It is time to challenge Himachal Government in High court

Chhattisgarh Governor holds back anti conversion bill and seeks top legal advice, but Himachal makes it law
Christians decide it is time to challenge Himachal Government in High court

[JOHN DAYAL’S NOTE: NEW DELHI 6TH October 2007: This has been a momentous, if negative, week in the history of Freedom of Faith in India. In the dock are both the Bharatiya Janata party, ideologically aggressively opposed the presence of Christianity and Islam on the soil of India, and the Congress party, sworn to a secular political thesis but easy prey to competitive Hindu fundamentalist arguments as it seeks to retain its century-old political supremacy in India. The Congress government in Himachal Pradesh, the Himalayan State, has at last formulated the bureaucratic rules which will allow Police and Civil officers to monitor conversions to Christianity, and other faiths, in the province, and punish pastors with prison terms and massive fines. I have been waiting for these rules to be formulated ever since the laws were passed by the legislature and then affirmed by the State Governor many months ago, Though the Governor had given his assent, we could not move the Himachal High court as it would have been premature. In Gujarat in similar circumstances, we failed to get a response from the High Court which reminded us Legislative Acts could be challenged only after appropriate rules were put on the Statutes. Our first step now is to move under the Right ton Information to ask the State government the number of actual cases of fraudulent and forcible conversion to Christianity it has recorded in past years to justify its claim that such harsh laws had become necessary in a State where minority communities are barely visible in census figures. In Chhattisgarh, carved out of Madhya Pradesh [both are currently ruled by the Bharatiya Janata Party], the Congress-appointed Governor however has resisted the administration’s efforts to sharpen an existing similar law. The Governor has sought the opinion of Union law officers in New Delhi on the constitutionality of the law. The present Vice President of India, Mr Hamid Ansari, had in his earlier appointment as Chairman of the National Minorities Commission pilloried such laws as injuring Freedom of Faith and going against the national Constitution. The current President of India, Mrs Pratibha Patil, too had refused to sign a similar Bill when she was Governor of Rajasthan, another state ruled by the Bharatiya Janata Party. Ironically, she will now have to give her decision on the same Bill. Union law officers, including the Solicitor General of India, have made it clear that in their opinion such laws are an anathema to the secular credentials of the Constitution of India. It remains to be seen how the Himachal High Court will rule. We are seeking the assistance of the best legal brains in this cause. I give below reportage and texts of the latest move in Himachal Pradesh and the advice of the Solicitor General of India. Goolam E Vahanvati to the Madhya Pradesh government’s so called Freedom of Religion Bill which adds to the original Act passed some decades ago.]

In Raipur, Chhattisgarh governor E S L Narasimhan has referred the BJP state government's anti-conversion Bill to attorney-general of India Milon Banerjee for legal opinion. Official sources said the governor has sought clarifications from Banerjee on certain provisions of the Bill. Legislative affairs minister Ajay Chandrakar confirmed that the Chhattisgarh Religious Freedom (Amendment) Bill, which was passed by the state Assembly in mid-2006, is yet to receive the governor's assent. "However, I won't be able to specify the nature of clarification sought by the governor," he said. When contacted for an explanation about the governor's action, secretary to the governor PC Dalai neither confirmed nor denied the development. The Bill has a provision of "penalising those who change their faith without informing concerned authorities".
The clarification sought by the governor relates to the provision that would make reconversion simple. According to the draft Bill, a person born to parents who had changed their faith could convert to their original faith or that of his or her forefathers without any hindrance. It would not be considered conversion. The governor's decision assumes significance as Chhattisgarh is preparing for polls in 2008. "The delay in getting gubernatorial assent has put the BJP government in a spot," a source said. The Bill has been pending for more than a year as even Narasimhan's predecessor K M Seth had denied assent.
According to the Bill, people wishing to change religion must inform the district magistrate a month in advance. The penalty for those violating the law, including those who convert people forcibly, could be between Rs 50,000 and a Rs 1 lakh with imprisonment of up to five years.
Former Rajasthan governor Pratibha Patil, too, had referred the Bill to then president APJ Abdul Kalam.
In the Case of Madhya Pradesh, the Solicitor General of India faulted the state’s Freedom of Religion Bill.
The following is the text of the Solicitor General’s note:

OFFICE OF SHRI G E VAHANVATI SOLICITOR GENERAL OF INDIA, SUPREME COURT, NEW DELHI 110 001

Dy. No. 1166/07 dated 3/5/07, Deptt. of Legal Affairs

I have gone through the letter of His Excellency, the Governor dated 16 April 2007. Before dealing with questions which have been raised, it is necessary to note the relevant provisions.
Section 5 of the M.P. Dharma Swatamtraya Adhiniyam 1968 before its amendment read as follows:
“5. Information to be given to District Magistrate with respect to conversion:- (1) Whoever converts any person from one religion faith to another either by performing himself the ceremony necessary for such conversion as a religious priest or by taking’ part directly or indirectly in such ceremony as may be prescribed, send an intimation to the District Magistrate of the district in which the ceremony has taken place of the fact of such conversion in such form as may be prescribed.
(2) If any person fails with sufficient cause to comply with the provision contained in sub-section (1), he shall be punishable with imprisonment which may extend to one year or with fine which may extend to one thousand rupees or with both,”
By virtue of the proposed amendment to Section 5, the original section 5 is proposed to be substituted by a new Section 5 which reads as follows:
“5(1) Any person intending to convert his religion, shall give a declaration before the District Magistrate or before ,an Executive Magistrate specially authorized by the District Magistrate of the concerned District, prior to such conversion to the effect that he intends to convert his religion on his own will.
(2) The concerned religious priest, who intends to convert any person from one religious faith to another, either by performing himself the ceremony necessary for such conversion or by taking part directly or indirectly in such ceremony, shall intimate the date, time and place of the ceremony in which conversion shall be made along with the name and address of the person to be converted, to the concerned District Magistrate one month prior to the date of said ceremony, and the intimation shall be in such form and shall be delivered or caused to be delivered by the priest to the concerned District Magistrate in such manner as may be prescribed.
(3) On receiving the intimation under sub-section (1) and,(2) the District Magistrate shall inform the details of proposed conversion to the concerned Superintendent of Police, who shall ascertain through the office-in-charge of the concerned police station regarding the objection, in any, to the proposed conversion by local inquiry and intimate the same to the District Magistrate.
(4) Whoever fails to comply with the provision contained in sub-section (1) shall be punishable with fine which may extend to one thousand rupees.
Whoever fails to comply with the provision of sub-section (2) shall be punishable with imprisonment which may extend to one year or with fine which may extend to five thousand rupees or both.”

The following changes may be highlighted:

Under the existing provisions the obligation to furnish an intimation is cast on the person performing the conversion ceremony. Now, it would be on both- the person who wants to convert and the person performing the ceremony.
Sub section (2) casts an obligation on the person performing the ceremony to defer it by a month since prior intimation of one month is required to be given. This is not there in the existing provisions.
Under Sub section (3), the District Magistrate has to inform the details of the proposed conversion to the SP who is required to ascertain, through the officer-in-charge of the concerned police station “regarding the objections, if any, to the proposed conversion.”
No provision is made for the consequences of an adverse report.

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?

The second problem is that if anybody objects to the conversion, it could result in an adverse report. A mere objection leads to an adverse report irrespective of whether it is forcible or mot. A conversion may be purely voluntary but any objection can lead to an adverse report.
I do not agree with the view that a Superintendent of Police may report that the conversion is “forcible or note of its own free will.” This is not what the proposed Sub section 5(3) requires to report. The superintendent of police is required to report any objections to the proposed conversion. Such a provision is not only vague but also unreasonable since it does not focus on the real issue, namely whether the conversion is forcible or not.
Looked at from another point of view, the assumption is that 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? 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.
I also do not agree with the view that the person would have to challenge the report by way of Writ Proceedings under Article 226 or 227 of the Constitution. Does this mean that till the report (merely based on a solitary objection) is set aside and quashed, the conversion cannot take place? If so, it is unreasonable as this would have nothing to do with “public order.”
In my opinion, 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.
In my opinion, the judgment of the Hon’ble Supreme Court in the said judgment was concerned with the unamended Act. The Hon’ble Court had upheld the validity of the Act on the ground of public order. In paragraph 23 of the judgment, the Hon’ble Court observed:
“The Acts therefore clearly provide for the maintenance of public order for it forcible conversion had not been prohibited, that would have created public disorder.”
The Hon’ble Court in the Stanislaus 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.
In the premises, I will answer the queries as under.

