Critique of the bill by Rajeev Dhawan
Preliminary submissions on Rajasthan Dharma Swatantrya Bill, 2006 by Supreme Court Senior Advocate Rajeev DhawanÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢s `Public Interest Litigation Support and Research CentreÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢
1.1 This is a response to the Rajasthan Dharma Swatantrya Bill, 2006 which has presently been approved by the Rajasthan Cabinet and will be placed in the Legislature for approval.
II WHAT THE CONSTITUTION MAKERS DEVISED: RIGHT TO BELIEF, CONVERSION, PROPAGATION OF FAITH AND FREE SPEECH
2.1 The Constitution makers were concerned with the following fundamental rights:
(i) Freedom of speech and expression [Article 19(1)(a)]
(ii) Freedom of conscience [Article 25(1)]
(iii) Freedom to profess, practice and propagate religion [Article 25(1)]
2.2 While the initial draft of the Constitution did not include the term propagate, after deliberations in the Fundamental Rights Sub Committee, Minorities Sub Committee , the Advisory Committee and the Constituent Assembly, it was concluded that propagation would form a part of the right to religion.
Challenge in the Courts
2.3 This ambit of the Constitutional protection of conversion was examined by the Supreme Court in the Rev. Stainislus case in which the Madhya Pradesh and the Orissa laws were challenged on the ground of violation of Art. 25. The salient features of the judgement are the following:
(i) It held that what Article 25(1) grants is not the right to convert another person to one's own religion by exposition of its tenets."
(ii) It was held that since any attempt at conversion was likely to result in a breach of public order affecting the community at large, the State legislatures would have the competence to enact the legislation.
iii CRITIQUE OF THE rajasthan LEgisLATION: PURPOSE AND INTENT
3.1 In order to critique the Bill, the purpose and intent of the Bill has to be examined. While the malafide of a legislative enactment cannot be challenged, the Supreme Court has rightly held that ÃƒÂ¢Ã¢â€šÂ¬Ã‹Å“the Court can tear the veil to decide the real nature of the statuteÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢. Tearing the veil will show:
(i) the legislative purpose; and,
(ii) its predictable effect
3.2 The Statement of Objects and Reasons of the present Bill states as follows:
It has been observed by the State Government that some religious and other institutions, bodies and individuals are found to the involved in unlawful conversion from one religion to another by allurement or by fraudulent means or forcibly which at times has caused annoyance in the community belonging to the other religion. The inter-religious fabric is weakened by such illegal activities and causes land and order problem for the law enforcing machinery of the State. [Emphasis added]
In order to curb such illegal activities and to maintain harmony amongst persons of various religions, it has been considered expedient to enact a special law for the purpose.
3.3 In the context of restrictions on fundamental rights, public order has specific technical meaning which has been narrowly tailored by the Supreme Court. The Court has held that public order is something more than the mere maintenance of law and order and acts which disturb law and order may not amount to a threat to the public order. Thus, public order is a narrower and more rigid classification of the former and the two cannot be used interchangeably.
3.4 According to the statement of objects and reasons, the introduction of this Bill was desirable and necessary because of the following reasons:
(i) Annoyance caused to a religious community; and
(ii) Law and order problems
Both of these reasons are completely inadequate to justify a restraint of the manner imposed in the Bill especially as:
(i) As has been seen, law and order is not congruous to public order and restrictions cannot be imposed on Constitutional freedoms on the ground of law and order. In the present context, if there are any inter-religious tensions because of conversion, the state has been amply empowered by the Indian Penal Code to deal with such situations. Chapter XV of the IPC gives the State wide ranging powers to deal with law and order problems arising out of religious tensions.
(ii) Annoyance caused to a religious community is completely unacceptable as a ground for restricting Constitutional freedoms. The State is empowered under the IPC and the CrPC to regulate behaviour such as speech, publications, demonstrations, etc which may cause annoyance to religious communities.
IV. DETAILED ANALYSIS OF THE BILL
4.1 Short title, extent and commencement (Section 1)
Most legislative amendments have a provision stating that they shall come into force when the Government, in its discretion, deems fit to notify it by publishing it in the Official Gazette. However, in this case, there is no such discretion as the Bill itself provides that it shall come into force at once. In this respect, the Bill is placed on par with legislations such as TADA, POTA, which involve matters of such grave public implication and urgency such that the Government can have no discretion in them coming into force.
4.2 Definitions Clause (Section 2)
(i) The definition of unlawful is overbroad, circular and open to misinterpretation especially as it is dependant on the other provisions of the Bill, which are in themselves over inclusive and vague.
(ii) This definition of allurement is identical to the definition of the term ÃƒÂ¢Ã¢â€šÂ¬Ã‹Å“inducementÃƒÂ¢Ã¢â€šÂ¬Ã¢â€žÂ¢ in the Orissa Freedom of Religion Act 1967, which was struck down by the Orissa High Court on the ground that it was open to the reasonable objection on the ground that it was too broad and surpassed into the field of morality. While the judgement was later overruled in the Rev. Stainislus case, this aspect of the legislation was not discussed and is thus open to challenge
(iii) The definition of conversion shows the partisan nature of the Bill, which includes conversions, but does not include re-conversions. This means that, for example, conversions from Hinduism to other religions are covered in the section, but not re-conversions back to the original faith. It is pertinent to note that this narrow definition of conversion is an addition in the present Rajasthan Bill.
