PILSARC Editorial
How do we protect our heritage? On what basis? Through whom? India has a rich heritage which goes beyond the tourist money earning monuments in Delhi, Jaipur, Fatehpur Sikri, Bodh Gaya, Rajasthan, Khajuraho and various temples. The 'active' sites are protected by their use and endowments. The tourist sites have been privileged, but the neglected sites suffer from dilapidation and decay.
The Ancient Monuments and Archaeological Sites and Remains Act 1958 (originally enacted in 1904 by the British government in India) and the Antiquities and Art Treasures Act 1972 do not provide an adequate framework and are jumbled in their empowerment and aims. Separate legislation like for Hampi, Champaner and Majuli experiment with originality, functionability and conservation. Meanwhile, private parties have extended into the fray – some sophisticated and some with the mind set of business contractors.
In the absence of comprehensive and rigorous laws regulating heritage conservation in India, the Supreme Court has been more advanced than the executive or legislature in providing protection to heritage in India. The Supreme Court has established that heritage is part of Article 21 of the Constitution, and in numerous cases involving conflicts between heritage conservation and industrial development, the Court has ruled in favour of heritage conservation. But the Court cannot really deal with the how-to-do features of heritage conservation.
Heritage extends beyond monuments and sites to landscapes, customs, paintings, traditional knowledge, living areas, and other facets of intangible heritage such as songs. The National Commission for Heritage Sites Bill 2009 has defined the term “heritage site” under section 2 (c) of the Bill. This definition is essentially similar to the 1972 World Heritage Convention definition and limits its scope to heritage of ‘outstanding universal value.’ Therefore heritage of national and local importance is outside the purview of this Bill.
PILSARC is involved in an ongoing project on heritage conservation and law in collaboration with the School of Planning and Architecture. It is hoped that this project will lead to a draft national law which incorporates broader understandings of heritage conservation. For more details on the project, please contact the PILSARC office.
Tuesday, July 28, 2009
Thursday, July 23, 2009
Mother's Right to Choose
Mother's Right to Choose
Rajeev Dhavan
Should the pregnancy of a mentally retarded rape victim be terminated? Can one go one step further and order her sterilization? On 21 July 2009, the Supreme Court reversed the Punjab and Haryana High Court’s decision of 17 July 2009 to rule that such a mentally retarded may have a baby. This is Chief Justice Balakrishnan’s victory for justice and common sense to prevent society from abdicating its responsibility to unborn children and those yet to be born. The rape victim was born on 8 December 1991, and, being mildly mentally retarded, placed under the guardianship of the Missionary of Charity till 28 December 1991 and then to the government’s Institute of Mentally Retarded Children in Chandigarh. Restless, she ran away on 20 March 2005 to be returned by the police to the Nari Niketan and then on 13 March 2009 to Ashreya – both being government institutions. Unfortunately, a Roshan Ara Khatun claimed, and then rejected, her as a long lost daughter. It is now clear that the victim was repeatedly raped by an employee. That part of the story remains hidden and needs to go further. On 18 May 2009, a Medical Board found her to be 8-10 weeks pregnant.
What was to be done with the unborn child? The two State governments and the medical authorities descended like a ton of bricks against the birth of the unborn child. On 27th of May 2009, the Medical Board recommended the abortion of the foetus on the basis that she was a mild retard, would have difficulty looking after the baby, genetic traits could visit the baby. Eugenics is a frightening reason for disinheriting the future in the case of a mild retard. But, the ‘termination’ of unborn baby was supported by the Chandigarh administration (through lawyer Anupam Gupta) claiming to act as the parent (parens patriae) to the woman; and, perforce, grand parent-in-law to the unborn child. The Advocate General of Punjab, Mr. H.S. Mattewal, spoke of humanity in favour of killing the foetus. It was left to the amicus curiae before the High Court, my friend, former Advocate General, R.S. Cheema assisted by his junior Tanu Bedi (who argued the case in the Supreme Court) to “debunk … the eugenic myth” and urge that the womb-baby could be totally normal. This set the stage for the second argument that, in any event, humanity required society to take care of even orphaned babies! Cheema was supported by Attorney General Hooda from Haryana.
The Abortion Act (on Medical Termination of Pregnancy) 1971 is harsh in presenting both eugenic and welfare aspects of the matter. Abortion is made easier in rape cases; but eugenics values are brought to abort if there is a substantial risk of physical and mental abnormalities being passed on, to cause serious handicaps for the child. But, here the Chandigarh government wanted to apply it to a mildy retarded person for whom it was acting as a guardian parent. What a parent? Unfortunately, the law, governments and people can be merciless towards people with disabilities. You cannot kill the living, but charity towards the unborn is easily blighted. Some humanity in attitudes was brought in by the Disabilities (Equal Opportunities and Full Participation) Act 1995 followed by the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act 1999. These latter legislations set the tone for society and state acting as a true parent for the disabled. In its attitudes, Indian society and government is miles behind. Instead of resolving its own humanitarian duties, Chandigarh Administration thought the problem be passed on to the Court.
The High Court having received one set of medical report invited an expert medical body to consider a twelve points parameter. The experts found her a mild retard incapable of raising a child; and leaving it open as to whether abnormalities can be passed on to the child. What was taken against her was also her lack of family and wealth. Thus, this becomes a class and poverty issue as well in favour of the rich and privileged.
This whole approach could result in society killing of unborn babies of retard or disabled mothers from poor or orphaned background. Whatever happened to society and the State’s responsibility! There are few social policy discussions on this. American Justice Holmes’s advocacy of sterilization in Buck vs. Bell (1927) where “Three generations of imbeciles were enough” was based on 19th century eugenics and humanity. The whole approach of the Punjab and Haryana High Court (supported by two governments) as seen through its 12 point grid seemed to ask how ‘inconvenient’ would it be for society to allow the birth of and rear this possibly mentally retarded child of a poor orphan? The original India’s abortion act of 1971 confined the mentally ill provisions to “lunatics”. After 2002, it included “mentally retarded persons”. This was a cry for a less rigid approach. Without getting into Catholic Christian and Muslim views on abortion, there is a vast difference between the right of abortion of women based on consent and the state or courts ordering the death of an unborn baby. We have to start with the assumption that all babies have a right to be born except if the mother does not consent. Some argue that this is enough; other nations say that there must be some public interest risk to the mother. Good or bad eugenics is not the answer. It smacks of “survival of the fittest” through a process of de-selection of children of even the mildly mentally retarded! If we go this far, should there be a sterilization programme also?
If history has been unkind, especially to mentally disabled, there are also stories of what such disabled are capable of, if given equal opportunities. Theoretically we may exhort society and the state to promise to look after the disabled. But we know that, in fact, this is done under miserable circumstances. Money, time and resources are needed – especially in India where care systems collapse and drift and sink into entropic decay. But is that a reason for removing unborn babies from our social midst? If that argument is taken further, it can be extended to those alive, who are too old, too difficult to look after or ‘redundant’ or a drain to the political economy and of no ‘use’.
All this seems like an event where medical experts act as Roman emperors and put their thumbs down for those whom they feel society does not need; and are better off dead.
For the moment, the Supreme Court has stepped in and allowed the baby to be born – indicating that institutional care and help is necessary. A stern warning needs to be given to institutions and courts who order abortions for the mentally ill on the anvil of inconvenience.
Implicit in the Punjab High Court’s decision was an attitude that deals with life and death in too pragmatic a way. Fortunately, the Supreme Court was there to reverse the damage. But it cannot monitor all decisions; nor can it totally shift our focus from an inconvenience approach to something on a surer moral foundation.
Rajeev Dhavan
Should the pregnancy of a mentally retarded rape victim be terminated? Can one go one step further and order her sterilization? On 21 July 2009, the Supreme Court reversed the Punjab and Haryana High Court’s decision of 17 July 2009 to rule that such a mentally retarded may have a baby. This is Chief Justice Balakrishnan’s victory for justice and common sense to prevent society from abdicating its responsibility to unborn children and those yet to be born. The rape victim was born on 8 December 1991, and, being mildly mentally retarded, placed under the guardianship of the Missionary of Charity till 28 December 1991 and then to the government’s Institute of Mentally Retarded Children in Chandigarh. Restless, she ran away on 20 March 2005 to be returned by the police to the Nari Niketan and then on 13 March 2009 to Ashreya – both being government institutions. Unfortunately, a Roshan Ara Khatun claimed, and then rejected, her as a long lost daughter. It is now clear that the victim was repeatedly raped by an employee. That part of the story remains hidden and needs to go further. On 18 May 2009, a Medical Board found her to be 8-10 weeks pregnant.
What was to be done with the unborn child? The two State governments and the medical authorities descended like a ton of bricks against the birth of the unborn child. On 27th of May 2009, the Medical Board recommended the abortion of the foetus on the basis that she was a mild retard, would have difficulty looking after the baby, genetic traits could visit the baby. Eugenics is a frightening reason for disinheriting the future in the case of a mild retard. But, the ‘termination’ of unborn baby was supported by the Chandigarh administration (through lawyer Anupam Gupta) claiming to act as the parent (parens patriae) to the woman; and, perforce, grand parent-in-law to the unborn child. The Advocate General of Punjab, Mr. H.S. Mattewal, spoke of humanity in favour of killing the foetus. It was left to the amicus curiae before the High Court, my friend, former Advocate General, R.S. Cheema assisted by his junior Tanu Bedi (who argued the case in the Supreme Court) to “debunk … the eugenic myth” and urge that the womb-baby could be totally normal. This set the stage for the second argument that, in any event, humanity required society to take care of even orphaned babies! Cheema was supported by Attorney General Hooda from Haryana.
The Abortion Act (on Medical Termination of Pregnancy) 1971 is harsh in presenting both eugenic and welfare aspects of the matter. Abortion is made easier in rape cases; but eugenics values are brought to abort if there is a substantial risk of physical and mental abnormalities being passed on, to cause serious handicaps for the child. But, here the Chandigarh government wanted to apply it to a mildy retarded person for whom it was acting as a guardian parent. What a parent? Unfortunately, the law, governments and people can be merciless towards people with disabilities. You cannot kill the living, but charity towards the unborn is easily blighted. Some humanity in attitudes was brought in by the Disabilities (Equal Opportunities and Full Participation) Act 1995 followed by the National Trust for the Welfare of Persons with Autism, Cerebral Palsy, Mental Retardation and Multiple Disabilities Act 1999. These latter legislations set the tone for society and state acting as a true parent for the disabled. In its attitudes, Indian society and government is miles behind. Instead of resolving its own humanitarian duties, Chandigarh Administration thought the problem be passed on to the Court.
The High Court having received one set of medical report invited an expert medical body to consider a twelve points parameter. The experts found her a mild retard incapable of raising a child; and leaving it open as to whether abnormalities can be passed on to the child. What was taken against her was also her lack of family and wealth. Thus, this becomes a class and poverty issue as well in favour of the rich and privileged.
