human rights the members of the united nations of also adopted the two conventions in 1966 in this concern:-
    1. International Covenant on Economic, Social and Cultural Rights.
    2. International covenant on Civil and Political rights.
    The Government of India by its declaration dated 10.4.1979 had accepted Universal Declaration of Human Rights and the two international covenants with certain reservations which do not cover the right to freedom of religion. Apart from this the Constitution of India also enshrines the freedom of religion and freedom of conscience as fundamental rights under Article 25,26,27,28,30.

    Religious Conversion is multifaceted and multi dimensional phenomenon. Indian society is a pluralist and heterogeneous society with multiplicity of races, religious cultural, castes and languages etc. Religious Conversion has always been a problematic issue in India. Every incident of conversion causes lot of hue and cry in society; especially it causes nostalgic feelings to Hindu organization because of its inherent socio- political. Rigid and Stringent caste system prevailing in Hindu Religion is one of the most significant factors behind the religious conversion. This is because of this caste system Dalits ( in most comprehensive and inclusive sense the word Dalit includes Untouchables, Shudras and Adivasis) are the most susceptible section of the society to religious conversion . The other causes of conversion are
    1. Polygamy which is prevailing in Islam
    2. To get rid of unwanted matrimonial ties.
    3. To get reservation benefits.

    Polygamy is a system wherein a male person his authorized to keep more than one wife/wives where all the other wife/wives are still alive, or where a male person is authorized to solemnize more than one marriage. Polygamy is just opposite to the system of monogamy. In the past almost all the societies in the world have been either polygamous or polyandrous. Monogamy was never a rule but an exception. Amongst all the religions resourceful persons were allowed to keep as many wives as he can afforded. But Islam has been exception to his general rule. The Prophet Mohd. ( 571 AD-632 AD) the last messenger according to Quaran laid down the principle for his followers that a person may keep as many as four wives only and that too only in exceptional circumstances prevailing in those days.

    The Prophet had allowed the followers of Islam to keep four wives at one time because of the contemporary reasons. During the life of Prophet the Arabian society was the society of innumerable tribal communities and war was constant phenomenon of those days in Islam. Hundreds of wars were fought amongst those tribals can themselves, sometimes in the name of Jehad, sometimes in the name of religion, sometimes for the sake of established political hegemony. Only men were allowed to participate in the wars and not the women. One of the obvious consequences of these wars was that innumerable women became widows. One of the most burning problem before the prophet was that how to manage the lives f these destitute widows and the children. Nobody was there take care for these helpless widows and children. So the prophet evolved out a workable solution of the problem. He permitted the men that every man would keep as many as four wives along with their children. So that no widow or child would die out hunger starvation or illness. Through the system every widow and her children were taken care of.

    Here two important points are worth mentioning that:
    1. The permission given by the prophet to keep more than one wives was not a permanent prescription for all the times to come. But it was only a temporary provision just to manage the cotemporary problems. Along with the provision of keeping for wives the prophet imposed a mandatory conditions upon the persons who might keep more that 1 wife that if a person keeps more than one wife he must have an equal eye upon all the wives. That is the principle of equality which was to be observed and not to discriminate on any grounds whatsoever.

    2. Keeping more than one wife was not prescribed as general rule. But only an exception and that is only to deal with the above mention contemporary problem. But after the life of the profit, the Muslim leaders especially in India have misinterpreted the dictates of the prophet in his concern and started receiving undue advantage of this dictate of the prophet. Muslim religious leader and Ulemas have maintained that the dictate of the prophet to keep four wives was not a temporary provision rather it was a permanent dictate for all time to come. This is how they have misconceived the dictates of the prophet and justified and legitimized polygamy almost 1500 years after the life of the prophet.

    It is significant to mention that the practice of polygamy has been abolished even in the constitutionally declared Islamic states long ago but in India this practice is still valid under the Muslim personal law. It is also pertinent to mention that the practice of polygamy is anti feminist and it is discriminatory against Muslims women because polygamy is a unilateral right provided only to Muslim men. Therefore, it is suggested that the privilege of polygamy should not be given Muslim community under their personal laws and uniform civil code is the need of the hour.

