CWP No. 438 of 2011-A. Case: Evangelical Fellowship of India, A Society registered under the Societies Registration Act, 1860, 805/92, Deepali Building, Nehru Place, New Delhi-110 019, through Rev. Richard Howell, General Secretary and Act Now For Harmony And Democracy (ANHAD) a registered Trust having its office at 23, Canning Lane, New Delhi-110 001, through Shabnam Hashmi, Managing Trustee Vs State of Himachal Pradesh through Principal Secretary, Home Department, Shimla, Himachal Pradesh CWP No. 4716 of 2011-E. Himachal Pradesh High Court
| Case Number | CWP No. 438 of 2011-A |
| Counsel | For Appellant: Mr. Sudhir Nandarajog, Senior Advocate, with M/s R.R. David, P.K. Singh, Aman Sood, Tehmina Arora, Loreign Ovung, Febin Mathew Varghese and Dhiraj Philip, Advs. and M/s Manoj V. George, B.D. Das, Alex Joseph and Aman Sood, Advs. and For Respondents: Mr. R.K. Bawa, Adv. Gen., with Mr. Vivek Singh Thakur, Addl. Adv., Gen., for the... |
| Judges | Mr. Deepak Gupta and Mr. Rajiv Sharma, JJ. |
| Issue | Constitution of India - Articles 13 (2), 14, 19 (1), 21, 25, 25 (1), 26; Indian Penal Code (45 of 1860) (IPC) - Sections 499, 500; Orissa Freedom of Religion Act, 1967 - Sections 2, 3, 4, 7 |
| Citation | 2013 (4) RCR 283 (Civil) |
| Judgement Date | August 30, 2012 |
| Court | Himachal Pradesh High Court |
Judgment:
Deepak Gupta, J., (At Shimla)
CWP No. 438 of 2011
1. The petitioners, by means of this writ petition, have challenged the constitutional validity of the Himachal Pradesh Freedom of Religion Act, 2006 (hereinafter referred to as the Himachal Pradesh Act) and have prayed that the said Act, especially Sections 2 (a), 2 (b), 2 (c), 2 (d),4, 8 of the Act and Rules 3, 4, 5 and 6 of the H.P. Freedom of Religion Rules framed under the Act are ultra vires the Constitution of India and violate the provisions of Articles 14, 19 (1), 21 and 25 of the Constitution of India. We may point out that during the course of the hearing of the writ petitions, a large number of applications were filed by various individuals and bodies, such as, Dr. Subramanian Swamy, Mr. Vijay Kumar Sood, Shree Sanatan Dharam Sabha, Mr. Ajay Sood, Mahant Ram Mohan Dass, Shri Brahmin Sabha Shimla, Mr. Ramesh Chaujjar, Shri Ashutosh, etc. Therefore, on 30th April, 2012, we had permitted all these applicants to intervene, though they were not permitted to be arrayed as respondents. Dr. Subramanian Swamy, even at the time of final arguments, prayed that he may be arrayed as a party-respondent. We have permitted the applicants to assist the Court, but we do not feel that they are necessary parties to the petitions.
2. At the outset, we may state that a large number of issues raised in this petition stand decided and are no longer res integra in view of the decisions of the Apex Court rendered in Rev. Stainislaus versus State of Madhya Pradesh and others, AIR 1977 SC 908 and Satya Ranjan Majhi and another versus State of Orissa and others, (2003) 7 SCC 439. In Stainislaus's case, the Apex Court upheld the provisions of the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968 and the Orissa Freedom of Religion Act, 1967. In Satya Ranjan Majhi's case, the Apex Court was dealing with a petition wherein the provisions of Sections 2 and 7 of the Orissa Freedom of Religion Act, 1967 and Rules 4 & 5 of the Orissa Freedom of Religion Rules, 1989, had been challenged.
3. In Stainislaus's case, the Apex Court dealing with Article 25 (1) of the Constitution of India and especially the word 'propagate' held as follows:
15. Article 25 (1) of the Constitution reads as follows:
25 (1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion.
15-A. Counsel for the appellant has argued that the right to 'propagate' one's religion means the right to convert a person to one's own religion. On that basis, counsel has argued further that the right to convert a person to one's own religion is a fundamental right guaranteed by Article 25 (1) of the Constitution.
16. The expression 'propagate' has a number of meanings, including "to multiply specimens of (a plant, animal, disease etc.) by any process of natural reproduction from the parent stock", but that cannot, for obvious reasons, be the meaning for purposes of Article 25 (1) of the Constitution. The Article guarantees a right of freedom of religion, and the expression 'propagate' cannot therefore be said to have been used in a biological sense.
17. The expression 'propagate' has been defined in the Shorter Oxford Dictionary to mean "to spread from person to person, or from place to place, to disseminate, diffuse (a statement, belief, practise, etc.)".