(iv) The definitions of force and fraudulent are extremely broad and cover a vast number of situations which could possibly be used to include activities of propagation. Any religious propaganda could be considered to be a misrepresentation or force within the meanings of these definitions.
4.3 Criminalization section (Section 3)
(i) This Section has criminalizes conversion or attempt to conversion, directly or otherwise. This is an extremely wide clause and within the scope of attempting, directly or otherwise, a whole range of religious activities can be included, including the propagation of religion.
(ii) It may also extend to cover incidental matters such as conversions according to personal laws. For instance, if a Hindu woman marries a Muslim and converts, and a Meher amount is fixed during the marriage according to Muslim personal laws, this would be covered under this section as conversion by allurement.
(iii) Further, the Section has also placed conversion and attempt to convert has been placed on the same footing, and the punishment is the same for both of them. This is in violation of the principle of criminal jurisprudence (recognized in the Indian Penal Code) that the attempt to commit an offence is less serious that the actual commission of the offence and thus must be differentially punished.
(iv) It also overlooks the various nuances of criminal liability for the abetment of an offence and simply provides a common liability.
4.4 Punishment section (Section 4)
(i) The punishment clause demonstrates the manner in which the Government has tried to criminalize religious conversions. The penalty is harsher than the penalty for offences like rioting, causing death by negligence, wrongful restraint, etc. Such a harsh punishment clause, combined with the broad inclusion in Section 3 creates a situation in which normal religious activities of propagation are hampered.
(ii) As has been mentioned earlier, the Bill ignores the principles of criminal jurisprudence with respect to the criminal liability for attempt and abetment.
4.5 Section 5
(i) While this Section provides for investigation by a senior level Police officer, it removes the prior sanction from the civilian district authorities which had been provided in preceding anti-conversion legislations. This concentration of authority in the hands of the Police and the lack of supervision from the district administration makes the Bill vulnerable to abuse.
(ii) Also, we see that it makes the offence non-bailable and this underscores the attempt of the Government to make any offence under this Bill a grave one.
(iii) There are no other provisions to ensure that the powers are not abused and that due process requirements are met.
(iv) The possibility of abuse of the powers under this Bill, especially at the hands of the Police leads to the Bill directly curtailing the right of religions, especially minorities, to propagate.
5.1 The present Bill can be challenged not only on the ground that is violative of the Constitutional freedoms of speech and religion, but also because it violates secularism, which is a part if the basic structure of the Constitution. In the case of the present legislation, it is clear that the State is actively intervening in a partisan manner to protect a particular religion from a perceived crisis. There can be no doubt that this Bill has been drafted with the legislative intent and purpose of preferring the rights of one religion at the cost of the minority religions. It targets particular communities both to stop efforts to convert and to create a situation of intimidation where others are unwilling to convert. Even in practice, the enforcement of the Bill will amount to community targeting and will be implemented in a manner which will exacerbate communal tensions. Thus, the Bill, both in purpose and in its inevitable effect is a violation of the secular structure of the Constitution.
Vi CONCLUSION AND FUTURE STRATEGY
6.1 It is evident from the foregoing discussion that the present Rajasthan Bill is constitutionally invalid and flawed due to the following:
Ãƒâ€šÃ‚Â· The Bill seeks to impose restrict the right to freedom of religion and speech on the grounds of law and order, which is constitutionally impermissible.
Ãƒâ€šÃ‚Â· The Bill direct and inevitable effect of the Bill is not only to regulate conversions, but also to cripple the right of religions, especially minority religions to propagate their faith.
Ãƒâ€šÃ‚Â· This affects the rights of an individual to be converted, which is a part of the fundamental right to religion.
Ãƒâ€šÃ‚Â· The Bill is partisan in its purpose and intent as it seeks to protect the community from which the conversions are taking place.
Ãƒâ€šÃ‚Â· The provisions of the Bill are over inclusive and provide enough loopholes for abuse of the powers under the Bill.
Ãƒâ€šÃ‚Â· It violates the requirements of due process and ignores principle of criminal jurisprudence.
6.2 In view of the above, the constitutionality of the Bill is open to challenge. The possible objection to this may be the Stainislus judgement of the Supreme Court, but those objections may be addressed as follows:
Ãƒâ€šÃ‚Â· The Supreme Court judgment in Stanislaus was directed towards only forced conversion or coercive conversion and thus has to be strictly interpreted.
Ãƒâ€šÃ‚Â· The judgement has not addressed the particular provisions of the legislations and they still remain open to challenge.
6.3 While the constitutionality of the Bill may be challenged, it is worthwhile as matter of strategy, to keep the following factors in mind:
Ãƒâ€šÃ‚Â· There has to be internal religious reform to create a structure for conversions which demonstrate that the conversion was genuine, informed and without force or coercion.
Ãƒâ€šÃ‚Â· Individual conversions where the intention of the convertee to freely convert can be clearly demonstrated should, as far as practicable, be preferred to mass conversions.
Ãƒâ€šÃ‚Â· As a precaution, it is necessary to work on the presumption of the validity of the Act, when passed, and devise litigation strategies which will minimize to the extent possible the rigors of the same.