Originalism as a doctrine of constitutional interpretation means that provisions of the Constitution should be interpreted in accordance with the intent of its framers. Usually, this doctrine falls short because it does not account for the change in societal conditions that have occurred since its making. It is also contingent on our ability to accurately uncover the intentions of the framers of the Indian Constitution. However, in the context of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, this doctrine is of considerable assistance. In particular, it allows us to understand how, in the recent months, various state legislatures have blurred the dichotomy between mass and individual conversions so assiduously reasoned by our framers.
The question of religious conversion had been widely discussed in the Constituent Assembly, across several days. Members, across political parties, were concerned about the spectre of mass conversions in colonial India. While different solutions were discussed to address this issue, a consistent line that seems to emerge from the study of these debates is that the framers believed that an individual had the right to voluntarily change their religion. This right was a part of the freedom of conscience, and was to be preserved even when addressing mass religious conversions.
A right to convert?
Speaking during a debate on Article 19 of the Draft Constitution, K. Santhanam, elected to the Assembly on a Congress ticket, acknowledged that mass conversion exercises had previously been undertaken by Christian missionaries in different parts of the country, and people reservations in this regard. He then observed that great care had to be taken to ensure that an “unlimited right to conversion” was not bestowed by the Constitution. Following him, Rohini Kumar Chaudhari, an elected member belonging to the Congress from Assam, stated that while he had no objection to the propagation of religion per se, the drafters should have incorporated provisions to prevent propagandists from slinging mud at other religions. In this vein, he further referenced how missionaries across the country had described Lord Krishna in “abominable” terms.
Even political leader K.M. Munshi, who addressed the House on the same day, stated that the word ‘propagate’ brought back memories of missionaries in the old regime. For many leaders of the national movement, the evangelising activities of the missionaries in the early part of the 20th century posed a threat of national disintegration. For them, several of these missionaries, who also enjoyed the blessings of the colonial power, had only served to divide the community, and to hinder the goal of self-rule.
This is not to say that all members of the House were measured in their response to the exercise of mass conversions. One member characterised these conversion exercises as an ‘evil practice’, while another went so far as to say that Article 25 was nothing but a charter for Hindu enslavement.
However, speaking in the backdrop of violent forcible conversions through the 1920s, the concerns of at least some of the members of the House were not unfounded. These members even tried to grapple with this issue through various amendments. When discussing the Interim Report on Fundamental Rights, Sardar Vallabbhai Patel tabled an amendment to add a proviso in the text of Article 19 to prohibit any conversion brought about by fraud, undue influence, or coercion. K.M. Munshi went a step ahead and sought to prohibit the conversion of all minors. Tajamul Hussain sought to proscribe religious conversions through educational institutions reliant on public funds. None of these amendments, though, ultimately came to be accepted by the Assembly.
Mass vs individual conversion
While we lack the material to say what motivated the Assembly to negate these amendments, the speech by Sardar Patel at the conclusion of the debate on amendments is noteworthy. Patel observed that the issue of conversion was not free from difficulties, and it was a matter of fact that there had been mass conversions and conversions by force, coercion and undue influence. (3.20.213, CAD) However, he then said:
“Now, we need not go into all the reasons or the forces that led to these conversions, but if the facts are recognised, we who have to live in this country and find a solution to build up a nation, we need not introduce any heat into this controversy to find a solution.”
Mass conversions, therefore, were clearly a cause of concern in the Assembly, and according to Patel, they would perhaps even have to be regulated by the law. However, at the same time, a careful reading of the debates seems to suggest that there was a dichotomy between mass conversions and individual conversions in the minds of the framers.
The latter appear to have been beyond the pale of controversy. K. Santhanam, for one, himself observed that if any man is converted voluntarily owing to a freedom of conscience, there could be no objection. Similarly, K.M. Munshi observed that so long as religion was religion, conversion by free exercise of conscience had to be recognised. Even Algu Rai Shastri and Purushottam Das Tandon, both elected members from the United Provinces and both of whom spoke in favour of an amendment to prohibit conversion of minors, stated that they had no issue if a person on attaining adulthood chose to convert, or if they did so after cool deliberation. Needless to say, members such as Frank Anthony, former head of the All India Anglo-Indian Association, elected from Central Provinces and Berar, and Rev. J.J. M. Nichols Roy, elected from Assam, who opposed the amendment prohibiting the conversion of minors, recognised conversion as an important facet of one’s conscience. T.T. Krishnamachari, a member of the Drafting Committee from Madras, even went so far as to say that conversion itself may not be an issue in independent India because the Constitution would strive towards removing the inequality of the caste system.
It, therefore, appears after a reading of these debates that while members of the Constituent Assembly held differing views on how the issue of mass conversions ought to be addressed, they at least seemed to be in agreement on protecting the individual’s right to convert. It was an integral part of one’s freedom of conscience. Barring ‘fraud’, ‘undue influence’, and ‘violence’, they did not conceive of many other restrictions on this right either. Importantly, none of these amendments made it to the text of the Constitution. Article 25 of the Constitution, as it stands today, only subjects the right to change one’s religion to restrictions of decency, public order and morality, and to the other provisions of Part III.
While mass conversions can arguably be regulated under the restriction of ‘public order’ (although there remain concerns about the social legitimacy of such measures), it seems unlikely that same restriction would also extend to individual conversions. By blurring the line between the two and encroaching upon the right guaranteed under Article 25, the State has, in turn, also complicated how secularism plays out in society.
The author is an advocate at the Bombay High Court. Views are personal.