•  Write the author
 •  Legislation
 •  Tamilnadu
 •  Printer friendly version Convert, and be damned!
In a special issue of Combat Law magazine, V Suresh and Shankar Gopalakrishnan detail the politics of the Tamilnadu Anti-conversion enactment.

Combat Law, Issue 7 - What was said in the Constituent Assembly on December 6, 1948 (i) during the debate preceding passage of Article 19 (ii), guaranteeing the fundamental right to religion which includes the right to propagate religion: "Objection has been taken to the inclusion of the word "propagate" along with the words "profess and practice" in the matter of religion. ….it is not a question of taking away anybody's rights. It is a question of conferring these rights on all citizens …the fact that many people in this country have embraced Christianity is due partly to the status that it gave to them. Why should we forget that particular fact? 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 advantage, apart from the fact that he has faith in the religion itself-well, the incentive for anybody to become a Christian will not exist". - T.T. Krishnamachari.

"..I was a party from the beginning to the compromise with the minorities which ultimately led to many of these clauses being inserted in the Constitution ...the Indian Christian community laid the greatest emphasis, not because they wanted to convert people aggressively, but because the word "propagate" was a fundamental part of their tenet…I am sure, under the freedom of speech which the Constitution guarantees it will be open to any religious community to persuade other people to join their faith. So long as religion is religion, conversion by free exercise of conscience has to be recognized. The word 'propagate' in this clause is nothing very much out of the way as some people think, nor is it fraught with dangerous consequences". - K.M. Munshi (iii).

On October 5, 2002, the Tamilnadu Government promulgated the Tamilnadu Prohibition of Forcible Conversion of Religion Ordinance, 2002 criminalizing what it called "conversion" by "use of force or by allurement or by any fraudulent means". The sudden and inexplicable passage of the ordinance sent shock waves though the minority communities, which clearly were the targets of the enactment. Even as intense, and at times emotionally surcharged, debates raged as to the motivation, intention and timing of the government in bringing forth such a law, the ordinance exposed once again the fragile nature of the right to religion in the constitution and the ease with which the state is able to tamper with it.

In this article, we seek to dissect some of these debates and explore the controversy around the anti-conversion law. We approach the law from two angles: the legal dimensions of the law itself, and the political and social context underlying the passage of the law.

Criminalising Conversion - Salient Features of the Law

The Tamilnadu Prohibition of Forcible Conversion of Religion Ordinance, subsequently passed by a majority vote by the Tamilnadu Assembly on October 31, 2002, contains only 7 Sections. There is per se nothing new about the Ordinance introduced by the Jayalalitha-led AIADMK government, for it is almost a clone of two previous legislations passed by the Madhya Pradesh and Orissa Governments (iv) whose constitutionality was upheld by a Constitution Bench of the Supreme Court (v). The only Section that is new is the provision for enhanced punishment if the conversion is that of a minor, woman or person belonging to Scheduled Castes or Tribes (proviso to sec. 4). The implications of this section are explored in more detail below.

Section 3 of the new Act makes it a crime to convert or attempt to convert, either directly or indirectly, any person from one religion to another by use of force or by allurement or by any fraudulent means. Abetting such conversions also amounts to an offence. Section 4 stipulates that the punishment for anyone violating the provisions of section 3 shall be imprisonment for a term of three years and fine upto fifty thousand rupees. As stated earlier, if the persons converted are minors, women, or SC/STs, then the punishment shall be enhanced to a term of imprisonment of 4 years and fine of Rupees one lakh.

Failure to inform the District Magistrate is punishable by imprisonment of one year and a fine of one thousand rupees. Section 2 defines the terms allurement, force and fraudulent means. Section 2(a) defines allurement as an offer of any temptation in the form of a gift or gratification either in cash or kind, or grant of any material benefit, either monetary or otherwise. Force is defined to include a show of force or a threat of injury of any kind, including threats of divine displeasure or social excommunication. Fraudulent means includes the use of misrepresentation or any other fraudulent tactic. Section 5 makes it mandatory for any person converting another person from one religion to another, either by officiating as a priest or by directly or indirectly taking part in the conversion ceremony, to intimate or inform the District Magistrate of the District regarding the conversion. Failure to provide this information is punishable by imprisonment of one year and a fine of one thousand rupees.