    The Impact of Religious Conversion
    The religious conversion into Islam by a person from non Islamic faith is not valid if the conversion is done for the purpose of polygamy. Neither Islam nor the law recognizing any such conversion in India. In the case of Sarla Mudgal vs Union of India4 a married Hindu male converted in to Islam for the sake of solemninising another marriage as polygamy is permitted in Islam. The Hon’ble SC held that conversion in to another faith Ipso-facto does not dissolve the first marriage because no one is allowed to take the benefit of his own wrong. Moreover the court held that the married person converting into Islam is not entitle to marry another woman after conversion. It was held to be an act of bigamy prohibited U/S 17 of Hindu Marriage Act, 1955 and punishable U/S 494 of IPC and it was further observed that the second marriage is void.

    In Vilayat Raj vs Smt. Sunita 5 it was observed by the court that if both the parties to the marriage were Hindu at the time of marriage , pre-nupital law i.e. Hindu Marriage Act applied even after conversion in Islam.

    In Lilly Thomas vs Union of India 6 it was observed that an apostate husband is guilty of bigamy U/S 494 of IPC if he marriage another woman after converting into Islam. It was observed that holding such person guilty of bigamy is not violation of freedom of religion U/Article 25 of the Constitution, hence, Section 17 of H.M.A. 1955 is applicable.

    From the above it is clear that after the pronouncement of the aforesaid judicial verdicts, polygamy is no more a valued person for religious conversion into Islam.
    A person does not ceases to be Hindu nearly because he declares that he has no faith in his religion. A person will not cease to be Hindu even if he does not practice his religion till he does not renounces his religion or starts living and behaving like an atheist or agnostic or starts eating beef or insulting God or Goddesses. He does not ceases to be member of the religion even if he starts expressing his faith in any other religion , he continuous to be a Hindu Chandra Shekharan vs Kulundurivalu7

    If a person converts from Hindu religion to Sikh , Budhism or Jainism he does not cease to be Hindu since all these religions do not fall beyond the definition of ‘Hindu’ in the relevant section of Hindu Marriage Act . He ceases to be Hindu if he converts into Islam Christianity or Jews or Zoroastrain, conversion into these religion is a ground for desolation of marriage for the other spouse and not for the spouse who converts into any such religion ( U/S 13 H.M.A).

    Under Section 80 of the Hindu Adoption and Maintenance Act, 1956 if the husband gets converted into Non-Hindu faith wife is entitled to live Separately without forfeiting her right of maintenance but if she herself also ceases to be Hindu, she looses her claim of maintenance under the section, But she is entitled under section 24 of H.M.A in 1955 for pedente-lite and permanent alimony.

    Special Marriage Act 1954 reflects the true sprit of Indian Secularism as it is in consonance with India ‘s heterogeneity and multiplicity of religious faith. Conversion does not make any effect on matrimonial ties as the Act is the secular legislations and itself contemplate inter caste and inter religious marriages.
    The Indian Divorce Act, 1869- If the husband gets converted into non Christian faith, wife is entitled for divorce but vice versa is not possible. If wife gets converted into non Christian faith husband can not apply for divorce. NANG vs LABYA8

    Under Dissolution of Muslim Marriage Act, 1939 Section 4 says if a wife renounces Islam, the marriage does not Ipso-facto dissolve unless the circumstances warrant otherwise.

    The picture is complete if we account for the fact that most of these laws are aimed to keep the low caste Hindus within the fold of Hinduism. And so while law prohibits conversion, 're-conversion' of low caste Hindus is permissible. If a low caste Hindu who had converted to another faith or any of his descendants reconverts to Hinduism, he might get back his original caste In Kailash Sonkar. 9

    Major Events of Conversion

    Major events of conversion are not reported unless they are highlighted by media or a hue and cry is made by Hindu Organization. Following are the major incidents of religious conversion in post independence.