This whole approach could result in society killing of unborn babies of retard or disabled mothers from poor or orphaned background. Whatever happened to society and the State’s responsibility! There are few social policy discussions on this. American Justice Holmes’s advocacy of sterilization in Buck vs. Bell (1927) where “Three generations of imbeciles were enough” was based on 19th century eugenics and humanity. The whole approach of the Punjab and Haryana High Court (supported by two governments) as seen through its 12 point grid seemed to ask how ‘inconvenient’ would it be for society to allow the birth of and rear this possibly mentally retarded child of a poor orphan? The original India’s abortion act of 1971 confined the mentally ill provisions to “lunatics”. After 2002, it included “mentally retarded persons”. This was a cry for a less rigid approach. Without getting into Catholic Christian and Muslim views on abortion, there is a vast difference between the right of abortion of women based on consent and the state or courts ordering the death of an unborn baby. We have to start with the assumption that all babies have a right to be born except if the mother does not consent. Some argue that this is enough; other nations say that there must be some public interest risk to the mother. Good or bad eugenics is not the answer. It smacks of “survival of the fittest” through a process of de-selection of children of even the mildly mentally retarded! If we go this far, should there be a sterilization programme also?
If history has been unkind, especially to mentally disabled, there are also stories of what such disabled are capable of, if given equal opportunities. Theoretically we may exhort society and the state to promise to look after the disabled. But we know that, in fact, this is done under miserable circumstances. Money, time and resources are needed – especially in India where care systems collapse and drift and sink into entropic decay. But is that a reason for removing unborn babies from our social midst? If that argument is taken further, it can be extended to those alive, who are too old, too difficult to look after or ‘redundant’ or a drain to the political economy and of no ‘use’.
All this seems like an event where medical experts act as Roman emperors and put their thumbs down for those whom they feel society does not need; and are better off dead.
For the moment, the Supreme Court has stepped in and allowed the baby to be born – indicating that institutional care and help is necessary. A stern warning needs to be given to institutions and courts who order abortions for the mentally ill on the anvil of inconvenience.
Implicit in the Punjab High Court’s decision was an attitude that deals with life and death in too pragmatic a way. Fortunately, the Supreme Court was there to reverse the damage. But it cannot monitor all decisions; nor can it totally shift our focus from an inconvenience approach to something on a surer moral foundation.
Tuesday, July 21, 2009
Stop the Madness
PILSARC Editorial
“I read that Rs.5 lakh was spent on a helicopter and Rs5 lakh was spent on petrol. It went to Meerut, Ghaziabad and Mathura. Why did it go? To give Rs25,000 to a girl raped in Meerut. In another rape case of a deaf and mute woman, her husband was given Rs25,000. In a third, the father of a girl who was raped and killed was given Rs75,000...I say (the victims should) throw such money at Maya and tell her that if she (Maya) is raped they are ready to pay her Rs1 crore...”, these were the U.P. Congress Chief, Rita Bahuguna Joshi's comments expressing anguish at the plight of Dalit women raped in Uttar Pradesh and trying to draw chief minister Mayawati's attention to crime against women. In spite of her intentions, the form in which these statements came out were certainly derogatory, triggering of an extreme reaction from the BSP cadre, followed by legal action.
A portion of her house was set on fire allegedly by the BSP activists and she was detained by the police for the remarks made. An FIR was lodged in the Majhola police station under the Schedule Caste, Scheduled Tribe (Prevention of Atrocities) Act, 1989; section 153A (promoting enmity between two groups on ground of religion or caste) and 509 (word or gesture aimed at outraging the modesty of a woman) of the IPC and section 7 of the Criminal Law Amendment Act. On 16th July, she was arrested and remanded to 14 days’ judicial custody and released on interim-bail on 18th July.
Ms. Joshi’s defence to the remarks made, is that she wanted to highlight the plight of the Dalit women. Ms. Joshi’s statements were certainly not in good taste, bordering on inflammatory. As Mr. Yogendra Yadav puts it: “In UP, politicians do not know how to be politically offensive without being personally vulgar”. In spite of being derogatory, Ms. Joshi’s remarks have some grain of truth in them – according to a data 50% of the complaints registered with the National Commission for Women (NCW) are from UP.
The UP Government was paying compensation in cases where Dalits were victims of rape or murder (ironically, the Mayawati administration was only following the compensation norms fixed by the Narasimha Rao government in 1995 in the form of rules framed under SC/STs Prevention of Atrocities Act 1980). The rules prescribe that in the case of rape, the Dalit victim is entitled to compensation of Rs 50,000 with the proviso that 50% of that sum should be paid immediately after her medical examination and the balance at the conclusion of the trial. On 17th July, Mayawati said in a press conference that her party did not approve of the monetary compensation for rape and murder victims given under the SC, ST Act as it hurt the pride of Dalits, and she would repeal the SC/STs Act.
Two years ago, Mayawati had sparked controversy by attacking Mulayam Yadav, then chief minister, for his own plan to compensate Muslim rape victims, calling on Muslims to pay hefty compensation to Yadav's daughter if she were raped. Today, Ms. Joshi has switched roles with Mayawati. In this political din, the real issue of Dalit women being raped has been forgotten. On average, a woman is raped every hour in the country – only one in 70 cases get reported.
PILSARC condemns the violent reaction by the BSP cadre by burning Ms. Joshi’s house. Such a response will only add to the problem. We believe that Ms. Joshi’s statements as well as BSP reaction were extreme and unwarranted. The people involved in torching Ms. Joshi’s house, should be booked and punished as a deterrent against such acts in the future. Congress should take responsibility for Ms. Joshi’s derogatory remarks and seriously think whether she deserves to continue as the UP Congress Chief. A well functioning democracy calls for dialogue and debate, not rabid statements and arson.
“I read that Rs.5 lakh was spent on a helicopter and Rs5 lakh was spent on petrol. It went to Meerut, Ghaziabad and Mathura. Why did it go? To give Rs25,000 to a girl raped in Meerut. In another rape case of a deaf and mute woman, her husband was given Rs25,000. In a third, the father of a girl who was raped and killed was given Rs75,000...I say (the victims should) throw such money at Maya and tell her that if she (Maya) is raped they are ready to pay her Rs1 crore...”, these were the U.P. Congress Chief, Rita Bahuguna Joshi's comments expressing anguish at the plight of Dalit women raped in Uttar Pradesh and trying to draw chief minister Mayawati's attention to crime against women. In spite of her intentions, the form in which these statements came out were certainly derogatory, triggering of an extreme reaction from the BSP cadre, followed by legal action.
A portion of her house was set on fire allegedly by the BSP activists and she was detained by the police for the remarks made. An FIR was lodged in the Majhola police station under the Schedule Caste, Scheduled Tribe (Prevention of Atrocities) Act, 1989; section 153A (promoting enmity between two groups on ground of religion or caste) and 509 (word or gesture aimed at outraging the modesty of a woman) of the IPC and section 7 of the Criminal Law Amendment Act. On 16th July, she was arrested and remanded to 14 days’ judicial custody and released on interim-bail on 18th July.
Ms. Joshi’s defence to the remarks made, is that she wanted to highlight the plight of the Dalit women. Ms. Joshi’s statements were certainly not in good taste, bordering on inflammatory. As Mr. Yogendra Yadav puts it: “In UP, politicians do not know how to be politically offensive without being personally vulgar”. In spite of being derogatory, Ms. Joshi’s remarks have some grain of truth in them – according to a data 50% of the complaints registered with the National Commission for Women (NCW) are from UP.
The UP Government was paying compensation in cases where Dalits were victims of rape or murder (ironically, the Mayawati administration was only following the compensation norms fixed by the Narasimha Rao government in 1995 in the form of rules framed under SC/STs Prevention of Atrocities Act 1980). The rules prescribe that in the case of rape, the Dalit victim is entitled to compensation of Rs 50,000 with the proviso that 50% of that sum should be paid immediately after her medical examination and the balance at the conclusion of the trial. On 17th July, Mayawati said in a press conference that her party did not approve of the monetary compensation for rape and murder victims given under the SC, ST Act as it hurt the pride of Dalits, and she would repeal the SC/STs Act.
Two years ago, Mayawati had sparked controversy by attacking Mulayam Yadav, then chief minister, for his own plan to compensate Muslim rape victims, calling on Muslims to pay hefty compensation to Yadav's daughter if she were raped. Today, Ms. Joshi has switched roles with Mayawati. In this political din, the real issue of Dalit women being raped has been forgotten. On average, a woman is raped every hour in the country – only one in 70 cases get reported.
PILSARC condemns the violent reaction by the BSP cadre by burning Ms. Joshi’s house. Such a response will only add to the problem. We believe that Ms. Joshi’s statements as well as BSP reaction were extreme and unwarranted. The people involved in torching Ms. Joshi’s house, should be booked and punished as a deterrent against such acts in the future. Congress should take responsibility for Ms. Joshi’s derogatory remarks and seriously think whether she deserves to continue as the UP Congress Chief. A well functioning democracy calls for dialogue and debate, not rabid statements and arson.
Without Prejudice
WITHOUT PREJUDICE
Regulation of Surrogacy in India
Gayatri Sharma
The Indian Council for Medical Research [ICMR] approached PILSARC with a draft of a proposed legislation to regulate assisted reproductive technology in India. PILSARC undertook to review the ICMR draft and suggest changes and on 15 June 2006, PILSARC handed over to the ICMR its revised proposals for an ART legislation titled “the Assisted Reproductive Technology (Regulation) Bill, 2006.” The ICMR circulated the revised draft amongst relevant experts for comments and suggestions. The revised draft is available online.
The desire for children and the social pressure on women to conceive is undoubtedly high. In Spain, Maria del Carmen Bousada de Lara became the oldest woman to give birth at the age of 66 in 2006. Her death two years later brought to light that she had lied about her age to the fertility clinic in order to avail of fertility treatment. In India, Rajo Devi Lohan, gave birth to her first child at the age of 70 with the aid of in vitro fertilization (IVF) treatment in November 2008. Rajo Devi's husband had married her younger sister in an attempt to have children, but when that failed and social ostracism grew, a neighbour informed the family of IVF. A 72 year old woman in the U.K has reportedly spent 30,000 Pounds on IVF in the attempt to conceive. IVF is a complicated and invasive procedure, yet thousands of women seek to undergo the treatment or alternatively search for surrogate mothers.
It is in this context that the Assisted Reproductive Technology (Regulation) Bill and Rules 2008, drafted by the ICMR in consultation with PILSARC needs to be examined. PILSARC did not attempt to draft rules or regulations for the implementation of the legislation as such an exercise would have required more time and expert interaction. The current ART Bill 2008 is a much modified version of the PILSARC draft. It is widely assumed that the Bill legalizes commercial surrogacy; however, in fact both the PILSARC draft and the ART Bill 2008 are silent on the issue of commercial surrogacy. Section 2 (t) of the ART Bill 2008 defines surrogacy agreement as a contract between the person(s) availing of assisted reproductive technology and the surrogate mother.
