A MATTER OF FAITH: HOW A SUPREME COURT JUDGMENT IS ENABLING ATTACKS ON CHRISTIANS
J Robin Christopher and Manavi Atri
Amid protests on 23 December 2021, the Karnataka Protection of Right to Freedom of Religion Bill got a nod from the state’s legislative assembly.
Months before the bill was debated, the regional media had begun building a narrative of “forced mass conversions” by Christians, without making a distinction between conversion as a matter of choice and conversions that may be coerced. It portrayed Hindus as victims and demonised even the peaceful gathering of Christians.
On 9 March, the Kannada news channel Dighvijay 24X7 aired an episode titled “Conversion is scarier than Terrorism! Do you know how much money is made when a Hindu converts to Christianity?” The programme was geared towards stoking communal animosity. The anchor, Mamatha Hegde, made references to a Supreme Court decision on the right to propagate—also known as the Stanislaus judgment—to encourage aggressive action against Christians. The 1977 judgment had made a distinction between the right to propagate one’s religion and the right to convert to a different faith.
“Many are not aware of what they must do if a Christian priest approaches them,” Hegde said. “Please know that you must all call the police and give a complaint. Tell the police that they are trying to convert. If ten people get punished, then the eleventh person will not come. If we do not show courage, if we do not protect our religion, then none of this will stop. In 1976, even the Supreme Court said that right to propagate does not mean the right to convert.”
The anchor effectively set up the bogeyman of forced conversions—the kind of alarmist rhetoric we are beginning to now see more regularly—to vilify Christians. That month, there were six incidents falsely accusing Christians of conversion. On the day the show was aired, a Hindu mob barged into a private hall in Karnataka, harassed and intimidated people who had peacefully gathered to pray and accused them of carrying out forced mass conversions. Some of these incidents were recorded on mobile phones and telecast on Dighvijay and similar online portals.
There are a few critical questions worth asking. How did the Stanislaus decision come about, and what has been its impact on the ground? How does it sit with Article 25 of the Constitution, which guarantees “free profession, practice and propagation of religion”? Even during the drafting of the Constitution, there was a rich debate on the right to propagate. It had strong support in the Constituent Assembly. But the thinking that brought Article 25 into effect was eviscerated by the Supreme Court decision in Stanislaus.
Following the Stanislaus judgment, a number of states have adopted freedom-of-religion laws, including Haryana and Karnataka. Nearly half a century later, the decision is enabling attacks on minorities, particularly Christians. According to a report by the People’s Union for Civil Liberties, in 2021 there were at least thirty-nine incidents of hate crimes against Christians in Karnataka until November that year.
In 1977, the Supreme Court clubbed together two appeals that challenged the Orissa Freedom of Religion Act of 1967 and the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968. The Supreme Court felt that the two appeals had common issues and the acts under challenge were identical in the provisions relating to forcible conversion. However, the two appeals presented different problems stemming from different situations.
The Madhya Pradesh Dharma Swatantra Adhiniyam was enacted “to provide for prohibition of conversion from one religion to another” and mandated that state authorities be informed of any conversion. Stanislaus, a Christian priest from Raipur, refused to register conversions and, as a result, was facing criminal prosecution under the act. He filed a petition in the Madhya Pradesh High Court, arguing that it was not in the state legislature’s ambit to enact such a law and that informing the authorities about a change of faith amounted to testimonial compulsion—being coerced to give testimony often against your own self. However, the high court rejected this argument, ruling that this was a matter of public order.
In Yulitha Hyde and Others vs the State of Orissa, the petitioners challenged the constitutionality of the Orissa Freedom of Religion Act. Two of the four petitioners were priests engaged in evangelisation. The Orissa High Court closely examined the processes that a change of faith involved. It noted that the petitioners imparted religious instruction to the conversion-seeker, who could convert only after confirming that they understood the tenets of the religion. Based on a biblical understanding of Christianity, the court concluded that it is the religious duty of every Christian to propagate their religion.
The Orissa High Court further concluded that Article 25, which guarantees the freedom to practise and propagate any religion, also covered conversion. It held that reasonable restrictions within Article 25 were sufficient to counter acts of conversion by force or fraud. The court critiqued the Orissa act as being too vague with its definitions and, therefore, criminalising all proselytising activities. It viewed the prohibition on propagation as against the spirit of Article 25. Most importantly, the court ruled that the legislation was regulating faith, which is not a matter listed in the Constitution’s list of state subjects.
AN Ray, the Supreme Court justice who wrote the Stanislaus judgment, chose to address only the issues raised in the Madhya Pradesh appeal and sidestepped the tedious task of reasoning against the conclusions of the Orissa High Court. As a result, the Supreme Court ignored the latter’s concerns over inequality, violation of privacy and autonomy. During the Emergency, when even the right to life was under judicial scrutiny, it is perhaps unsuprising that the Supreme Court took the stance it did on the right to propagate as a fundamental right. It decided to rule only on whether the Madhya Pradesh and Orissa laws violated Article 25 and whether the state legislatures were competent to enact such laws.