    Nagpur:- The Ist and the biggest mass conversion which the country has ever witnessed, took placed on the 14th day of October 1956. Place Nagpur, Maharashtra, the city where the headquarter of Rastriya Swayamsewak Sangh is situated. About a half a million Dalits said good bye to Hinduism from their life and embraced Budhism under the leadership of the greatest social reformer, the great visionary and the prophet of Dalit emancipation Dr. B.R. Ambedkar.
    Meenakshipuram:- The significant event of religious conversion took place on Feb 19th 1981 at Meenakshipuram of Kanyakumari District in Tamil Nadu. Where 280 families got converted to Islam. All of these 280 families cited social reasons behind their conversion. These reasons were persecution, ill treatment and humiliation they constantly had to face at the hands of upper caste of Hindus which made their lives miserable and worst than animals.

    Dulina :- Another significant even t of religious conversion which created a lot of hue and cry in the society took place at Gurgaon, Haryana 2002. This all had happened after a very pathetic incident of burning Five Dalits Alive by a mob of upper caste people in a police station at Dulina in Jhajjar District in Haryana. Police remain silent spectator. Now nothing was left for the families of these massacred Dalits to remain in such a violent and hatred preaching system of faith, where in Dalit have no place. All the five families of massacred Dalits got converted in to Buddhism at Rabidas Mandir, Gurgaon, Haryana on 28th October 2002 under the banner of All India Confederation of SC/ST organization and the Lord Buddha club in the presence of famous film director, All India Christian Council , Jamait Ulma-I Hind and in the presence of Media Persons.

    Another dimension of this event of conversion is that after these event of conversion all the Saffron Hindu Organizations rushed to these families and threatened them to face dire consequences on account of the above said conversion. Due to assaults and threats and under the pressure of these Hindu Organization, ultimately, these sacred Dalit Families broke down and had to make a public statement that we did not leave Hindu religion , we did not convert.

    In July 2002 another incident of religious conversion took place Guntur distt. Andhra Pardesh were 70 Dalits converted in to Christianity.

    Delhi:- In the year 2002 Udit Raj the Chairman of All India Confederation of SC/ST Organizations and the Lord Buddha Club give a national wide call for conversion. This conversion ceremony was supposed to be performed at Ram Leela Maidan of Delhi . Around one million Dalits were supposed to get convert into Buddhism.

    The preparation regarding the conversion programme were on . This nation wide call for the conversion got an unprecedented coverage in national and international media. Dehydration to saffron Hindu organization regarding such a massive programme of conversion, was oblivious. These organization resorted all means to shut of the mouth of media , so that this call may not reach the public at large. The Ram Leela Maidan , where the programme was supposed to be organized , declared as prohibited area and Section 144 of Crpc was imposed in and around the area, all borders of Delhi where from influx of Dalits, to take Diksha, was possible were sealed. The Government was determined to ensure by hook or by crook let the programme may not be organized. Finally, the organizer had to change the spot for the proposed programme . The Government could not succeed to curb the enthusiasm of dalits and ultimately more than 10,000 Dalits succeeded to say good bye to Hinduism and embraced Buddhism.

    Right to freedom of faith is not a conferred right but a natural entitlement of every human being. In fact law does not assign it but it asserts, protect and insurers its entitlement. Indian Society has nourished and nurtured almost all the established religion of the world like Hinduism , Islam, Christianity, Buddhism, Jainism, Sikhism etc. from it s time immemorial. Article 25 incorporates right to practice, profess and propagation of faith not only this , the Article guarantees the freedom of conscience. Right to possess adopt abandoned faith is ascribed by a person since his birth. India is a heterogeneous and pluralist society with multiplicity of faith and cultures. India most fundamental code of governance. i.e. The constitution of India also asserts, protects and ensures this right to all individuals irrespective of their religions, under its various provisions especially Art. 25.

    Every human being has a natural entitlement of religious faith and freedom of conscience and right to adopt or abandon any faith of his own choice. This being so , the freedom of conscience has been recognized as a basic human right both constitutionally and conventionally.

    The Constitution of India aims at securing freedom of religion and freedom of conscience under Article 25 ,26,27,28,30 and at the same time it seeks to create a harmony among all religions. Being suitable to the pluralistic society and historical lineage . Such freedom needs to continued. Any other policy will not be unconstitutional but also extremely harmful and suffocative for the public. It. However, need to be realized that an incessant process of transformation and change is also going on as change is the rule of nature.