There are several important differences between the PILSARC version of the Bill and the current ART Bill:
* A definition of 'couple' has been added in the ART Bill 2008, which "means the persons living together and having sexual relationship that is legal in the country/countries of which they are citizens or they are living in." This definition did not exist in the PILSARC version. Section 32 (1) of the Bill states that "Subject to the provisions of this Act and the rules and regulations made thereunder, ART shall be available to persons including single persons, married couples and unmarried couples." Same sex couples have not been included in this clause and it is implied that same sex couples living in or citizens of countries that criminalize homosexuality cannot avail of ART facilities in India. This includes most Indian gay couples. Section 377 of the Indian Penal Code was recently read down by the Delhi High Court; however, homosexuality remains illegal in other States of India and it is unclear how the legislature will react to this judgment. A verdict by the Supreme Court is awaited on the constitutional validity of section 377.
* Section 20 (10) of the ART Bill 2008 states that "No assisted reproductive technology clinic shall consider conception by surrogacy for patients for whom it would normally be safe to carry a baby to term. Provided that where it is determined that unsafe or undesirable medical implications of such conception may arise, the use of surrogacy may be permitted." The PILSARC version did not stipulate this restriction.
* Section 38 (11) of the PILSARC draft - "If the person or persons who have availed of ART do not accept the custody of the child, the surrogate mother shall be entitled to claim all expenses, including maintenance, in relation to and on behalf of such child from them" - has been deleted. However, section 34 of the ART Bill 2008 states that all expenses of the surrogate mother related to the pregnancy achieved in furtherance of ART shall be borne by the couple or individual seeking surrogacy until the child is ready to be delivered, as per medical advice, to the biological parent or parents. Section 38 (11) of the PILSARC draft is far clearer and prevents a repetition of the Baby Manji case, where a Japanese couple divorced and no longer wanted the child carried by an Indian surrogate mother.
* Section 34 (16) of the ART Bill 2008 states that "In the event that the woman intending to be a surrogate mother is married, the consent of her spouse shall be required before she may act as such surrogate." This requirement did not exist in the PILSARC version.
* Extensive Rules have been added to the ART Bill 2008. These need to be reworked on as the sample application forms/consent forms at times contradict the Bill. For instance, Forms D, E, and F require the signature of a 'couple' or a husband and wife for availing of surrogacy, even though the Bill permits single individuals from availing of surrogacy.
* There are other differences in the two Bills; including additions of definitions, changes in the composition of the National Board and an increase in its powers to conduct research on human embryos, expansion on the duties of an ART clinic, regulation of research on embryos, and rights and duties of patients, donors, surrogates and children that have been made in the ART Bill 2008.[1]
The ART Bill 2008 is conservative. While the idea of regulating surrogacy is pragmatic and potentially beneficial to both the surrogate mother and the couple or individual who wish to avail of a surrogate, the ART Bill 2008 imposes restrictions that reinforce heterosexual and patriarchal assumptions.
The ART Bill needs to either delete its definition of 'couple' or expand it significantly to include all those involved in an intimate relationship and impliedly capable of looking after a child. It will then be clear that the Bill does not discriminate between couples in availing of ART facilities. Section 20 (10) of the ART Bill is confusing. A woman may be biologically capable of giving birth but unwilling to do so for any number of reasons. Sarah Jessica Parker has been rumoured to avail of a surrogate mother as she did not want pregnancy to interfere with her acting career. By refusing such women the right to avail of surrogacy, the Bill is playing a discriminatory moral game, which has not been justified by the ICMR as no statement of objects is provided in the Bill. Section 34 (16) of the Bill is based on an assumption the wife cannot make decisions pertaining to her own body without the consent of her husband, and that her husband actually cares about this decision. It neglects the reality that many married couples are separated and that women seek economic independence irrespective of their husband's views.
The ART Bill 2008 has generated criticism from women's organisations and legal groups such as Sama and Lawyers Collective. Greater consultations are necessary with lawyers, feminists, child activists, and medical practitioners before such a Bill can be enacted.
[1] For a full list of the differences between the two Bills, please contact the PILSARC office.
Regulation of Surrogacy in India
Gayatri Sharma
The Indian Council for Medical Research [ICMR] approached PILSARC with a draft of a proposed legislation to regulate assisted reproductive technology in India. PILSARC undertook to review the ICMR draft and suggest changes and on 15 June 2006, PILSARC handed over to the ICMR its revised proposals for an ART legislation titled “the Assisted Reproductive Technology (Regulation) Bill, 2006.” The ICMR circulated the revised draft amongst relevant experts for comments and suggestions. The revised draft is available online.
The desire for children and the social pressure on women to conceive is undoubtedly high. In Spain, Maria del Carmen Bousada de Lara became the oldest woman to give birth at the age of 66 in 2006. Her death two years later brought to light that she had lied about her age to the fertility clinic in order to avail of fertility treatment. In India, Rajo Devi Lohan, gave birth to her first child at the age of 70 with the aid of in vitro fertilization (IVF) treatment in November 2008. Rajo Devi's husband had married her younger sister in an attempt to have children, but when that failed and social ostracism grew, a neighbour informed the family of IVF. A 72 year old woman in the U.K has reportedly spent 30,000 Pounds on IVF in the attempt to conceive. IVF is a complicated and invasive procedure, yet thousands of women seek to undergo the treatment or alternatively search for surrogate mothers.
It is in this context that the Assisted Reproductive Technology (Regulation) Bill and Rules 2008, drafted by the ICMR in consultation with PILSARC needs to be examined. PILSARC did not attempt to draft rules or regulations for the implementation of the legislation as such an exercise would have required more time and expert interaction. The current ART Bill 2008 is a much modified version of the PILSARC draft. It is widely assumed that the Bill legalizes commercial surrogacy; however, in fact both the PILSARC draft and the ART Bill 2008 are silent on the issue of commercial surrogacy. Section 2 (t) of the ART Bill 2008 defines surrogacy agreement as a contract between the person(s) availing of assisted reproductive technology and the surrogate mother.
There are several important differences between the PILSARC version of the Bill and the current ART Bill:
* A definition of 'couple' has been added in the ART Bill 2008, which "means the persons living together and having sexual relationship that is legal in the country/countries of which they are citizens or they are living in." This definition did not exist in the PILSARC version. Section 32 (1) of the Bill states that "Subject to the provisions of this Act and the rules and regulations made thereunder, ART shall be available to persons including single persons, married couples and unmarried couples." Same sex couples have not been included in this clause and it is implied that same sex couples living in or citizens of countries that criminalize homosexuality cannot avail of ART facilities in India. This includes most Indian gay couples. Section 377 of the Indian Penal Code was recently read down by the Delhi High Court; however, homosexuality remains illegal in other States of India and it is unclear how the legislature will react to this judgment. A verdict by the Supreme Court is awaited on the constitutional validity of section 377.
* Section 20 (10) of the ART Bill 2008 states that "No assisted reproductive technology clinic shall consider conception by surrogacy for patients for whom it would normally be safe to carry a baby to term. Provided that where it is determined that unsafe or undesirable medical implications of such conception may arise, the use of surrogacy may be permitted." The PILSARC version did not stipulate this restriction.
* Section 38 (11) of the PILSARC draft - "If the person or persons who have availed of ART do not accept the custody of the child, the surrogate mother shall be entitled to claim all expenses, including maintenance, in relation to and on behalf of such child from them" - has been deleted. However, section 34 of the ART Bill 2008 states that all expenses of the surrogate mother related to the pregnancy achieved in furtherance of ART shall be borne by the couple or individual seeking surrogacy until the child is ready to be delivered, as per medical advice, to the biological parent or parents. Section 38 (11) of the PILSARC draft is far clearer and prevents a repetition of the Baby Manji case, where a Japanese couple divorced and no longer wanted the child carried by an Indian surrogate mother.
* Section 34 (16) of the ART Bill 2008 states that "In the event that the woman intending to be a surrogate mother is married, the consent of her spouse shall be required before she may act as such surrogate." This requirement did not exist in the PILSARC version.
* Extensive Rules have been added to the ART Bill 2008. These need to be reworked on as the sample application forms/consent forms at times contradict the Bill. For instance, Forms D, E, and F require the signature of a 'couple' or a husband and wife for availing of surrogacy, even though the Bill permits single individuals from availing of surrogacy.
* There are other differences in the two Bills; including additions of definitions, changes in the composition of the National Board and an increase in its powers to conduct research on human embryos, expansion on the duties of an ART clinic, regulation of research on embryos, and rights and duties of patients, donors, surrogates and children that have been made in the ART Bill 2008.[1]
The ART Bill 2008 is conservative. While the idea of regulating surrogacy is pragmatic and potentially beneficial to both the surrogate mother and the couple or individual who wish to avail of a surrogate, the ART Bill 2008 imposes restrictions that reinforce heterosexual and patriarchal assumptions.
The ART Bill needs to either delete its definition of 'couple' or expand it significantly to include all those involved in an intimate relationship and impliedly capable of looking after a child. It will then be clear that the Bill does not discriminate between couples in availing of ART facilities. Section 20 (10) of the ART Bill is confusing. A woman may be biologically capable of giving birth but unwilling to do so for any number of reasons. Sarah Jessica Parker has been rumoured to avail of a surrogate mother as she did not want pregnancy to interfere with her acting career. By refusing such women the right to avail of surrogacy, the Bill is playing a discriminatory moral game, which has not been justified by the ICMR as no statement of objects is provided in the Bill. Section 34 (16) of the Bill is based on an assumption the wife cannot make decisions pertaining to her own body without the consent of her husband, and that her husband actually cares about this decision. It neglects the reality that many married couples are separated and that women seek economic independence irrespective of their husband's views.
The ART Bill 2008 has generated criticism from women's organisations and legal groups such as Sama and Lawyers Collective. Greater consultations are necessary with lawyers, feminists, child activists, and medical practitioners before such a Bill can be enacted.
[1] For a full list of the differences between the two Bills, please contact the PILSARC office.
Monday, July 13, 2009
Babri Masjid - Time for Truth and Reconciliation
Babri Masjid - Time for Truth and Reconciliation
Rajeev Dhavan
From a totally different viewpoint, kavivar Bachchan’s words come to mind: Kya bhuloon, kya yaad karoon mai? (What shall I forget, what shall I remember?). Is the destruction of Babri Masjid to be forgotten? As part of the triumph of ‘forgetting’ over truth? After 17 years, is the Liberhan Report irrelevant? Are we no longer interested in the truth?
There are many ways to perceive the fall of Babri Masjid. Counsel for UP simply told the Court “I hang my head in shame”. Introducing the BJP White Paper (February 1993) L.K. Advani unrepentantly praised the “kar sevaks … for erasing a symbol of our subjugation (and) … begin building a symbol of resurgence (to show us) as if in a flash how far we have to travel”. Secularists found the act “barbaric”. 6 December 1992 was a watershed in India’s secular governance. Before there were communal riots, the wanton slaughter of the Sikhs in 1984 and rath yatras. Religion took politics by storm. But 6 December 1992 was the remorseless destruction of a mosque.