18. According to the Century Dictionary (which is an Encyclopedic Lexicon of the English Language) Vol. VI, 'propagate' means as follows:-
To transmit or spread from person to person or from place to place; carry forward or onward; diffuse; extend; as to propagate a report; to propagate the Christian religion.
19. We have no doubt that it is in this sense that the word 'propagate' has been used in Article 25 (1), for what the Article grants is not the right to convert another person to one's own religion, but to transmit or spread one's religion by an exposition of its tents. It has to be remembered that Article 25 (1) guarantees "freedom of conscience" to every citizen, and not merely to the followers of one particular religion, and that, in turn, postulates that there is no fundamental right to convert another person to one's own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the "freedom of conscience" guaranteed to all the citizens of the country alike.
20. The meaning of guarantee under Article 25 of the Constitution came up for consideration in this Court in Ratilal Panachand Gandhi v. The State of Bombay, (1954) SCR 1055 = (AIR 1954 SC 388) and it was held as follows:-
Thus, subject to the restrictions which this Article imposes, 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.
This Court has given the correct meaning of the Articles, and we find no justification for the view that it grants a fundamental right to convert persons to one's own religion. It has to be appreciated that the freedom of religion enshrined in the Article is not guaranteed in respect of one religion only, but covers all religions alike, and it can be properly enjoyed by a person if he exercises his right in a manner commensurate with the like freedom of persons following the other religions. 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.
21. It has next been argued by counsel that the Legislatures of Madhya Pradesh and Orissa States did not have legislative competence to pass the Madhya Pradesh Act and the Orissa Act respectively, because their laws regulate 'religion' and fall under the Residuary Entry 97, in List I of the Seventh Schedule to the Constitution.
22. It is not in controversy that the Madhya Pradesh Act provides for the prohibition of conversion from one religion to another by use of force or allurement, or by fraudulent means, and matters incidental thereto. The expressions "allurement" and "fraud" have been defined by the Act. Section 3 of the Act prohibits conversion by use of force or by allurement or by fraudulent means and Section 4 penalises such forcible conversion. Similarly, Section 3 of the Orissa Act prohibits forcible conversion by the use of force or by inducement or by any fraudulent means, and Section 4 penalises such forcible conversion. The Acts therefore, clearly provide for the maintenance of public order for, if forcible conversion had not been prohibited, that would have created public disorder in the States.
23. The expression "Public order" is of a wide connotation. It must have the connotation which it is meant to provide at the very first Entry in List II. It has been held by this Court in Ramesh Thapper v. The State of Madras, (1950) SCR 594 = (AIR 1950 SC 124) that "public order" is an expression of wide connotation and signifies state of tranquility which prevails among the members of a political society as a result of internal regulations enforced by the Government which they have established.
24. Reference may also be made to the decision in Ramjilal Modi v. State of U. P., (1957) SCR 860 = (AIR 1957 SC 620) where this Court has held that the right of freedom of religion guaranteed by Articles 25 and 26 of the Constitution is expressly made subject to public order, morality and health, and that
it cannot be predicated that freedom of religion can have no bearing whatever on the maintenance of public order or that a law creating an offence relating to religion cannot under any circumstances be said to have been enacted in the interests of public order.
It has been held that these two Articles in terms contemplate that restrictions may be imposed on the rights guaranteed by them in the interests of public order. Reference may as well be made to the decision in Arun Ghosh v. State of West Bengal, AIR 1970 SC 1228 = (1970 Cri LJ 1136) where it has been held that if a thing disturbs the current of the life of the community, and does not merely affect an individual, it would amount to disturbance of the public order. Thus, if an attempt is made to raise communal passions, e.g., on the ground that some one has been "forcibly" converted to another religion, it would, in all probability, give rise to an apprehension of a breach of the public order, affecting the community at large. The impugned Acts therefore fall within the purview of Entry 1 of List II of the Seventh Schedule as they are meant to avoid disturbances to the public order by prohibiting conversion from one religion to another in a manner reprehensible to the conscience of the community. The two Acts do not provide for the regulation of religion and we do not find any justification for the argument that they fall under Entry 97 of List I of the Seventh Schedule.
4. Dr. Subramanian Swamy has drawn our attention to the Collected Works of Mahatma Gandhi, wherein certain questions were posed by Mahatma Gandhi and answered by himself:
Would you prevent missionaries coming to India in order to baptize?
Who am I to prevent them? If I had power and could legislate, I should certainly stop all proselytizing. It is the cause of much avoidable conflict between classes and unnecessary heart-burning among missionaries. But I should welcome people of any nationality if they came to serve here for the sake of service. In Hindu households the advent of a missionary has meant the disruption of the family coming in the wake of change of dress, manners, language, food and...
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