    The ideas , faith, psyche, behavior and attitude of people have always been subject to change, though, the factors of change are spatial and temporal. An important aspect with respect to change of faith is the state of One’s awareness and ignorance. More awareness and enlightenment does definitely have an impact on the thought, belief and action of a person, faith and elements of conscience. Thus as regards conscience , state of knowledge is itself under a constant process of change and every human being is undergoing a metamorphosis of understanding with continuing with continuing process of experience of life and learning . Therefore , it is advisable to tie up someone to a particular faith for all the times.

    But in Indian perspective , an aspect of freedom of conscience which has attained a problematic dimension , is the right to propagate faith. The meaning of propagation is to promote , spread and publicize one’s relating to his own faith for the edification of others. The term propagation implies persuasion and exposition without any element of fraud, coercion and allurement. The right to propagate one’s religion does not give a right to convert any other person to one’s own religious faith. It may be pointed out that the right to convert other person to one’s own religion is distinct from and individual right to get convert to any other religion on his own choice. The later is undisputedly is in conformity with the freedom of religion and freedom of conscience under Article 25 of the constitution while the former is the subject of long prevailing controversy with reference to propagation of faith.

    Religious conversion has always been a very sensitive social issue not only because of the reasons that it has psychological concerns of religious faith but also because it has wider socio-legal and socio-political implications. It has also been revealed by the recent incident of conversion in Haryana, Madhya pardesh , Tamil Nadu, Gujarat , Orissa and in Delhi ( in Delhi according to official sources around 20,000 dalits got converted in to Buddhism in the year 2002 under the nation a wide call for conversion by Udit Raj , the leader of Justice party). On the one hand due to these recent incidents of conversion the Hindu Safforn Organizations like R.S.S., V.H.P., Shiv Sena , Bajrang Dal. etc. have made a lot of hub-bub and not only this Mr. Atal Bihari Vajpayee, the former prime minister call for a nation wide debate on conversion

    The legislative history relating to the issue of conversion in India underscores the point that the authorities concerned were never favorably disposed towards conversion. While British India had no anti-conversion laws, many Princely States enacted anti-conversion legislation: the Raigarh State Conversion Act 1936, the Patna Freedom of Religion Act of 1942, the Sarguja State Apostasy Act 1945 and the Udaipur State Anti-Conversion Act 1946. Similar laws were enacted in Bikaner, Jodhpur, Kalahandi and Kota and many more were specifically against conversion to Christianity. In the post-independence era, Parliament took up for consideration in 1954 the Indian Conversion (Regulation and Registration) Bill and later in 1960 the Backward Communities (Religious Protection) Bill, both of which had to be dropped for lack of support. The proposed Freedom of Religion Bill of 1979 was opposed by the Minorities Commission due to the Bill's evident bias.

    However, in 1967-68, Orissa and Madhya Pradesh enacted local laws called the Orissa Freedom of Religion Act 1967 and the Madhya Pradesh Dharma Swatantraya Adhiniyam 1968. Along similar lines, the Arunachal Pradesh Freedom of Religion Act, 1978 was enacted to provide for prohibition of conversion from one religious faith to any other by use of force or inducement or by fraudulent means and for matters connected therewith. The latest addition to this was the Tamil Nadu Prohibition of Forcible Conversion of Religion Ordinance promulgated by the Governor on October 5, 2002 and subsequently adopted by the State Assembly. Each of these Acts provides definitions of `Government', `conversion', `indigenous faith', `force', `fraud', `inducement' (and in the case of Arunachal, that of `prescribed and religious faith'). These laws made forced conversion a cognizable offence under sections 295 A and 298 of the Indian Penal Code that stipulate that malice and deliberate intention to hurt the sentiments of others is a penal offence punishable by varying durations of imprisonment and fines.