There is little point in talking of historical revenge. After 1947, citizens simply cannot destroy a religious building they don’t like. The suit was pending. The Constitution disallows such sacrilege. 6 December 1992 sends a chilling message that lumpen Hindus provoked by the Sangh Parivar can always terrorize any community or their mosques, churches, holy places with total impunity. After Babri Masjid fell, there were ‘no-holds-barred’. No one could touch these marauders. Photographs identifying the miscreants were available, they were not ferreted out. Everyone was interested in getting the big-wigs (Advani, Joshi, Uma Bharati). Even that was botched up. After 1992, all hell broke loose against Christians, Muslims and others. Revd. Staines and his sons were murdered. In Bombay, police joined the Hindu rioters with action and inaction to murder Muslims. Muslim painters like Hussain were harassed. The Godhra riots in 2002 showed how a pro Sangh Parivar state of Gujarat can permit the killing of Muslims with impunity. Art galleries and libraries were ransacked. A terrifying politically inspired and protected Hindu fundamentalism was let loose with satanic results.
Should 6 December 1992 be forgotten? On what terms? Just because the Liberhan Report has been egregiously delayed does not mean it can be ignored. Clearly the BJP and Sangh Parivar (as self evident from repeated statements) applaud 6 December. They now want the Mathura and Benares mosques; or any other. There is some confusion over PN Oak’s thesis that the Taj Mahal was originally a temple! But the Taj Mahal is too secularly ‘sacral’ to invite such sacrilege! Who knows?
Now what is to be done with the Liberhan Report? The legal significance of a commission’s Report is that it is fact-finding. No further prosecutions may flow from it. Somehow in India we take the shameless view that public indictment is not enough. Our leaders only fear the public humiliation of criminal conviction. Advani was cleared by Mr. Jethamalini in the Hawala transactions on a technicality. Sibal got Narsimha Rao on the MP bribery case. Both these lawyers were politically rewarded. No one is interested in the truth. No one will accept the truth and bow out of political life. We live in a political milieu of save-your-hide-at-all-costs.
The Liberhan Report has all the hype of a make believe ‘who-dunn-it-mystery’. What was the role of Joshi, Advani, Vijay Raje Scindhia, Ashok Singhal and others who watched from a terrace? There is a great moral obfuscation. The Advani-Joshi rath yatras were uncompromisingly for kar sevaks on the site of the Masjid. The provocation was clear. After the site fell, L.K. Advani’s preface to the BJP White Paper praised the kar sevaks for their historic destruction. Ruchira Gupta’s evidence to the Liberhan Commission on 14 November 2006 stated when the second dome fell Uma Bharati hugged Joshi with joy. Mrs. Scindhia said, “Ab meri ankhon ko shanti mili hai (my eyes are at peace now). Meanwhile, Ruchira was attacked, under the cry “Mussalman! Mussalman!” Reportedly, Advani was concerned that the kar sevaks might get hurt! When asked by Ruchira (to whom Advani had given his binoculars) why did Advani not stop the mayhem, he was quiet. Ruchira Gupta had accompanied Advani for the last four days. Advani was clear that he was not going to sweep the floor on the site. It was kar seva at all costs. He “swore by Ram that the mandir will be built here.”
We are not here concerned with the criminal conspiracy cases going on in Rae Bareilly and Lucknow. The law will take its course. But Commissions of Inquiry are not concerned with criminal liability but fact-finding. In this case, the purpose of the Commission was also to consider who is morally and politically culpable? Due to Commission reports, TT Krishnamachari and Kairon resigned in the 1950s. The idea behind a Commission, is partly to shame even the shameless and to ensure that what happens shall never happen again. In the case of the Babri Masjid, there was a comprehensive failure – by the BJP and Sangh Parivar, the State of UP which did not use the centre’s battalions and the Centre standing idly by Kalyan Singh was found in contempt of the Supreme Court. Narsimha Rao’s contempt was never decided by the Supreme Court when he was alive. Unfortunately, everyone – no less the media – feels that the only significance of the Liberhan Commission is whether it can be the basis of criminal liability.
There is an unfortunate controversy about whether Liberhan had treated Advani lightly. The former counsel to the Commission Mr. Anupam Gupta has gone public to suggest Liberhan took a ‘soft’ approach in this regard. This is unpleasant, a breach of responsibility and unfair. Liberhan denies all this. His distinguished record as a judge and Chief Justice of Madras and Andhra would not suggest susceptibility to bias. I argued Jaylalitha’s case before him for two years. He was impeccable. Like Justice Wadhwa’s report on the Staines matter he might have become ambivalent. But, we will have to wait.
The Liberhan Report must also depend on how we (the public) receive it and are prepared to receive it. There is a moral plane at which all governance works. Advani supported and provoked the kar seva, watched like Nero from the terrace and wrote an introduction to the BJP supporting this sacrilege as the correct moral and political thing to do. He does not want to own up to criminal conspiracy. But, he does own up to the sacrilege as a good thing – pointing to historical revenge as a reason. Basically, he seems to be saying, “I approve the destruction of the masjid. I saw its fall. I urged the kar seva and mobilized thousands. I watched from the terrace and joined the jubilation. I wanted it done. But I did not do it.” Today the official policy of the Sangh Parivar and BJP is that such destructions are good.
It is this official policy that makes the destruction of the Babri Masjid significant and divides the nation apart; and will continue to do so.
The Liberhan Report and the government’s Action Taken Report will help us review our conscience so that this kind of incident never happens again. But the Report should be released and not kept secret because the government’s ministers are slow at reading; and even slower at making up their mind. Our next step should be truth and reconciliation.
Rajeev Dhavan
From a totally different viewpoint, kavivar Bachchan’s words come to mind: Kya bhuloon, kya yaad karoon mai? (What shall I forget, what shall I remember?). Is the destruction of Babri Masjid to be forgotten? As part of the triumph of ‘forgetting’ over truth? After 17 years, is the Liberhan Report irrelevant? Are we no longer interested in the truth?
There are many ways to perceive the fall of Babri Masjid. Counsel for UP simply told the Court “I hang my head in shame”. Introducing the BJP White Paper (February 1993) L.K. Advani unrepentantly praised the “kar sevaks … for erasing a symbol of our subjugation (and) … begin building a symbol of resurgence (to show us) as if in a flash how far we have to travel”. Secularists found the act “barbaric”. 6 December 1992 was a watershed in India’s secular governance. Before there were communal riots, the wanton slaughter of the Sikhs in 1984 and rath yatras. Religion took politics by storm. But 6 December 1992 was the remorseless destruction of a mosque.
There is little point in talking of historical revenge. After 1947, citizens simply cannot destroy a religious building they don’t like. The suit was pending. The Constitution disallows such sacrilege. 6 December 1992 sends a chilling message that lumpen Hindus provoked by the Sangh Parivar can always terrorize any community or their mosques, churches, holy places with total impunity. After Babri Masjid fell, there were ‘no-holds-barred’. No one could touch these marauders. Photographs identifying the miscreants were available, they were not ferreted out. Everyone was interested in getting the big-wigs (Advani, Joshi, Uma Bharati). Even that was botched up. After 1992, all hell broke loose against Christians, Muslims and others. Revd. Staines and his sons were murdered. In Bombay, police joined the Hindu rioters with action and inaction to murder Muslims. Muslim painters like Hussain were harassed. The Godhra riots in 2002 showed how a pro Sangh Parivar state of Gujarat can permit the killing of Muslims with impunity. Art galleries and libraries were ransacked. A terrifying politically inspired and protected Hindu fundamentalism was let loose with satanic results.
Should 6 December 1992 be forgotten? On what terms? Just because the Liberhan Report has been egregiously delayed does not mean it can be ignored. Clearly the BJP and Sangh Parivar (as self evident from repeated statements) applaud 6 December. They now want the Mathura and Benares mosques; or any other. There is some confusion over PN Oak’s thesis that the Taj Mahal was originally a temple! But the Taj Mahal is too secularly ‘sacral’ to invite such sacrilege! Who knows?
Now what is to be done with the Liberhan Report? The legal significance of a commission’s Report is that it is fact-finding. No further prosecutions may flow from it. Somehow in India we take the shameless view that public indictment is not enough. Our leaders only fear the public humiliation of criminal conviction. Advani was cleared by Mr. Jethamalini in the Hawala transactions on a technicality. Sibal got Narsimha Rao on the MP bribery case. Both these lawyers were politically rewarded. No one is interested in the truth. No one will accept the truth and bow out of political life. We live in a political milieu of save-your-hide-at-all-costs.
The Liberhan Report has all the hype of a make believe ‘who-dunn-it-mystery’. What was the role of Joshi, Advani, Vijay Raje Scindhia, Ashok Singhal and others who watched from a terrace? There is a great moral obfuscation. The Advani-Joshi rath yatras were uncompromisingly for kar sevaks on the site of the Masjid. The provocation was clear. After the site fell, L.K. Advani’s preface to the BJP White Paper praised the kar sevaks for their historic destruction. Ruchira Gupta’s evidence to the Liberhan Commission on 14 November 2006 stated when the second dome fell Uma Bharati hugged Joshi with joy. Mrs. Scindhia said, “Ab meri ankhon ko shanti mili hai (my eyes are at peace now). Meanwhile, Ruchira was attacked, under the cry “Mussalman! Mussalman!” Reportedly, Advani was concerned that the kar sevaks might get hurt! When asked by Ruchira (to whom Advani had given his binoculars) why did Advani not stop the mayhem, he was quiet. Ruchira Gupta had accompanied Advani for the last four days. Advani was clear that he was not going to sweep the floor on the site. It was kar seva at all costs. He “swore by Ram that the mandir will be built here.”
We are not here concerned with the criminal conspiracy cases going on in Rae Bareilly and Lucknow. The law will take its course. But Commissions of Inquiry are not concerned with criminal liability but fact-finding. In this case, the purpose of the Commission was also to consider who is morally and politically culpable? Due to Commission reports, TT Krishnamachari and Kairon resigned in the 1950s. The idea behind a Commission, is partly to shame even the shameless and to ensure that what happens shall never happen again. In the case of the Babri Masjid, there was a comprehensive failure – by the BJP and Sangh Parivar, the State of UP which did not use the centre’s battalions and the Centre standing idly by Kalyan Singh was found in contempt of the Supreme Court. Narsimha Rao’s contempt was never decided by the Supreme Court when he was alive. Unfortunately, everyone – no less the media – feels that the only significance of the Liberhan Commission is whether it can be the basis of criminal liability.
There is an unfortunate controversy about whether Liberhan had treated Advani lightly. The former counsel to the Commission Mr. Anupam Gupta has gone public to suggest Liberhan took a ‘soft’ approach in this regard. This is unpleasant, a breach of responsibility and unfair. Liberhan denies all this. His distinguished record as a judge and Chief Justice of Madras and Andhra would not suggest susceptibility to bias. I argued Jaylalitha’s case before him for two years. He was impeccable. Like Justice Wadhwa’s report on the Staines matter he might have become ambivalent. But, we will have to wait.