Critical Assessment of the Provisions

The legal problems with the anti-conversion law are twofold. First is the extremely vague and ambiguous definitions of the terms allurement, fraudulent means and force, which make the possibilities of selective use or abuse of the law very real. Secondly, and more importantly, the law subverts the very principles underlying the fundamental right to religion, and will eventually make it a meaningless fundamental right. The law criminalizes three types of overt acts in Section 2. In brief: Allurement covers any offer of temptation by way of a gift or gratification, either in cash or kind or grant of material benefit, monetary or otherwise. (Sec.2(a)). Force has been defined to include threat of injury of any kind including threat of divine displeasure or social ex-communication. (Sec. 2(b)) Fraudulent means covering misrepresentation or any other fraudulent means. ( Sec.2(c)).

The difficulty is not so much that the terms are so imprecise that any act could arguably be brought within their sweep, thereby increasing the potential for false, malicious or motivated prosecution. Rather, the problem is the fact that the presumptions underlying the definition of the offences arise from a legal premise that itself undermines the right to freedom of thought and faith. There are four important grounds why the law, by itself, is faulty:

The entire law is based on the presumption that in a conversion, the person converted has no 'agency', and that the conversion takes place because of inducement or temptation offered by another person. The presumption that the 'converted' person has no role or say in the conversion process is unambiguously visible in Section 3, which begins with the words, "No person shall convert or attempt to convert…" This amounts to a demonisation of those alleged to be 'converting' while those converted are seen as objects to be safeguarded by the state.

The moral principle underlying the enactment is that 'conversion' by itself is an immoral act in which a believer (of one faith) is snatched or enticed or cheated to change her/his religion by a person belonging to another faith. The enactment does not comprehend the possibility of conversion taking place because of the change of heart or accepting the belief in another religious system on the part of the person converting, who does not figure anywhere in the law, barring as a hapless victim! Based on this negative legal premise, all acts of the persons belonging to the religion of the newly converted then get tainted with illegality.

Another dimension arising from the negative presumptions underlying this enactment is the violation of the fundamental right to privacy of the persons 'converting', who do not have any control over who comes to know of the fact of their conversion. Thus, by making it mandatory on the part of persons officiating or witnessing the conversion to inform the District Magistrate and penalizing them if they do not do so, the law rides rough shod over the rights of the converted persons.

The most objectionable principle underlying the anti-conversion law is the unconscionable restriction placed on the rights of individuals to convert and enjoy the practice of the religion. The law, in effect, will end up in those desiring to convert having to subject themselves and their reasons for converting to the scrutiny of the District Magistrate. Paradoxically, the District Magistrate is empowered to launch criminal prosecution against those facilitating others to convert. Since conversion inevitably involves persons other than those seeking to convert, the power given to the District Magistrate amounts to passing judgments on people's subjective reasons for choosing to change their religion. In sum, this negates the right of persons to change their religion, thus giving the state the power to determine the religious beliefs of individuals.

It is this intrusion of the state in domains which are essentially private and personal that is the most objectionable part of the legislation. By denying 'agency' to the converted persons, by denying them the very ability to make an objective and rational choice of converting their religion, the law makers are, in real terms, ensuring that the religious and caste based status quo in the majority religion is maintained.

The right to freely disseminate information about one's faith does not merely consist of the right to inform people about their religion, but also includes the right to inform them in such a manner as to invite or persuade others to share one's belief. The Tamilnadu anti-conversion law is undoubtedly based on the Supreme Court judgment in the Rev. Stainislaus (vi) case (1977) referred to earlier, which upheld similar legislations in MP and Orissa. However, despite the unanimous ruling of the five judge Bench, the reasons elucidated by the court are legally questionable. The court did not consider the fact that the right to speech and expression and the right to propagate religion have to be read together. When so read, the natural principle is that the right to freely disseminate information about one's faith does not merely consist of the right to inform people about their religion, but also includes the right to inform them in such a manner as to invite or persuade others to share one's belief and join one in one's faith.

