Marco Ventura You Shall Go to Hell: Legal Arguments on Forced Conversions Before the Supreme Court of India

Transcription

1 Marco Ventura You Shall Go to Hell: Legal Arguments on Forced Conversions Before the Supreme Court of India 6 May 2011

2 1. January The Staines case and the no right to conversion doctrine 2. The colonial. Warren Hastings (1772) and the colonial legal sanction to religious boundaries 3. The post-colonial. Phase 1. The Niyogi Committee ( ). Conversion is abusive. 4. Phase 2. The Stainislaus case (1977). No such thing as a right to convert. 5. Phase 3. The Sarla Mudgal (1995) and Lily Thomas (2000) cases. Religion is not a commodity. 6. Conclusions

3 1.1. The Staines case. The decision of 21 January, 2011 ( ) though Graham Staines and his two minor sons were burnt to death while they were sleeping inside a station wagon at Manoharpur, the intention was to teach a lesson to Graham Staines about his religious activities, namely, converting poor tribals to Christianity (para 43). It is undisputed that there is not justification for interfering in someone s belief by way of use of force, provocation, conversion, incitement or upon a flawed premise that one religion is better than the other (para 47). Justice P. Sathasivam, Supreme Court of India, Rabindra Kumar Dara Singh, 21 January 2011.

4 1.2. The Staines case. The reaction of civil society and media Leading editors, media groups and civil society members from across the country have signed a statement taking strong exception to the Supreme Court's observation that the killers ( ) intended to teach the Australian missionary a lesson for preaching and practising conversion. Arguing that the remarks were gratuitous, unconstitutional and went against the freedom of faith guaranteed by the Constitution, the signatories asked that they be expunged. The signatories said the Supreme Court and other judicial forums were secular India's last hope to preserve constitutional guarantees given to religious minorities and other marginalised groups. The Hindu, 23 January, 2011 (retraction on 24 January) events as reported by Siddharth Varadarajan

5 1.3. The Staines case. The amended version of 25 January, 2011 The life sentence awarded by the High Court need not be enhanced. (para 43). There is no justification for interfering in someone s religious belief by any means (para 47). Supreme Court of India, Rabindra Kumar Dara Singh, AS AMENDED 25 January 2011.

6 1.4. The Staines case. The no right to conversion doctrine The social and political significance. The legal confusion.

7 2. The colonial. Warren Hastings (1772) and the colonial legal sanction to religious boundaries In all suits regarding marriage, inheritance and caste, and other religious usages and institutions, the laws of the Koran with respect to Mahomedans, and those of the Shaster with respect to the Gentus (Hindus) shall be invariably adhered to. Warren Hastings, Plan of 1772, rule 23.

8 3.1. The post-colonial. Phase 1. The Supreme Court acknowledges the right to propagate religion. every person has a fundamental right under our Constitution not merely to entertain such religious belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt acts as are enjoined or sanctioned by his religion and further to propagate his religious views for the edification of others. It is immaterial also whether the propagation is made by a person in his individual capacity or on behalf of any church or institution. Justice Bijan Kumar Mukherjea, Supreme Court of India, Ratilal Panachand Gandhi Vs The State of Bombay and Ors, 18 March 1954.

9 3.2. The post-colonial. Phase 1. The Niyogi Committee ( ). Conversion is abusive. The picture Who induces conversions: a rich foreigner Who is converted: a weak and poor tribal or harijan How is conversion performed: by force or fraud The recommendations Any attempt by force or fraud, or threats of illicit means or grants of financial or other aid, or by fraudulent means or promises, or by moral and material assistance, or by taking advantage of any person s inexperience or confidence, or by exploiting any person s necessity, spiritual (mental) weakness or thoughtlessness, or, in general, any attempt or effort (whether successful or not), directly or indirectly to penetrate into the religious conscience of persons (whether of age or underage) of another faith, for the purpose of consciously altering their religious conscience or faith, so as to agree with the ideas or convictions of the proselytizing party should be absolutely prohibited. (n. 5)

10 3.3. The post-colonial. Phase 1. G. Viswanathan s criticism on the Niyogi Committee. Not because they choose to. The Niyogi Commission s landmark report set the lines of an argument that have continued to the present day, blurring the lines between force and consent and giving very little credence to the possibility that converts change over to another religion because they choose to. Gauri Viswanathan, Outside the Fold. Conversion, Modernity, and Belief, (orig Princeton University Press) (New Delhi : OUP, 2001)

11 4.1. The post-colonial. Phase 2. Anticonversion acts in the sixties Mass anti cow slaughter protest of Sadhus in New Delhi. The Hindus are threatened ideology Orissa (now Odisha) Freedom of Religion Act. Prohibition to convert either directly or otherwise, any person from one religious faith to another by the use of force or by inducement or by any fraudulent means Madhya Pradesh Dharma Swatantrya Adhiniyam (same as 1967 Orissa Act).