The Liberhan Report must also depend on how we (the public) receive it and are prepared to receive it. There is a moral plane at which all governance works. Advani supported and provoked the kar seva, watched like Nero from the terrace and wrote an introduction to the BJP supporting this sacrilege as the correct moral and political thing to do. He does not want to own up to criminal conspiracy. But, he does own up to the sacrilege as a good thing – pointing to historical revenge as a reason. Basically, he seems to be saying, “I approve the destruction of the masjid. I saw its fall. I urged the kar seva and mobilized thousands. I watched from the terrace and joined the jubilation. I wanted it done. But I did not do it.” Today the official policy of the Sangh Parivar and BJP is that such destructions are good.
It is this official policy that makes the destruction of the Babri Masjid significant and divides the nation apart; and will continue to do so.
The Liberhan Report and the government’s Action Taken Report will help us review our conscience so that this kind of incident never happens again. But the Report should be released and not kept secret because the government’s ministers are slow at reading; and even slower at making up their mind. Our next step should be truth and reconciliation.
Friday, July 10, 2009
So near, yet so far
PILSARC Editorial
"Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation’s passion…….. (The Resolution) seeks very feebly to tell the world of what we have thought or dreamt of so long, and what we now hope to achieve in the near future.." - quoting Nehru in their landmark judgment, Justice A.P. Shah and Justice Muralidhar have given the gay community a reason to celebrate.
Notwithstanding the fact that this judgment is only applicable in Delhi, it is certainly one of the most progressive rulings by an Indian court. The judgment declared "that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution". It expands the meaning of sex in the anti-discrimination article 15 of the Constitution, to include sexual orientation.
The battle is won, but not the war. This judgment has been challenged in the Supreme Court and the apex court has issued notices to the relevant parties. The decision of the Supreme Court will be applicable throughout the country. The Supreme Court is the last-leg of the race for the activists fighting for the abolition of this archaic provision, as the political will to repeal is certainly lacking.
The Delhi High Court judgment is a well reasoned one. The arguments advanced challenging this judgment are based on morality, morals of the majority. Our country has crossed the threshold of these arguments - else untouchability would have never been abolished. The hope is that the Supreme Court agrees with the High Court that "the underlying theme of the Indian Constitution, it is that of 'inclusiveness".
"Words are magic things often enough, but even the magic of words sometimes cannot convey the magic of the human spirit and of a Nation’s passion…….. (The Resolution) seeks very feebly to tell the world of what we have thought or dreamt of so long, and what we now hope to achieve in the near future.." - quoting Nehru in their landmark judgment, Justice A.P. Shah and Justice Muralidhar have given the gay community a reason to celebrate.
Notwithstanding the fact that this judgment is only applicable in Delhi, it is certainly one of the most progressive rulings by an Indian court. The judgment declared "that Section 377 IPC, insofar it criminalises consensual sexual acts of adults in private, is violative of Articles 21, 14 and 15 of the Constitution". It expands the meaning of sex in the anti-discrimination article 15 of the Constitution, to include sexual orientation.
The battle is won, but not the war. This judgment has been challenged in the Supreme Court and the apex court has issued notices to the relevant parties. The decision of the Supreme Court will be applicable throughout the country. The Supreme Court is the last-leg of the race for the activists fighting for the abolition of this archaic provision, as the political will to repeal is certainly lacking.
The Delhi High Court judgment is a well reasoned one. The arguments advanced challenging this judgment are based on morality, morals of the majority. Our country has crossed the threshold of these arguments - else untouchability would have never been abolished. The hope is that the Supreme Court agrees with the High Court that "the underlying theme of the Indian Constitution, it is that of 'inclusiveness".
Wednesday, July 8, 2009
Leave Gays Alone
Leave Gays Alone
Rajeev Dhavan
Even if the Union government was dilly-dallying on recognizing the sexual rights of gays, the Delhi High Court has decisively humanized the provision of unnatural offences in Section 377 of the Indian Penal Code on unnatural offences which criminalizes anyone who has by penetration “carnal intercourse against the order of nature with any man, woman or animal.” Punishment is for life or upto ten years and fine. Following the Wolfenden Report (1957), English law from 1967 permitted same-sex carnal intercourse – not without some protest at the time. The world has moved on to decriminalize gay sex to deal with social problems of gay marriage and gay couples adopting children. India has struggled with these provisions. In 1975, our Supreme Court refused to ruin the career of Chitranjan Dass and reduced his sentence to 2 months. Similarly in 1983 where no force was used, the same court reduced the sentence of Fazal Rah Choudhary. But the provision remained.
The wording of Section 377 was aimed at the frustrated Englishman’s boarding school and army habits which extended to bestiality (sex with animals) and is traceable to Macaulay’s prescription of 1837 enacted in India in 1860 around the time that the death penalty for buggery was abolished in England. Indian courts in 1925, 1983 and 1992 included oral sex within the offence. In 1983, the Supreme Court understood unnatural sex to mean “sexual perversity”, but no occasion arose to strike Section 377 down.
In the Delhi High Court, the challenge based on personal liberty, choice and unequal treatment wanted to limit Section 377 to apply only to non-consensual penile non-vaginal sex – treating penile non vaginal sex with minors punishable. There was evidence of how gays in Bangalore in 2004 were tortured. In 2007 a police tortured eunuch committed suicide. The 177 Report of the Law Commission (2001) found the law archaic. However, the 42nd Law Commission thought Section 377 was consistent with Indian morals – a stand supported by the Union’s Health Ministry before the Delhi High Court. By contrast the Ministry of Health dealing with AIDS wanted gays to be more transparent in their sexual activity so that AIDS prevention took place with candour amongst India’s estimated 2.5 million same-sex male couples which would improve the anti AIDS campaign. So, clearly the two wings of India’s government took contradictory stands.
Section 377 has not been struck down. It has been read down so that it is not applicable to consenting adults but applicable to minors. Previous cases will not be reopened. This judgment says that it is for Parliament to bring in a consistent law. Until then the judgment will prevail. Presumably if Parliament resurrects the offence again, at least the Delhi High Court will strike it down.
Strangely, recently, in the US, a gay Iraq veteran was discharged from the national guard for being gay. The Delhi High Court judgment is a brave and wise decision which will prevent the brutal harassment of ‘gays’ by police, employers and others to force them to live under conditions of hostility.
The mores on which section 377 was based are perverse both in their understanding of health morality, genetics and choice. The judgment should have clarified that this allows gay-sexual activity under conditions of privacy. But problems remain. The judgment is confined to Delhi. The Union Government is bound. But no positive order or quashing of offence can be issued to the state police and state courts of other states by the Delhi High Court. A victory for decency, this judgment should be appealed to the Supreme Court so that the issue is settled once and for all. Judges are more human than the gown that cloaks them. Chief Justice A.P. Shah’s judgment (also for Justice Muralidhar) should be upheld. Let the Supreme Court decide this for the whole country. Lord Byron said that nothing of soul is left, when the kissing (or for that matter, sex) had to stop. Between whom? The Delhi High Court’s answer is everybody who agrees and wants it.
Rajeev Dhavan
Even if the Union government was dilly-dallying on recognizing the sexual rights of gays, the Delhi High Court has decisively humanized the provision of unnatural offences in Section 377 of the Indian Penal Code on unnatural offences which criminalizes anyone who has by penetration “carnal intercourse against the order of nature with any man, woman or animal.” Punishment is for life or upto ten years and fine. Following the Wolfenden Report (1957), English law from 1967 permitted same-sex carnal intercourse – not without some protest at the time. The world has moved on to decriminalize gay sex to deal with social problems of gay marriage and gay couples adopting children. India has struggled with these provisions. In 1975, our Supreme Court refused to ruin the career of Chitranjan Dass and reduced his sentence to 2 months. Similarly in 1983 where no force was used, the same court reduced the sentence of Fazal Rah Choudhary. But the provision remained.
The wording of Section 377 was aimed at the frustrated Englishman’s boarding school and army habits which extended to bestiality (sex with animals) and is traceable to Macaulay’s prescription of 1837 enacted in India in 1860 around the time that the death penalty for buggery was abolished in England. Indian courts in 1925, 1983 and 1992 included oral sex within the offence. In 1983, the Supreme Court understood unnatural sex to mean “sexual perversity”, but no occasion arose to strike Section 377 down.
In the Delhi High Court, the challenge based on personal liberty, choice and unequal treatment wanted to limit Section 377 to apply only to non-consensual penile non-vaginal sex – treating penile non vaginal sex with minors punishable. There was evidence of how gays in Bangalore in 2004 were tortured. In 2007 a police tortured eunuch committed suicide. The 177 Report of the Law Commission (2001) found the law archaic. However, the 42nd Law Commission thought Section 377 was consistent with Indian morals – a stand supported by the Union’s Health Ministry before the Delhi High Court. By contrast the Ministry of Health dealing with AIDS wanted gays to be more transparent in their sexual activity so that AIDS prevention took place with candour amongst India’s estimated 2.5 million same-sex male couples which would improve the anti AIDS campaign. So, clearly the two wings of India’s government took contradictory stands.
Section 377 has not been struck down. It has been read down so that it is not applicable to consenting adults but applicable to minors. Previous cases will not be reopened. This judgment says that it is for Parliament to bring in a consistent law. Until then the judgment will prevail. Presumably if Parliament resurrects the offence again, at least the Delhi High Court will strike it down.
Strangely, recently, in the US, a gay Iraq veteran was discharged from the national guard for being gay. The Delhi High Court judgment is a brave and wise decision which will prevent the brutal harassment of ‘gays’ by police, employers and others to force them to live under conditions of hostility.
The mores on which section 377 was based are perverse both in their understanding of health morality, genetics and choice. The judgment should have clarified that this allows gay-sexual activity under conditions of privacy. But problems remain. The judgment is confined to Delhi. The Union Government is bound. But no positive order or quashing of offence can be issued to the state police and state courts of other states by the Delhi High Court. A victory for decency, this judgment should be appealed to the Supreme Court so that the issue is settled once and for all. Judges are more human than the gown that cloaks them. Chief Justice A.P. Shah’s judgment (also for Justice Muralidhar) should be upheld. Let the Supreme Court decide this for the whole country. Lord Byron said that nothing of soul is left, when the kissing (or for that matter, sex) had to stop. Between whom? The Delhi High Court’s answer is everybody who agrees and wants it.
The Right to Disbelieve
The Right to Disbelieve
Rajeev Dhavan
I
India’s present controversies about ‘conversions’ have little meaning outside the politics of Hindutva. An anxious and vindictive Sangh Parivar’s stance - that no conversions of Hindus should take place - is clearly that conversions out of Hinduism are bad but reconversions back into Hinduism are welcome. What is flaunted as a policy against all conversions has been tailored to Hindutva needs. There are therefore, clear contradictions in the stance of the Hindutva. Accordingly conversions must stop; but reconversions are to be encouraged. People should move into Hinduism; but not out of Hinduism.