The judges of the Supreme Court had to infer what the term “propagation,” as used in Article 25, meant. It would have been expected of the judges to apply judicial principles to ascertain the term’s meaning. Instead, the judges focussed only on the dictionary definition of the word and failed to make any reference to the extensive Constituent Assembly debates. Though Article 25 explicitly deals with the regulation of faith, placing curbs on an individual’s agency and choices, the judgment refused to acknowledge the issue’s complexity. It simply stated that propagation would mean efforts to transmit the tenets of the religion. This vague definition was framed to safeguard the interests of “other citizens.” Who these other citizens were was not explicitly stated. The judgment failed to acknowledge the sense of agency vested in a citizen to make choices as an adult. By taking away conversion from the heart of Article 25, it diminished the experience of spiritual engagement associated with faith—as highlighted by the Orissa High Court—and added more uncertainty to the issue.
The position and understanding of the Orissa High Court in Yulitha Hyde recognised conversion as part of Article 25 and acknowledged faith as an essential support system for those seeking to convert. It presented a nuanced understanding of public order and prioritised the right of a citizen to choose their faith, unhindered by state or non-state actors.
The right to propagate had been abundantly debated both in the Constituent Assembly and in its subcommittees on fundamental rights and minorities. BR Ambedkar was pivotal in drafting Article 25. His articulation of the right to freedom of religion included the right to preach and convert within limits compatible with public order and morality. His own life trajectory embodies a commitment to the idea that one must have the freedom to convert as an essential part of one’s fundamental rights.
KM Munshi, another member of the Constituent Assembly, attempted to include a clause explicitly barring conversion by way of fraud, coercion or undue influence. In response, M Ruthnaswamy pointed out that certain religions such as Christianity were proselytising faiths, and provisions should be made to permit them to propagate their beliefs in accordance with their tenets. Chakravarti Rajagopalachari also questioned the necessity of a provision barring conversion by coercion, which was already covered by the Indian Penal Code. This is a question that is still pertinent today in the context of the freedom-of-religion laws.
The advisory committee looked at the recommendations of the sub-committees on minorities and fundamental rights. It then voted in favour of including the right to propagate in what eventually became Article 25. It also deleted the clause barring conversions by fraud, coercion or undue influence.
Loknath Mishra strongly objected to the right to propagate, calling the article a “charter for Hindu enslavement” and the “blackest part of the Draft Constitution.” In response, K Santhanam emphasised that propagation was “merely a freedom of expression.” The heart of the article, he said, was “toleration of all—irrespective of religion, subject to public order, morality and health.”
This also had implications for other faiths. TT Krishnamachari pointed out that “it is perfectly open to the Hindus and the Arya Samajists to carry on their Suddhi propaganda as it is open to the Christians, the Muslims, the Jains and the Buddhists and to every other religionist, so long as he does it subject to public order, morality and the other conditions that have to be observed in any civilized government.”
Krishnamachari also spoke of some of the reasons people choose to convert. Many Indians had embraced Christianity partly due to the status afforded to them, he said. “An untouchable who became a Christian became an equal in every matter along with the high-caste Hindu, and if we remove the need to obtain that particular advantage that he might probably get—it is undoubtedly a very important advantage, apart from the fact that he has faith in the religion itself—well, the incentive for anybody to become a Christian will not probably exist.”
“Propagation does not necessarily mean seeking converts by force of arms, sword, or coercion,” Lakshmi Kant Maitra said. “But why should obstacles stand in the way if you could convey your own religious faith to others by exposition, illustration and persuasion,” he asked. “I do not see any harm in it. And I do feel that this would be the very essence of our fundamental right, the right to profess and practise any particular religion.”
These proceedings make it abundantly clear that the Constitution’s framers considered the right to propagate crucial to the right to profess and practise religion. Clearly, the decision in Stanislaus is at odds with the well-reasoned deliberations held in the Constituent Assembly while passing Article 25.
After the Stanislaus decision clamped down on the right to propagate faith, the Himachal Pradesh High Court was the first to look into the rights of those seeking to convert and produce an understanding different from that of the Supreme Court. In Evangelical Fellowship of India vs State of Himachal Pradesh, the court recognised the right of an individual to change their faith and the right to keep their beliefs secret. “Why should any human being be asked to disclose what his religion is?” the judgment stated. “Why should a human being be asked to inform the authorities that he is changing his belief?” It went on to state that, “in case of a person changing his religion and notice being issued to the so called prejudicially affected parties, chances of the convertee being subjected to physical and psychological torture cannot be ruled out. The remedy proposed by the State may prove to be more harmful than the problem.” The court also distinguished between larger public interest and majoritarian interest, arguing that minority views must not be silenced.
The Stanislaus decision failed to address this issue of informing the state. However, owing to the Supreme Court’s seniority, the high-court decision could not rectify its grave errors. The reasoning of Stanislaus is further diluted by recent judgments such as Puttaswamy and Shafia Jahan, which upheld the fundamental rights to autonomy and privacy. It is time to revisit this decades-old judgment, produced during the Emergency, and understand what it is enabling against minorities in the present day.
J Robin Christopher is an advocate based in Bengaluru. He does research on issues relating to freedom of religion in India.
Manavi Atri is a human-rights lawyer working on media accountability and Hindutva violence in Karnataka. She is a member of the People’s Union for Civil Liberties and the Campaign Against Hate Speech, and has co-authored reports about communal policing, attacks against religious minorities and hate speech.
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