It is precisely this aspect that K.M. Munshi referred to during his winding up speech in the debate during the passing of Article 19 (now Article 25), which guarantees the right to religion. He stated, "I am sure, under the freedom of speech which the Constitution guarantees, it will be open to any religious community to persuade other people to join their faith. So long as religion is religion, conversion by free exercise of conscience has to be recognized." It was on this basis that, after prolonged debate, the Constituent Assembly felt it necessary to include the term `propagate' separately in Article 19 (now Article 25) guaranteeing that the right of religion meant freedom of conscience and the right freely to profess, practice and propagate religion (vii)." By denying the 'right to convert' the court was reducing the right to propagate religion to a mere slogan.

The ground of 'interests of public order,' used by the court to validate the MP and Orissa laws, is both legally questionable and politically problematic. The court relies on a previous ruling to make the distinction that if something "disturbs the current of life of the community, and does not merely affect an individual, it would amount to disturbance of public order". Expanding on this reasoning, the court holds that if communal passions are aroused on the ground of forcible conversions, it would give rise to apprehension of breach of public order, affecting the community at large, as the conversions would be 'reprehensible to the conscience of the community' (viii).

In a prescient manner T.T. Krishnamachari had already foreseen this oft-quoted objection to conversion by raising the question, "I would ask the House to look at the facts so far as the history of this type of conversion is concerned. It depends upon the way in which certain religionists and certain communities treat their less fortunate brethren (ix)". The plea of Krishnamachari was based on the reality then (which is more potent today) of the allegations of members of the majority Hindu community that the Christians were enticing or persuading members of the lower castes and Scheduled Castes to convert through offers of gifts or other allurements. The easiest way to blackmail the government to take action against those facilitating conversions would thus be to deliberately and in a calculated manner orchestrate public violence . The Supreme Court's view that conversion has the potential of disturbing public order is even more problematic in light of the anti-Babri Masjid and pro-Ayodhya drive of the Hindutva groups and the recent anti-Muslim pogrom in Gujarat.

The easiest way to raise communal passions would be to raise the bogey, amongst other accusations, about forcible conversions indulged in by Christians and Muslims and how this has wounded the 'sentiments and conscience of the majority community'. It is this larger context that we turn to next.

Political Context

The introduction of the ordinance came as something of a surprise to most political observers in the state. That the AIADMK was and is moving closer to the Sangh Parivar is obvious, but this particular move went beyond most expectations. As The Hindu put it, by taking this step, the Tamilnadu government has 'outranked' even the BJP's own regimes that have stopped short of enacting such a regressive and patently anti-minority legislation (x)."

The months preceding the ordinance were marked by two issues which may have triggered the AIADMK's decision to pursue this particular course. First, in the second week of September, 2002, Dalits in the village of Kootharanbakkam, Kanchipuram district, converted to Islam as a protest against persistent discrimination by local caste Hindus in religious matters. The English press paid little attention to the conversion, but it was picked up by other Dalit communities, and a second conversion soon took place in a village near Madurai. This was the latest manifestation of the recent surge in the Dalit movement, which has been actively challenging ruling upper-caste interests all over the state since the mid-nineties. In several regions, they have been giving strident calls to their cadres to leave the Hindu fold and embrace Buddhism or other religions. This has been a major challenge to both the Sangh Parivar and their sympathizers in the ruling AIADMK combine.

Second, in August 2002, the Supreme Court finished hearings on the TANSI corruption case and orders were reserved. While orders remain reserved to this date, the general legal opinion is that a conviction is quite possible. Had a conviction actually been given at that point, the political equations in Tamilnadu would have changed dramatically, and Chief Minister Jayalalitha would have required a stable base of political support to ride out the consequences.

Over the one and a half years that had passed between her accession to power and the ordinance, the Jayalalitha government had made several extremely unpopular moves. These included the bill banning strikes in 'essential services', the mass layoffs of highway workers and school teachers (affecting over 30,000 people), and the hike in ration prices, to mention only a few. By mid-2002, all political forces had taken strong positions against the AIADMK and the government on at least some of these issues, with the sole exception of the BJP/ Sangh Parivar combine. While not openly against the AIADMK, the BJP also retained a certain distance with respect to the party, particularly because of the DMK's presence in the NDA and partly because of the troubled history that marked the last BJP-AIADMK coalition. As such, by mid-2002 the AIADMK was largely isolated from other forces, a dangerous situation given the imminent judgment.