The Sangh Parivar’s stance on conversion and reconversion is mired in communal fundamentalism. No argument on conversion exists in a vacuum, and the Sangh Parivar’s policies on conversion are also part of a communal policy of persecution of Christians and Muslims. Unlike fundamentalism which consists of a die hard belief in one’s own faith, communalism goes further to pursue a policy of persecution towards other faiths through legal and illegal coercive methods. Fundamentalism and communalism may feed each other. A fundamentalist is entitled to cling to his orthodoxy, but a communalist is as menacing as his persecution. Proselytism is not per se communal. Many faiths claim to seek to convert others just as present day Hindus seek to ‘re-convert’ non-Hindus.
In India’s past, I have no doubt that conversions took place for ‘genuine’ and ‘material’ reasons – and usually a mixture of both. Ambedkar urged dalits to convert to Buddhism. Islam carries the allure of the equality of all in the eyes of Allah even though Hindu social stratification has caught up with many Indian Muslim believers. It seems astonishing that dalits are made to eat excreta in Tamil Nadu and persecuted for leaving the faith by conversion. It is not altogether true that conversions take place amongst the poor. Professor Kalam’s research into conversion in Tamil Nadu in the 1980’s presents a different picture. Way back in the Bengal of the 1840s, there were individual conversions in upper caste household like Krishnamohan Banerji and Madhusudan Datta. Richard Eaton’s article on “Conversion to Christianity among the Nagas: 1876-1979” (1984) Indian Economic and Social History Review 1876 suggests that a lot of Naga conversions took place after 1947 when missionary activity was falling. The Sangh Parivar assumes that all conversions out of Hinduism were coercive, achieved by dubious methods or due to perverse influences and poverty. To this is added a demographic fear that the Muslim population is growing faster than the Hindu population and will subsume the latter even though there are over 800 million Hindus as contrasted with 140 million Muslims. In fact those whose forefathers had changed their faiths generations ago are now considered to be true believers just as any other. Hindutva’s policy on conversion and re-conversion has a fighting edge. It is uncompromisingly tenacious. It is to be understood along with the physical targeting of Muslims and Christians through various embarrassingly wanton acts of cruelty and violence. As far as the legislation on conversion is concerned, it seems facially neutral. But a legislation is what a legislation does and is instrumented to do. The present spurt of anti-conversion legislation has been designed to be susceptible to misuse, harassment and intimidation.
II
The latest controversy over conversions has arisen because in late June 2009, the Centre refused to approve the 2006 Amendments to the old Madhya Pradesh Dharma Swatantra Adhiniyam 1968. The 2006 Amendments brought about a sea change in the old 1968 law. On 25 July 2006, the Madhya Pradesh Amendments were passed under conditions of chaos. Six other Bills were passed on that day. No discussion was permitted. Amidst slogan shouting over another issue, the Amendment was passed by voice vote. At that time, leader of the opposition, Jamuna Devi, felt that the purpose of these Amendments was to whip up communal hatred for political ends: “The RSS, VHP, Bajrang Dal were bent on making conversion an issue to keep the communal cauldron boiling”. In response to her request to return the Bill to the Assembly for further discussion, it was reserved for Presidential assent. The Presidential decision took three years. It should have come earlier – as the Sarkaria Commission recommended in these matters in 1988.
In 2006, on 8 April 2006, Rajasthan passed the Rajasthan Dharma Swatantra Bill 2006. There was uproar. The attempt to send it a Select Committee for careful discussion failed. Passed on the last day of the budget session, it was passed by voice vote – with the Congress and CPI(Marxist) boycotting the procedures. Pratibha Patil then Governor of Rajasthan considered the Bill carefully. I say this because I had sent an Opinion both on the Bill and the President’s powers to reserve the Bill. She asked for queries. Only when they were answered did she refer the Bill to the President. The Bill was like the MP Bill. Chief Minister Vasundra Raje played another constitutional card to have the Bill returned to the Assembly so that the Sangh Parivar dominated Assembly could pass the Bill again to out-trump Governor Patil. Alas, the Governor saw through all this; and, in any-event could not recall her decision to pass the Bill on to the President.
In September 2006, the Gujarat Amendment Bill was also passed by a voice vote. This Bill was not about introducing the surveillance model which had already been passed in 2003. This was a Bill suggesting that the surveillance permission model would not apply to conversion from one denomination to another or conversions between Hindus, Buddhists and Jains because they were considered as part of the same faith! The Gujarat Bill was to consolidate one big happy family of Hindus to include all Hindu sects, Buddhists and Jains. This too was done by a voice vote. All this took place even though leader of the opposition pointed out that in 2004, the Supreme Court had recognized the distinctness of the Jain faith. The discussion was under shotgun conditions. A small poll conducted around the time suggested the Bill was divisive. Experts said it was unconstitutional. Modi claimed that BR Ambedkar inspired him – overlooking that Ambedkar had left the Hindu faith for the Buddhist. Meanwhile a Delhi report suggested that on Ambedkar deeksha, 30 lakh dalits in the country converted to Buddhist. On 31 July 2007, Governor Nawal Kishore Sharma returned the Bill to the legislature on the grounds it was unconstitutional. Modi decided that it might be better for them to slam the minorities by misusing the unamended law 2003 with all the fury of a bigot.
Perhaps the story will be complete if we look at the antics of Ms. Jayalalitha who passed harsh anti-conversion legislation in 2002. But there was a furore. The Governor gave his assent. The furore continued. Ms. Jaylalitha realized the electoral implications of her actions and repealed the bill in 2004.
What do we make of the intervention of the Governor in respect of the Gujarat, Rajasthan and Madhya Pradesh attempts to amend their existing laws? One thing is certain: True democracy had failed in all these cases. Majoritarian Hindutva dominated legislatures had ramrodded the discussion through their respective legislatures. But such a failure is not sufficient reason for the Governor not to give assent to the Bill under Article 200-201 of the Constitution. Indeed, if this was the test few legislations of the Union or State legislatures would ever get passed. But, while considering all this, what is the test that the Governor should use to withhold consent and reserve the Bill for Presidential assent? The narrow interpretation of the Governor’s powers is that s/he is concerned with only maintaining a federal approach to reserve Bills which encroach on the jurisdiction of the Union legislature. The wider approach is that the Governor is the custodian of the Constitution and must consider whether the Bill is Constitutional and whether reservation of the Bill for Presidential assent is in the public interest. To be fair to Governor Patil (as she then was), she perceptively raised precisely these doubts that activist lawyers seeking my advice had to explain and allay. This is a vexed question. The Sarkaria report (1988) approving the Administrative Reforms Committee (ARC) took the view that this power was to be exercised in special circumstances to conclude (at pr. 5.6.13):
(i) Normally, in the discharge of the functions under Article 200, the Governor must abide by the advice of his Council of Ministers. However, in rare and exceptional cases, he may act in the exercise of his discretion, where he is of opinion that the provisions of the Bill are patently unconstitutional, such as, where the subject-matter of the Bill is ex-facie beyond the legislative competence of the State Legislature, or where its provisions manifestly derogate from the scheme and framework of the Constitution so as to endanger the sovereignty, unity and integrity of the nation; or clearly violate Fundamental Rights or transgress other constitutional limitations and provisions.
(ii) In dealing with a State Bill presented to him under Article 200, the Governor should not act contrary to the advice of his Council of Ministers merely because, personally, he does not like the policy embodied in the Bill”
This lee-way given to the Governor cannot be reviewed by a court. This was made clear in Hoechst Pharmaceuticals case (1983) 4 SCC 45 at pr. 86.
“In such a case, it is for the Governor to exercise his discretion and to decide whether he should assent to the Bill or should reserve it for consideration of the President to avoid any future complication. Even if it ultimately turns out that there was no necessity for the Governor to have reserved a Bill for the consideration of the President, still he having done so and obtained the assent of the President, the Act so passed cannot beheld to be unconstitutional on the ground of want of proper assent. The aspect of the matter, as the law now stands, is not open to scrutiny by the courts.”
This pretty much says we must trust the Governor and the Union Government!
The anti-conversion 2006 Bills passed by various state Governors and the role of the Governor raise serious issues of communalism, federalism and democracy. A tentative set of conclusions might be as follows: (i) Democracy can sometimes be at loggerheads with the constitution which abhors divisive communalism. (ii) Majoritarian Hinduism in various states has tried to flex its muscles to browbeat minorities – using anti-conversion legislation to do so. (iii) Normally, the validity of legislation is tested by the Supreme Court and High Courts. (iv) But, in their wisdom, the constitution makers also made the Governors and the President custodians of the public interest. (v) This is a power that can be abused, but this has not happened. Governors (such as Governor Patil) have carefully considered the anti conversion bills. (vi) Had these bills been approved by the Governors, havoc would have been wrecked on minorities and freedom of conscience. (vii) This mechanism of reserving bills for Presidential assent is part of the constitutional system of check and balances to protect its integrity. (viii) Even majoritarian democracies must be careful not to undermine or subvert democratic values.
III
The new legislation is the latest in a series of anti-conversion legislations already existing in Orissa, Madhya Pradesh, Chattisgarh, Arunachal Pradesh and Gujarat. These are copy cat legislations. There have also been several attempts to introduce a central legislation. However, the Parliament correctly refused to pass the Indian Conversion (Regulation and Registration) Bill (1954), and the Backward Communities (Religious Protection) Bill, (1960). With the change of power in 1966, the effort to introduce anti conversion legislation shifted to the states with Orissa being the first state to legislate on conversion through the Freedom of Religion Act, 1967. After that, Madhya Pradesh enacted the Dharma Swatantrya Adhiniyam in 1968. Both of these legislations were challenged in the respective High Courts; of which the Orissa Act was struck down in the Yulitha Hyde case (1973) and the Madhya Pradesh Act was upheld in the Rev. Stainislaus case (1975). Issues pertaining to the validity of both the Acts were addressed by the Supreme Court in the Stainislaus case (1977), which upheld the validity of both the Acts. Inspite of the Supreme Court’s approval of anti-conversion legislation in what is generally regarded as an unsatisfactory decision, no similar legislations were introduced other than the Arunachal Pradesh Freedom of Religion Act, 1978.
Since the late 1990’s, the debate over the regulation of conversions has again emerged as a mainstream issue, especially because of propaganda by the right wing parties. New anti-conversion laws have been introduced and existing laws have been strengthened in the states of Gujarat (2003), Tamil Nadu (2002) and Chattisgarh (2005). These various legislations show a certain generality in that they were all introduced by right wing governments and are focused on preventing conversions from Hinduism to other religions. Also, while all the legislations follow the general framework of the first legislation i.e., the Orissa Freedom of Religion Act, 1967, the latter legislations have become progressively more harsh and restrictive.
The Orissa legislation criminalizes conversion i.e., the renouncing of one’s faith and the adoption of another faith made through force, misrepresentation or inducement. The provisions are wide and include direct or indirect attempts to convert and the abetment of conversion as a criminal offence. The penalty is without prejudice to civil liability and is for a period of one year and/or fine of up to five thousand rupees. However, if the conversion was of a minor or a woman or a person belonging to the Scheduled Castes or Scheduled Tribes, the penalty was doubled. There is some control over the proceedings under the legislation as there had to be prior sanction by the District Magistrate for any offence under the Act. Thus, what was created was not a civil remedy to have a conversion set aside at the instance of the convert but a statute to potentially criminalize all conversions and to subject then to surveillance through police and magisterial intervention.