Q. (i) Whether proposed amendment in Section 5(1) to 5(5) of the M.P. Dharm Swatantraya Adhiniyam 1968 are ultra- vires to Article 24(1), 26 and 2(3) of the Constitution of India?
Ans. Yes, for the carious reasons mentioned above, pointing out lack of clarity and patent obscurity in Section 5(2) and 5(3) of the proposed amendment.

Q.(ii) If the person intending to convert his religion declares before the District Magistrate and if the report of Superintendent of Police is negative, then what legal remedy will be available to the person against whom the District Magistrate may take action? The Bill is silent on the aspect.
&

Q.(iii) If the Religious priest intimates about the conversion before one month to the District Magistrate and if the report of Superintendent of Police is negative, then what legal remedy will be available to the person (Priest) against whom the District Magistrate may take action? The Bill is silent on this aspect.

Ans. In my opinion, 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.

Q.(iv) 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 an 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.

Ans. There is clear ambiguity in the proposed sub section 5(3). I have indicated the implications hereinabove. 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.
Goolam E Vahanvati, Solicitor General of India

III. Vice President Hamid Ansari while he was chairman of the National Minorities Commission had also Congress party chief minister Virbhadra Singh's anti-conversion law in Himachal Pradesh.
The freedom of Religion Act, 2006 enacted by the Legislative Assembly of Himachal Pradesh, received the assent of the Governor on February 18, 2007.
The National Commission for Minorities has examined the provisions of the Act and the Statement of Objects and Reasons. The latter refers to "rise in conversions based on allurement generally" and to " a persistent demand from across the different strata of the society, urging the State Government to curb it" as, otherwise, it may "erode the confidence and mutual trust between the different religious and ethnic groups in the State".
According to the 2001 Census, religious minorities constitute 4.53 percent of the total population of Himachal Pradesh. Of these, Muslims account for 1.97%, Sikhs 1.19%, Buddhists 1.25% , and Christians 0.13%. Media reports relating to the adoption of the Act suggest conversions by "force" to Christianity as the prime motivation for the new law. No specific data on such conversions, however, has been cited officially or in media reports.
The commission has noted with concern the terminology used in the Act and the methodology prescribed for implementing it. The definition of "force" includes "threat of divine displeasure" and " Social excommunication"; neither of these is considered an offence in the Indian legal system.
The Act prescribes that a person intending to convert from one religion to another must give a notice of at least thirty days to the District Magistrate who then "shall get the matter enquired into by such agency as he may deem fit". No time limit is prescribed for the conduct of such an enquiry nor have its modalities been defined. The failure to give such a notice, on the part of the person intending to convert, would be punishable by a fine. No such notice however is required if a person reverts back to his "original religion".
Since provisions of existing law already cover cases in which fraud or force are involved, the specific rationale cited for the enactment is not understood. On the contrary, the provision of notice and enquiry, and that too selectively, is tantamount to a gross interference with the individual liberties of citizens and would allow state functionaries to interfere in matter of personal life and religious beliefs. More seriously, it would impinge on the freedom of conscience, and free profession, practice and propagation of religion guaranteed by Article 25 of the Constitution.
In view of these considerations, the National Commission for Minorities expresses its profound concern over the attempt in this Act, and reportedly by similar pieces of legislation contemplated in some others States, to interfere with the basic right of freedom of religion that is the birth right of every Indian. It appeals to the Central and State Governments, civil society groups and individual citizens to recognize the existence of such trends and take timely steps to reverse them.