Aakar Patel | Constitution gives right to propagate religion… But laws make it an offence

Do Indians have freedom of religion? Meaning, do they have the right to invite others into their faith and the right to easily leave their faith? The Constitution says yes, but the laws say no. India is an unusual nation where propagation is both a fundamental right and a criminal offence. A fundamental right is defined as one that enjoys a high level of protection from encroachment by the State. But Article 25 (right to freely profess and propagate religion) doesn’t enjoy such protection.

In effect, the Constitution tells us we are free to propagate but when we do so the police shows up and takes us away. On July 11 this year it was reported that the Allahabad High Court rejected the bail of a man named Shriniwas Rav Nayak with the observation that “the Constitution confers on each individual the fundamental right to profess, practice and propagate his religion. However, the individual right to freedom of conscience and religion cannot be extended to construe a collective right to proselytise”.

On the subcontinent, Nepal doesn’t allow conversions, while Pakistan has the same phrasing as India does, with the same restrictions. There is no real freedom of religion in Pakistan, just as the honest observer will conclude there isn’t in India. But this is not what was intended by those who wrote the Constitution.

The Constituent Assembly debate on religious freedom happened on December 6, 1948. It came after meetings of the Minorities Committee and the Committee on Fundamental Rights, which discussed the issue in detail and produced a text, which is today Article 25. It reads: “Right to freedom of religion: Subject to public order, morality and health and 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”.

The key word here is “propagate”, which the dictionary defines as to spread and promote, and to breed. The context in which the word was debated by India’s Constituent Assembly was of conversions, specifically by Christians.

Gujarat’s K.M. Munshi, the Hindu conservative, was part of a group that arrived at the text and he said of the word “propagate” that: “I know it was on this word that the 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.” And “so long as religion is religion, conversion by free exercise of conscience had to be recognised”. People must not fear the idea of a right to propagate, Munshi said, because “whatever conversions take place… are only the result of persuasion and not because of material advantages”.

Note that conversion was always accepted as the reason for propagation.

In the Interim Report on Fundamental Rights dated May 1, 1947, Frank Anthony had spoken to the committee and said: “My community (he was an Anglo-Indian) does not propagate. We do not convert, nor are we converted. But I do appreciate how deeply, how passionately millions of Christians feel on this right to propagate their religion.” Anthony, the founder of a school network around India, congratulated the majority for retaining “in spite of its contentious character” the words “to propagate”, “a right which is regarded as perhaps the most fundamental of Christian rights”.

T.T. Krishnamachari said Dalits became Christian because of the status it gave them, that Hindu reform would deter such conversions, and that the right to propagate also applied to Hindus and Arya Samaj members who were free to carry out their conversion activities, which they called “Shuddhi”.

The point here is that the meaning of the word “propagate” was understood by all as the right to, in Munshi’s words, “persuade people to join their faith”. That is, to convert. But what would happen instead in India, as we see around us, is that the State would step in to not only the right to propagate but also the individual’s right to change his/her religion.

The only opposition in the Constituent Assembly came from a 26-year-old man from Odisha, who wanted the word “propagate” removed. This was Loknath Misra, brother of Ranganath Misra, who would later become Chief Justice of India, and uncle of Dipak Misra, also to become Chief Justice. Loknath Misra said he didn't have any problem with propagation. “If people should propagate their religion, let them do so”, he said, but “only I crave, let not the Constitution put it as a fundamental right and encourage it”. His opposition also came from an understanding of the right to propagate as meaning the right to convert.

V.P. Bharatiya, writing in the Journal of Indian Law Institute in 1977, says the specificity in the debates gave the impression that the inclusion of the word propagate “creates a specific fundamental right to convert”.

Dr B.R. Ambedkar was present in the debate but did not speak. He said he had nothing to add to what the others had said in defence of the right to propagate. It must be noted that Ambedkar’s original draft submitted to the Constituent Assembly’s committees bore the words: “right to profess, to preach and to convert, within limits compatible with public order and morality”. He was satisfied that propagate meant the same thing. He would himself leave Hinduism and convert to Buddhism along with more than three lakh other Dalits in Nagpur on October 14, 1956.

Beginning in the 1970s, India’s judiciary and police began instituting a series of practices that have resulted in where we are today: a nation whose Constitution gives citizens freedom of religion but whose establishment disallows it through indiscriminate use of criminal law.