This framework has been adopted by all later anti-conversion legislations, but each state has made adjustments to address their specific needs. In the Madhya Pradesh Legislation of 2002, all conversions irrespective of the circumstances had to be reported to the District Magistrate and failure to do so would result in the same penalty as the actual commission of the offence. Thus, the focus shifted from checking unlawful conversions to policing all conversions. The three earlier Acts were almost similar in intent and effect.
The recent legislations have, through incremental changes, begun changing the nature of the offence. The Gujarat legislation of 2002 increased the penalty to three years and fifty thousand rupees, with an increased penalty of four years and one lakh rupees in the case of a Scheduled Caste, Scheduled Tribe, minor or woman. More importantly, conversions could now take place virtually only with the prior permission of the District Magistrate. Conversion from being the right of an individual was transformed into a privilege which could be exercised only by the authorities. Inspite of the increased control by authorities over conversions themselves, the supervision and control of the district administration over prosecutions by the Police under the legislation was removed. Later in 2007 Modi passed a bill of 2006 to treat Hinduism as a monolithic religion to include Buddism and Jainism. Under super-national pressure, Modi’s government withdrew the Bill.
The Rajasthan Bill of 2006, was in this line of anti-conversion legislations. It continued the trend of increasing the punishment for the offence involved and it provides the maximum penalty so far, with imprisonment of between two to five years and fine of up to fifty thousand rupees. Also, this legislation specifies that the liability under the bill is in addition to other civil and criminal liability, thus creating the possibility of multiple prosecutions. However, in addition to these changes, the legislation also has certain additions and omissions which make it substantially different from previous legislations. The most striking change which clearly demonstrated the partisan nature of the Bill is in the understanding of conversion; it is understood, like previous legislations as leaving one’s religion, but one’s religion is now not merely the individual’s personal faith, but the faith of the fore-fathers. In the context of the aggressive campaign of mass re-conversion programmes like ghar-vapasisi (return home or to the flock) which has been adopted by the right wing parties, this is clearly an addition with the specific purpose of creating loopholes by which the legislation will not apply to re-conversion programmes. The present legislation also differs in the manner in which the offence of conversion is criminalized. For the first time, the offence has been made non-bailable and cognizable, which is a deviation from all the previous legislations. The requirement of sanction of the civil-administration for investigation of the offence, which was present in all previous legislations other than the Gujarat legislation, has been removed. These changes which are a marked deviation from the earlier Bills demonstrate that while the Rajasthan Bill of 2006 is a part of a series of earlier legislations, it belongs to a new genus which treats conversion in a far more harsh and restrictive manner. Later the new Rajasthan Bill of 2008 re-enacted the old Bill and further added provisions which tried to decriminalise reconversion into Hinduism and proposed to take them out from the surveillance of the Act.
The Madhya Pradesh Amendment of 2006 legislation continues the new surveillance model with stringent oversight of the Act of 2003. The Rajasthan Bill was similar. The Gujarat Amendment tried to consolidate Hinduism to include all sects of Buddhist and Jains within its fold and effectively target Muslims and Christians. The Governor stopped it by returning the Gujarat Bill to the legislature, and reserved the Rajasthan and Madhya Pradesh Bill for Presidential assent. The Union has denied assent to the Madhya Pradesh Bill. The Rajasthan Bill is destined to suffer the same fate.
IV
The debate on conversions has to be understood in the context of the constitutional provisions as interpreted in the Supreme Court’s decision in the Stanislaus case (1977). But before, we enter the fray on the Court’s interpretation of the freedom of religion clause it might be useful to look at some of the discussions in the Constituent Assembly which framed India’s Constitution. The original Munshi and Ambedkar drafts considered in 1947 protected freedom of conscience and the right to profess and practice religion on 26 March 1947. It was the Munshi draft that was considered by the Fundamental Rights Committee to be placed in its report of 3 April 1947 – along with other provisions introducing the police power (subjecting these freedoms to public order, health and morality). From our point of view, the draft observed that while the right to “profess and practices” was protected, nothing was said about the right to propagate one’s faith. The real concern of A.K. Ayyar and B.N. Rau was that freedom of religion should not impede social reform. On this Raj Kumari Amrit Kaur, Hansa Mehta and KT Shah were clearer and more forceful. On 22 April 1947, there was some discussion on including the propagation of religion – with the major concern being social reform. But on a vote, the right to propagate was included with some markers pointing out that this right was already included in the guaranteed free speech provisions. When the freedom of religion clauses were debated on 1 May 1947, questions over religious instruction in school dominated. These were resolved by reference to a special committee which sought to present religious education in state schools. But the Draft Constitution of February 1948 clearly protected the “right to freely to profess, practice and propagate religion” (emphasis added). When the draft constitution was circulated, amongst other proposals, not too spirited response was made in some quarters to remove the right to propagate, which did not find acceptance. When the draft of the right to religion was debated on 3-7 December 1948, there was acute controversy over including the right to propagate in the freedom of religion clauses. Muslim member, Tajamaul Hussain, thought the right to propagate ought not be included because religion was a private affair. For different reasons, this approach was reinforced by Lokanath Misra who saw in the right to propagate all the evils that led to Partition. Eventually, the Assembly retained the right to propagate after taking into account that the right was not absolute but subject to limitations. The State would regulate conversions due to undue influence, money or presume, and it was already a part of the freedom of speech. Curiously, K.M. Munshi seem to take the simplistic view that in a secular state there is no premium attached to a religion increasing its numbers:
“In the present set up that we are now creating under this Constitution, there is a secular State. There is no particular advantage to a member of one community over another; nor is there any political advantage by increasing one’s fold. In those circumstances the word ‘propagate’ cannot possibly have dangerous implications, which some of the Members think that it has.”
He could not have been more wrong. Propagation and conversion were issues – not necessarily as part of a numbers game, but certainly in the corridors of Hindutva who felt that such propagation was an insult and injury to the Hindu faith.
We have already seen that an Indian Conversion (Regulation and Registration) Bill 1954 or the Backward Communities (Religious Protection) Bill 1960. As the Congress lost power, legislation was enacted in Orissa in 1977 (Freedom of Religion Act) and Madhya Pradesh in 1968 (Dharma Swatantra Adhiniyam 1968). The Orissa legislation was struck down (Yuhtha Hyde AIR 1973 Orissa 116) while the Madhya Pradesh Legislation was upheld (Rev. Stanislaus v. State of Madhya Pradesh AIR 1977 MP 163). Both these cases went up in appeal to the Supreme Court in Stanislaus v. State of Madhya Pradesh (1977) 1 SCC 677.
The Supreme Court’s judgment in Stanislaus was delivered by a five judge bench with the Chief Justice Ray writing the judgment for the Court delivered during the Emergency 17 January 1977. The Court concentrated on only two issues (a) legislative competence and (b) the meaning of the word “propagate” in the freedom of religion clause. For our purposes, we can ignore the legislative competence issue that the legislation is connected with public order (Judgment pr. 22-25) (although it is subject to doubt as to whether a nexus with public order lies). On the question of “propagation”, the entire observation of the Court needs to be quoted. The court observed :
“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 tenets. 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… 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.”
This is all that was said even though this premise is flawed. But, it is a Constitution Bench judgment and we have to live with it. But the fact remains that the Court did not examine the provisions of the statute and test it against Article 21 and the new jurisprudence of due process. Unfortunately in Satya Narayan’s case (2003) 7 SCC 439 (Khare CJ and Sinha J) no notice was issued but the Court (pr.2) without hearing the other side (a judicial indiscipline by the court!) followed Stanislaus, and refused to examine the implementation under the rule because this point was not raised below. I was in Court when the case was dismissed, this judgment – order was clearly an afterthought delivered later! This is not the way.
But let us go back to the decision in Stanislaus which is imperfect and incomplete. The fact remains that apart from saying propagation does not include conversion, the Supreme Court has not examined any legislation or rules for due process and arbitrariness which is now essential to constitutional practice as well settled by a series of post-Emergency declarations. Equally, propagation is also a part of free speech (which was affirmed by the Constituent Assembly again and again) and is subject to reasonable restrictions. This has never happened at the instance of any court, including the Supreme Court. That is why it is necessary to examine the legislatures themselves. The first generation legislation (consisting of the Orissa Freedom of Religion Act 1967) was relatively simple. It simply prohibited conversion by ‘force, ‘fraud’ and ‘inducement’ and of a minor under 18 year (Section 3) and punishable by imprisonment and fine upto Rs.5000; and in the case of SC and ST mandatory to 2 years or Rs.10,000 (Section 4). The offences were cognizable inviting police arrest (Section 5) and to be prosecuted with the sanction of the District Magistrate (Section 6). The due process implications were considerable but not examined. The second generation legislation was the Madhya Pradesh Swantantra Adhiniyam 1968 which added the term “allurement (including gifts) but also added a provision of prior intimation to the District Magistrate – failure to do so being an offence punishable with imprisonment upto 1 year and fine upto Rs.1000. This was the beginning of the surveillance system. This approach was followed by the Arunachal Freedom of Religion Act 1978, The Gujarat Freedom of Religion Act 2003, the Tamil Nadu Prohibition of Forcible Conversion Act 2002, and the Himachal Pradesh Freedom of Religion Act 2006.
As time went on, this mild model gave way a fuller surveillance-oversight model. The Himachal Act of 1978 was different from the Orissa (1967), Madhya Pradesh (1968) Arunachal (1978) and Tamil Nadu (2002) statutes in that it permitted the District Magistrate to enquire into the matter through himself or any agency (Section 4). In the Rules of 7 July 2007 under the Himachal Act, the District Magistrate was given the power to issue notice and constitute inquiries on “the basis of any complaint on information” if he is of the opinion for reasons to be recorded a conversion was without notice or “force as inducement have been used or is likely to be used in any conversion”. Any interloper (of the Sangh Parivar) creates grounds for an inquiry and a police case (S. 4) to induce harassment! It is this surveillance approach that has become a defacto practice elsewhere. But the emphasis returned to police investigations. Since the offences were cognizable and abetment was an offence, the police court run riots into investigating whatever they wanted. Effectively what was created was a conversion police.
Fourthly, the Gujarat Bill of 2006 and the Rajasthan Bill of 2008 flaunts a policy of an imperial Hinduism by enunciating a protective approach to reconversions to Hindus on the assumption that all in India were Hindus, including sects which broke away from the Hindu fold as well as Buddhists and Jains.
I believe that the effect of these legislatures and the procedures they inaugurate have never been tested in a court of law. It is in the process that lies the punishment.
V
There is a huge literature which suggests that we must examine legislation in terms of their purpose, intent and effect. This is not just for purposes of judicial interpretation but also to consider whom the legislation empowers and for what purpose. Equally, the use to which a legislation is put may vary and change.