The ordinance sends a clear message to Dalits; henceforth their struggles would be met with state force; and second, the government will intervene to blunt challenges to the Sangh Parivar's style of 'Hindu consolidation'. Given these factors, the anti-conversion ordinance was a masterstroke. In regards to Dalit communities, it sent two clear messages: first, henceforth their struggles would be met with state force; and second, the government will intervene to blunt challenges to the Sangh Parivar's style of 'Hindu consolidation'. This has strengthened the middle and lower middle castes that wield considerable influence in the AIADMK. In regards to the Sangh Parivar, this ordinance was yet another clear signal that the Jayalalitha regime is as pro-Hindutva as the BJP, even if not as consistently so. Indeed, it served as a reminder that things had not changed since the previous AIADMK regime, 1991 - 1996, when the Tamil Nadu government strongly supported the Ram shilas puja and had a cozy relationship with the Hindu Munnani and similar organisations. The entire Parivar combine - including the VHP, the RSS, and the Hindu Munnani - effusively welcomed the law, and BJP President Venkaiah Naidu, VHP leader Praveen Togadia and RSS leader K. Sudarshan all praised it greatly.

As a result, with the Parivar seeing Jayalalitha as their next Narendra Modi, the State BJP was pushed into a position where they were effectively allied with the AIADMK. This remains true to this date, as is evinced by the Sattankulam by-elections. Both in Tamilnadu and at the Centre, there is now a BJP-AIADMK tie-up in all but name. Together, these events imply that the relative political isolation of the AIADMK is at an end. Both a good part of its popular base and the ruling party at the Centre have moved into positions of open support for the government. The result has been a polarization of the polity and a crisis for secularism in Tamilnadu.

Opposition and Polarization

The sudden promulgation of the ordinance left the Opposition and minorities groups in a difficult position. Shortly afterwards, Christian organisations announced that their schools and other institutions would be closing for a day of protest on October 24. On that day, some 50,000 people assembled in Chennai to protest the ordinance; the majority of those present were from Christian revivalist groups, with a smaller component from political parties and Muslim organisations.

All the major opposition parties and human rights groups joined the Christian groups in condemning the ordinance. DMK leader M. Karunanidhi spoke at the October 24th demonstration, where he made his now well-known remark that the word 'Hindu' is derived from the Persian word for 'thief.' All these moves, however, also provided ample fuel for the Sangh Parivar's efforts at producing a sense of a Hindu community under assault. The closure of minority institutions was portrayed as evidence that the entire purpose of these institutions was conversions, not social service. Karunanidhi's address became a target for fierce attack, and the AIADMK executive committee passed a resolution demanding criminal action against him.

On October 31st, the Shankaracharya held a large gathering in Chennai to support the passage of the ordinance and counter the 24th October demonstration. Meanwhile, on October 22nd, the Srirangam Srimad Andavan Ashram's chief functionary publicly thanked the Chief Minister for the ordinance. Following this, a newly formed gathering called the 'Hindu Revivalist Forum', composed of various religious leaders, also met Jayalalitha to express their 'gratitude'. This pro-government trend was also reflected in the media. For instance, following the promulgation of the ordinance, Dina Thanthi - in terms of circulation, the largest newspaper in India - carried only articles and statements from leaders in favour of the law. Statements by the Hindu Munnani and the Kanchi Shankaracharya were given special prominence, while opposition voices found no place. Similarly, there was very little coverage of reports that those attending the Shankaracharya's 31st October meeting were promised a free saree and sweets, an instance of 'allurement' if there ever was one.

The Present Day

Tamilnadu's political discourse still retains a relatively high degree of secularism, and no opposition party - including the Congress itself - has adopted the 'soft Hindutva' positions that have become the hallmark of Congress politics in the north. But the debate around the anti-conversion law has shown how much things have changed. We have seen a consolidation of several power centres in society - the government, religious heads, and the media - around the broad tenets of Hindutva. Further, the Shankaracharya and other religious leaders are now overtly entering the political sphere. This is a new phenomenon in a state where religious leaders have rarely had much political presence.

The opposition parties and the minority organisations now find themselves in a situation where the entire terrain of political discourse is shifting, and their response is thus confused and incoherent. Church leaders initially announced that Christian institutions would close indefinitely until the ordinance was repealed, then hastily withdrew their announcement and limited the closure to a day. Political parties have fallen almost silent on the law for the moment. This lack of strategic clarity does not bode well for secular and democratic forces in Tamilnadu.

