MP’s ‘The Freedom Of Religion Bill 2006’ - An Analysis By Fr Anand Muttungal

Bhopal, June 28, 2007, 15.30 Hrs (CBCI News):

The Madhya Pradesh Assembly on 25th July 2006 passed the Freedom of Religion Bill 2006. The Bill was send to the Governor of Madhya Pradesh for approval. The Governor asked the Government to furnish the details regarding the status of conversions taken place in Madhya Pradesh over the last five years. In the beginning of 2007, the Government furnished details from about twenty-five districts. The reports revealed that there were neither forced conversions nor voluntary religious conversions. So the Governor referred this matter to the Solicitor General of India for his opinion. The Attorney General after having gone through the Bill opposed the Freedom of Religion Bill 2006 as unconstitutional.

The Constitution of India Article 25 (1) reads, “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, practise and propagate religion.” This Article guarantees that every person in India shall have the freedom of conscience and shall have the right to profess, practise and propagate religion, subject to the restrictions that may be imposed by the State on the following grounds, such as “Public order, morality and health.” Over the years various state governments introduced anti-conversion bills under the garb of “Freedom of Religion.” Almost all these Bills referred “Public Order” as the reason to introduce the Bill. If these Bills were true to their titles, change of ones faith should have been encouraged. But here the process of a person changing the religion was made more complicated and impossible. Some Hindu fundamental organizations have used these Bills to target the minority communities throughout the country.

The Attorney General commenting on the recent amendment of the Freedom of Religion Bill stated, “The proposed amendments in Section 5(1) to 5(5) of the M.P. Dharm Swatantraya Adhiniyam 1968 are ultra-virus to Article 24(1), 26 and 2(3) of the Constitution of India. It lacks clarity and patent obscurity in Section 5(2) and 5(3) of the proposed amendment. Lack of clarity and uncertainty in the proposed legislation is bound to lead to confusion, which can have the effect of curtailing the right under article 25 in an unreasonable manner.” This has thrown up a debate over the issue of conversion. There were strong objections to the Bill from the secular organizations and like-minded individuals.

The proposed amendment raises some serious questions. Even if a person intending to convert from one religion to another declares before the District Magistrate and the converting priest intimates about the intended conversion before one month and if the report of Superintendent of Police is negative, what is the legal remedy available to the person if the District Magistrate turns down the request? Can he or she go for an appeal? The Bill is silent on the issue. Therefore it is highly unreasonable to expect a person against whom a report is negative to be required to challenge the report. The implication of such an approach is that until the report is set aside by a competent court, the conversion cannot take place. That by itself amounts to unreasonable restriction under article 25.

There is an ambiguity in sub section (3) of Section 5 of the Bill. It is not clear as to what order or action will be made or taken by the District Magistrate on receiving intimation or report from the Superintendent of Police, if a flaw is found in the alleged process of conversion. This also needs to be scrutinized.

Sub section 3 creates a serious problem. On receiving the intimation under sub-section(1) & (2), the District Magistrate is required to inform the details of the proposed conversion to the concerned Superintendent of Police, who is to ascertain through the officer-in-charge of the concerned police station regarding objections, if any to the proposed conversion by local enquiry. Sub section 3 is not happily worded at all. The enquiry is supposed to be with regard to objections if any to the proposed conversion, but it is not even required to enquire whether the conversion is forcible or not. If somebody merely objects to the proposed conversion, does that make it forcible?

Let us look at from another angle. If a Superintendent of Police were to give a favourable report, then there is no problem. But if the Superintendent of police records that there are objections then what happens? Do the persons go ahead with the conversion? The proposed Section 5 does not provide for this contingency at all. If the proposed Section 5 had clearly stated that notwithstanding the adverse report of the Superintendent of police, the conversion can still take place, then the effect of that would be that the person converting could do so and face prosecution under Section 4. The failure to clearly provide for the consequences of any adverse report and the failure to clarify that this would not stand in the way of a conversion would have the inevitable effect of deterring the concerned person from going ahead with the conversion, which will in turn violate article 25 of the Constitution.

The opinion of the Attorney General also makes another point. He says that the above case was not concerned with an “adverse report” and the effects there of on the fundamental right under Article 25. In the instant case, Section 5(3) would act as an unreasonable fetter to the fundamental right under Article 25. The proposed Section 5(3) is open ended. The said sub-section talks of objections if any, an adverse report could be made on the basis of objections which are unrelated to prohibition of forced conversion which is the objective of the Act. In my opinion, the said Sub section 3 cannot be said to be a valid restriction on the ground of public order.

The Attorney General states that there is clear ambiguity in the proposed sub section 5(3). It is unreasonable to bring about a nebulous situation leading to deterring a person from going through and exercising his right to convert on the basis of a negative report based on extraneous factors such as “objections” to the conversion. The failure to provide clearly as to what is to happen in the case of an adverse report renders the proposed clause unreasonable. The wording of Sub section 3 which refers to objections (and not to forcible conversion) is contrary to the spirit of the Act. It would be quite strange that if somebody objects to a conversion then that would be treated as the conversion being forcible.

The BJP Government passed the Freedom of Religion Bill aiming at creating a division among the majority community and minority communities. It also tried to create a fear in the majority community that the Government is trying to protect the religion. It was a clear propaganda by the government of emotional blackmailing of the people by keeping them away from the basic problems of life. This has raised the spirit of secular forces who believe in the secular fabric of our country.

I think it must be enough for the Government to concentrate on the development of the people rather than diverting their attention on petty issues like conversion. I always ask myself, “Can a true believer in God change his / her religion? If they change, can they be true believers in God?” But I always believed that people are free to choose a particular way to experience divine since divine experience varies from religion to religion, sect to sect, from time to time and from space to space.

[Fr Anand Muttungal is the Public Relations Officer and Spokesperson, Catholic Bishops Council of M.P.-C.G]