12 4.2. The post-colonial. Phase 2. Anti-conversion Orissa Act of 1967 turned down. The Act made the area of potentially illegal behaviour boundless: conversion by force included threat of divine displeasure or social ex-communication, while conversion by fraud included misrepresentation or any other fraudulent contrivance. Inducement to conversion covered the offer of any gift or gratification either in cash or in kind or the grant of any benefit, either pecuniary or otherwise. Orissa High Court, Yulitha Hyde and Others v. State of Orissa, 24 October 1972.

13 4.3. The post-colonial. Phase 2. The evidence of the Christian petitioners on their propaganda s features. mild threats are inherent to Christianity: The preacher says: You (non-christians) shall go to hell or You shall not obtain salvation. The preacher also often says: Wrath of God shall come down upon you or God will be displeased with you. Orissa High Court, Yulitha Hyde and Others v. State of Orissa, 24 October 1972.

14 4.4. The post-colonial. Phase 2. The evidence of the Christian petitioners on conversions to Christianity. People of the depressed classes in Society feel that they are hated and despised by the well-placed section of people. People of the depressed classes embrace Christianity voluntarily as an escape. Orissa High Court, Yulitha Hyde and Others v. State of Orissa, 24 October 1972.

15 4.4. The post-colonial. Phase 2. The conclusion of the High Court: conversion has to be included in the right of Christians. The true scope of the guarantee under Art. 25 (1) of the Constitution ( ) must be taken to extend to propagate religion and as a necessary corollary of this proposition, conversion into one s own religion has to be included in the right so far as a Christian citizen is concerned. Orissa High Court, Yulitha Hyde and Others v. State of Orissa, 24 October 1972.

16 4.5. The post-colonial. Phase 2. The opposite conclusion of the Madhya Pradesh High Court in (Constitutional principles) establish the equality of religious freedom for all citizens by prohibiting conversion by objectionable activities such as conversion by force, fraud and by allurement. Madhya Pradesh High Court, Rev. Stainislaus v. State of Madhya Pradesh, 23 April 1974.

17 4.6. The post-colonial. Phase 2. The Stainislaus case (1977). No such thing as a right to convert. (religious freedom does not imply) the right to convert another person to one s own religion, but to transmit or spread one s religion by an exposition of its tenets. What is freedom for one, is freedom for the other, in equal measure, and there can therefore be no such thing as a fundamental right to convert any person to one s own religion Justice Ajit Nath Ray, Supreme Court of India, Rev. Stanislaus vs. State of Madhya Pradesh, 17 January 1977.

18 5.1. The post-colonial. Phase 3. The Sarla Mudgal case (1995). Uniform civil code to avoid sham conversions There is an open inducement to a Hindu husband, who wants to enter into second marriage while the first marriage is subsisting, to become a Muslim. Since monogamy is the law for Hindus and the Muslim law permits as many as four wives in India, errant Hindu husband embraces Islam to circumvent the provisions of the Hindu law and to escape from penal consequences. Justice Kuldip Singh, Supreme Court of India, Sarla Mudgal (Smt.) President, Kalyani & Ors. v. Union of India & Ors., 10 May 1995.

19 5.2. The post-colonial. Phase 3. The Lily Thomas case (2000). Religion is not a commodity Religion, faith or devotion are not easily interchangeable. If the person feigns to have adopted another religion just for some worldly gain or benefit, it would be religious bigotry. Looked at from this angle, a person who mockingly adopts another religion where plurality of marriage is permitted so as to renounce the previous marriage and desert the wife, he cannot be permitted to take advantage of his exploitation as religion is not a commodity to be exploited. Justice Saiyed Saghir Ahmad, Supreme Court of India, Lily Thomas & Ors. v. Union of India & Ors., 5 May 2000.

20 Behind the Supreme Court s rectification of January 2011 (Staines case): 1. Problematic implications of conversion in colonial and post-colonial India 2. Courts interaction with the changing social context by means of legal arguments

21 THANK YOU