Meanwhile, outside of Tamilnadu, the anti-conversion law has had reverberations throughout the country. The Gujarat genocide had already greatly heightened communal tensions, as well as providing an atmosphere where Hindutva forces felt free to go on a nation-wide offensive. As mentioned above, national leaders of the Sangh Parivar welcomed the law immediately. Narendra Modi quickly promised to enact a similar legislation in Gujarat, while the RSS joined the Kanchi Shankaracharya in demanding that a similar law be enacted by the Centre. The reaction of the other parties was considerably more muted, largely limited to statements on the 'unjustified' nature of the law.

Further, the anti-conversion law revived the anti-Christian agenda of the Sangh Parivar, which had lost its prominence during the Gujarat genocide and subsequent national debates. The assault on Joseph Cooper in Kerala and his subsequent expulsion from the country is perhaps the best known example. Now, the Parivar has begun a two pronged offensive, targeting both the highly vulnerable Muslim community and the increasingly defensive Christian community. With a government convinced that communal fascism is the only way to win elections and survive, it will be no surprise if a national anti-conversion bill is brought in soon. The opposition parties' reaction to this will have to be seen.

Background and Future Possibilities

In this context, it is relevant to consider the essential underpinnings of the sudden rise in anti-conversions campaigns in the recent past. The Parivar has always sought to build a sense of an organic community of Hinduism that is under siege. With Muslims, this sense is produced by propaganda regarding 'terrorism', Pakistan, the 'fifth column', Partition, and so on. With regard to Christians, however, these topics have been much less successful in generating hatred (which is not to say that they have not been tried - witness the propaganda on the armed movements of the Northeast). The replacement has been found in the conversions debate.

While conversion is not a question of physical assault or slaughter, it is in some ways an even more sensitive issue, since it produces a sense of deep intellectual and mental vulnerability. The Christian community in India is far smaller than the Muslim community, but it enjoys a tremendous degree of intellectual weight by way of its educational and social institutions. This offers ample fuel for a campaign that Christians are seeking to exploit Hindus' innocence. Whereas Muslims are supposed to be invading 'Hindu' territory, Christians are supposed to be attacking 'Hindu' minds. By equating Christian intellectual and social activity with proselytization, the Parivar strikes a blow at the foundation of the Christian presence in the country's polity.

The reasons for the renewed focus on conversions, however, may well go beyond the tactical necessity of needing to find an anti-Christian weapon. Since coming to power at the Centre, the Parivar has expanded its focus from physical violence and state brutality - as in Gujarat - to also include state efforts at controlling and silencing independent thought and expression. The saffronization of NCERT is the most well-known example, but the effort touches many more bodies: the recent Sahitya Akademi election was won recently by a person alleged to have ties to the Sangh Parivar, and the Board of Film Censors is led by a former BJP office bearer, to cite a few examples.

Whether or not this law is actually used, its passage serves as a legitimation of government intervention in areas of personal faith, belief and opinion. In today's political context, it is an invitation to state control over individuals' minds. The attack on conversions may be one more stepping stone in this process, for it represents a major effort by the Hindutva brigade to explicitly control the personal beliefs and personal choices of individuals. Whether or not this law is actually used, its passage serves as a legitimation of government intervention in areas of personal faith, belief and opinion. In today's political context, it is an invitation to state control over individuals' minds. It is on this ground that this law is most dangerous, and it is on this ground that it must be fought.

Conclusion

Fundamentally, the anti-conversion law is a legally dressed up expression of Hindutva paranoia and hatred. It is also one more testimonial to the alacrity with which all our institutions have collapsed in the face of the saffron brigade. A confused legal understanding of the Constitution and a cynical manipulation of religious sentiment have triumphed over both democracy and human rights.

Such political manipulation of sentiments cannot be permitted to derail vital fundamental rights in a state wedded to the rule of law. Laws against 'forced conversions' form the thin end of a wedge that will rapidly expand to wipe out all of our fundamental rights and all the tenets of our democracy. It is time we returned to the sensitivity and understanding of the Constituent Assembly and to the values that its members enshrined in our Constitution. Without those values, sooner or later we will face the collapse of our political system and an era of tremendous violence. Ironically, these 'anti-conversion' laws were enacted in the name of controlling violence, but they are themselves an expression of the ideology that has created this violence in the first place.