    As early as 1967, it became evident that the concern was not just with forced conversion, but with conversion to any religion other than Hinduism and especially Christianity and Islam. In the Orissa and Madhya Pradesh Acts, the punishment was to be doubled if the offence had been committed in respect of a minor, a woman or a person belonging to the Scheduled Caste or Scheduled Tribe community.10

    Moreover, Jayalalitha government in Tamil Nadu has gone to the extent of enacting ant-conversion legislation (Tamil Nadu prohibition of forcible conversion ordinance 2003) to put a check on the incidence of religious conversion. In April 2006 The Rajasthan Dharma Swatantrata (religious freedom) Bill, introduced by the BJP government, was passed by a voice vote. The Chattisgarh Government passed an anti-conversion bill in form of Chattisgarh Religion Freedom (Amendment) Act, 2006 providing for a three-year jail term and a fine of Rs.20,000 for those indulging in religious conversion by force or allurement. The Madhya Pradesh Government also passed a controversial bill to amend the state's Freedom of Religion Act of 1968 to prevent religious conversion by force or allurement.
    The contention of the Hindu organization is that most of the minority religious organization, especially, Christian Missionaries are actively involved in the activities of mass religious conversion in the name of social service. According to them the target groups of these Christian missionaries are generally illiterate and poor Dalits and Poor tribes.

    On the other hand many dalit organizations and Dalit thinkers have perceived these recurrent incidents of religious conversions as great events of Dalit emancipation from the clutches of the vicious Hindu Caste System which is and has been a constant stigma on the face of Indian society. According to them, Hindu Caste System is founded on rigid and the stringent Caste hierarchy . Due to this inhuman and hate worthy Caste system Dalits and Shudras (Untouchables) have always been treated inhumanly, they have been subjugated, oppressed and persecuted by the so called upper caste Hindus or Manu vadis in the name of caste. Dalit thinkers also allege that Hindu Soceity could not make a adequate reforms in Hindu religion during last more than 3000 years , so that a lower caste Hindu could not live with human dignity in Hindu religion.

    According to them majority of Dalits and shudras (untouchable) are illiterate deplorably poverty stricken and living in sub- human conditions. They have been denied basic human rights even after 59 years of independence, Moreover, in day today life they often to face atrocities and exploitation at the hands of upper caste Hindus in the name of caste. Hindu religion does not treat its all follower alike, Hinduism discriminates against one segment of its followers vis--vis the other and does not treat all of them equally. It has failed to provide social dignity to dalit and shudras. Therefore, they think that it is better to kick our such an obnoxious and suffocating religion from one’s life and to convert in a religious which does not discriminate against them in the name of caste and which given them equal treatment and dignified human life. That is why Dalits and other progressive minds have supported the incidence of mass religious conversion and consideration them to great events.

    We can conclude from the above discussion that any protest against religious conversion is always branded as persecution, because it is maintained that people are not allowed to practice their religion, that their religious freedom is curbed. The truth is entirely different. The other person also has the freedom to practice his or her religion without interference. That is his/her birthright. Religious freedom does not extent (sic) to having a planned programme of conversion. Such a programme is to be construed as aggression against the religious freedom of others.

    Finally, as far as Hinduism is concerned, besides it being vindicated as a way of life, efforts must be made to augment its role as a form of religion, that is, Hinduism must be practiced as a religion that upholds the principles of personal freedom, self-dignity, social equality and economic security. This will reduce the chances of transgression by way of conversion in any manner. Scriptures like the Vedas, Upanishads and the Gita should gather larger weight age and reach the necessary quarters for sufficient lobbying to match the access and emotional respect gained by the Bible and the Koran. The image of a Hindu will go up not by blaming others for conversion but by creating conditions that will make conversion by and large unnecessary for the fellow members of his religion.

    Foot Note:-
    1. The Complete Words of Vivekananda, (1),P. 127
    2. Shri Aurobindo-The Life Divine , P. 699
    3. Dr. Radhakrishnan-Religion and Society, P. 103
    4. AIR 1995 SC
    5. AIR 1983 SC
    6. AIR 2000 SC
    7. AIR 1963 SC 185
    8. AIR 1924 , Rangoon , 263
    9. (1984) 2 SCC 91
    Anti Superstition Law

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