Clearly the devastating event was the destruction of the Babri Masjid on 6 December 1992. This sent out a signal that as far as the persecution of minorities was concerned there were no ‘holds-barred”. A random look at the events around 2002 when the Tamil Nadu and Gujarat legislature surfaced shows that stopping conversions and effecating reconversion was the policy of the moment. In Orissa, 72 tribal Christians were brought back into the fold (Hindustan Times 11 June 2000). In Bengal, the Jamiat-e-Ulema sought the government’s help against forced recoversions (Indian Express 8 July 2000). Two weeks later, converts in the Korma Village in Orissa were threatened with persecution. A couple in Delhi were hounded when a dalit married a Jat (Hindustan Times 25 September 2001). By 2001, the All India Confederation of SC/ST organizations declared that 10 lakh persons would convert to Buddhism (Hindustan Times 7 October 2001) and thousands did (Hindu 7 November 2001). The dalits complained that the government tried to stop conversions (Hindustan Times 6 November 2001). In Meerut, in December 2001, 300 dalit villagers converted to Buddhism (Hindustan Times 28 December 2001). Accusations ran wild. The Chief Superintendent of Pondichery Central Prison was fairly accused of forced conversions (The Week April 2001). Why should dalits not convert if a dalit near Simla was rebuked for entering a temple (Hindu 20 May 2002). No action was taken on dalit persecution. That is why there were protests against Jayalalitha’s conversion statute in Tamil Nadu (Hindu 20 Oct. 2002, Statesman 9 Oct. 2002, Hindu October 2002). In New Delhi, the Shiv Sena tried to convert Muslim children to Hinduism (Hindustan Times 20 June 2002). But when the 40 Hindus happily converted to Islam, the VHP claimed the conversion was forced (Hindustan Times 24 August 2002). The VHP wanted to make re-conversions in Wayanad in Kerala (Hindustan Times 23 September 2002). Following the Ordinance of 2002, Thomas Stephen reported religious fanatics were emboldened to attack a service in Keenathur, Thiruvannamalai (Report 24-29 Sept. 2002). The VHP and RSS wanted such Anti Conversion Laws every where (Hindu 8 Oct. 2002). Just as with the Dangs in Rajasthan in 2000, two years later Christian bashing started again (Statesman 10 Oct. 2002). The oppression of dalits continued. In Jhajjar, Haryana 5 dalits were killed by a Hindu mob for skinning a dead cow (Hindustan Times 19 Oct. 2002). In protest, a dozen dalits embrace Buddhism (Hindu 22 Oct. 2002). What was triggered off was the Jhajjar effect by which 100s of dalits converted to Bhuddhism on Dewali (Indian Express 6 November 2002; Outlook 11 November 2002). Curiously even Sri Lanka imposed a ban on conversions (Hindustan Times 19 November 2002).
It was due to threats that a mass conversion in Chennai by dalits was stopped (Hindustan Times 7 Dec. 2002). In protest, the Dalit Panthers changed Hindu names to Tamil (Indian Express 7 Oct. 2002). On Christmas day, 123 dalits converted to Christianity (Hindu 26 December 2002). That the oppression of Christians continued was clear from an attack on a Catholic Church at Nadia near the Bangladesh border (Statesman 29 December 2002). The BJP held a conversion camp for Christians in Khallari, near Raipur (Indian Express 30 Dec. 2002; Hindu 30 Dec. 2002). Dalits in India were converting out of Hinduism (Outlook 18 Nov. 2002). It is in this context that the Gujarat Conversion Bill 2003 surfaced. The Christians’ All India Council protested against a survey of Christians in Gujarat (Hindu 12 March 2003). The Christians were bereft – warning against illegal re-conversions in Gujarat (Hindu 2 June 2003). The answer to the legislation was 1 lakh dalits in Gujarat proposed to convert to Buddhism (Indian Express 4 June 2003). Mass conversions are triggered off by attacks on dalits (Times of India 10 Sept. 2003). Meanwhile the BJP planned a conversion law for Delhi (Hindu 22 November 2003). Dalits were banned entry into the Nathdwara temple (Times of India 14 January 2004).
The Jamiat questioned the claim of the VHP about 586 Muslim families in Rajasthan being converted (Hindu 19 Feb. 2004). Ahead of the Kumbh Mela, an anti conversion stir started to highlight cases on allurement (Indian Express 3 Feb. 2004) Kamala Suraiya became a Muslim who was harassed by those in her new faith but said “I’m pleased with Islam the for I’ve changed” (Hindustan Times 17 Feb. 2006). Senseless attacks on Christian and dalits took place in these troubled years – and continued to do so.
I have deliberately related this handful of events to demonstrate the validity of the Jhajjar effect; to show that dalits and others leave the Hindu fold because they find it persecutory and wanting. The legislations of 2002-3 were passed by Hindutva politicians as desperate measures in retreat. Unable to manage its own practices, Hindutva attacked others. Virtually all conversions are not conversions of convenience like those who enter into the Muslim community to facilitate marriage and which were outlawed by a Deoband fatwa (Mail Today 4 July 2008). The other faiths do not want forced conversions. They gain nothing. The pressure on dalits to convert arises because Hinduism – no less in belief and its practice has no place for them, even though there is pressure on them to reconvert as in the case of 1000 Christians of Tamil Nadu (Times of India 13 April 2008). The VHP also concentrates on tribal re-conversions (Times of India 1 April 2008). But the North East is Christian. That is why the new Rajasthan Bill of 2008 makes room for reconversion without criminalization or surveillance while confirming its policy against all other kinds of conversion.
VI
The truth of the matter is that conversions take place for genuine reasons – albeit a reaction to persecution. In turn the anti-conversion legislation is not passed so that conversions should be fair but to persecute those who wish to convert though policing and surveillance. Criminalizing conversion is not the answer. An unhappy convert can always convert and declare his reasons for doing so. But these are not matters for the police and District Magistrate.
In my view (a) Anti conversion policies are designed to promote and provoke hate. (b) These legislations arm the police and magistracy to harass minorities and dalits. (c) The Supreme Court has never examined the processed effect of conversion legislation. (d) Criminalizing conversion is wrong. (e) In the process lies the punishment. (f) These legislations are linked to political Hindutva and subject to abuse. (g) Politically these legislations should be abolished, abolished, abolished.
Rajeev Dhavan
I
India’s present controversies about ‘conversions’ have little meaning outside the politics of Hindutva. An anxious and vindictive Sangh Parivar’s stance - that no conversions of Hindus should take place - is clearly that conversions out of Hinduism are bad but reconversions back into Hinduism are welcome. What is flaunted as a policy against all conversions has been tailored to Hindutva needs. There are therefore, clear contradictions in the stance of the Hindutva. Accordingly conversions must stop; but reconversions are to be encouraged. People should move into Hinduism; but not out of Hinduism.
The Sangh Parivar’s stance on conversion and reconversion is mired in communal fundamentalism. No argument on conversion exists in a vacuum, and the Sangh Parivar’s policies on conversion are also part of a communal policy of persecution of Christians and Muslims. Unlike fundamentalism which consists of a die hard belief in one’s own faith, communalism goes further to pursue a policy of persecution towards other faiths through legal and illegal coercive methods. Fundamentalism and communalism may feed each other. A fundamentalist is entitled to cling to his orthodoxy, but a communalist is as menacing as his persecution. Proselytism is not per se communal. Many faiths claim to seek to convert others just as present day Hindus seek to ‘re-convert’ non-Hindus.
In India’s past, I have no doubt that conversions took place for ‘genuine’ and ‘material’ reasons – and usually a mixture of both. Ambedkar urged dalits to convert to Buddhism. Islam carries the allure of the equality of all in the eyes of Allah even though Hindu social stratification has caught up with many Indian Muslim believers. It seems astonishing that dalits are made to eat excreta in Tamil Nadu and persecuted for leaving the faith by conversion. It is not altogether true that conversions take place amongst the poor. Professor Kalam’s research into conversion in Tamil Nadu in the 1980’s presents a different picture. Way back in the Bengal of the 1840s, there were individual conversions in upper caste household like Krishnamohan Banerji and Madhusudan Datta. Richard Eaton’s article on “Conversion to Christianity among the Nagas: 1876-1979” (1984) Indian Economic and Social History Review 1876 suggests that a lot of Naga conversions took place after 1947 when missionary activity was falling. The Sangh Parivar assumes that all conversions out of Hinduism were coercive, achieved by dubious methods or due to perverse influences and poverty. To this is added a demographic fear that the Muslim population is growing faster than the Hindu population and will subsume the latter even though there are over 800 million Hindus as contrasted with 140 million Muslims. In fact those whose forefathers had changed their faiths generations ago are now considered to be true believers just as any other. Hindutva’s policy on conversion and re-conversion has a fighting edge. It is uncompromisingly tenacious. It is to be understood along with the physical targeting of Muslims and Christians through various embarrassingly wanton acts of cruelty and violence. As far as the legislation on conversion is concerned, it seems facially neutral. But a legislation is what a legislation does and is instrumented to do. The present spurt of anti-conversion legislation has been designed to be susceptible to misuse, harassment and intimidation.
II
The latest controversy over conversions has arisen because in late June 2009, the Centre refused to approve the 2006 Amendments to the old Madhya Pradesh Dharma Swatantra Adhiniyam 1968. The 2006 Amendments brought about a sea change in the old 1968 law. On 25 July 2006, the Madhya Pradesh Amendments were passed under conditions of chaos. Six other Bills were passed on that day. No discussion was permitted. Amidst slogan shouting over another issue, the Amendment was passed by voice vote. At that time, leader of the opposition, Jamuna Devi, felt that the purpose of these Amendments was to whip up communal hatred for political ends: “The RSS, VHP, Bajrang Dal were bent on making conversion an issue to keep the communal cauldron boiling”. In response to her request to return the Bill to the Assembly for further discussion, it was reserved for Presidential assent. The Presidential decision took three years. It should have come earlier – as the Sarkaria Commission recommended in these matters in 1988.
In 2006, on 8 April 2006, Rajasthan passed the Rajasthan Dharma Swatantra Bill 2006. There was uproar. The attempt to send it a Select Committee for careful discussion failed. Passed on the last day of the budget session, it was passed by voice vote – with the Congress and CPI(Marxist) boycotting the procedures. Pratibha Patil then Governor of Rajasthan considered the Bill carefully. I say this because I had sent an Opinion both on the Bill and the President’s powers to reserve the Bill. She asked for queries. Only when they were answered did she refer the Bill to the President. The Bill was like the MP Bill. Chief Minister Vasundra Raje played another constitutional card to have the Bill returned to the Assembly so that the Sangh Parivar dominated Assembly could pass the Bill again to out-trump Governor Patil. Alas, the Governor saw through all this; and, in any-event could not recall her decision to pass the Bill on to the President.
In September 2006, the Gujarat Amendment Bill was also passed by a voice vote. This Bill was not about introducing the surveillance model which had already been passed in 2003. This was a Bill suggesting that the surveillance permission model would not apply to conversion from one denomination to another or conversions between Hindus, Buddhists and Jains because they were considered as part of the same faith! The Gujarat Bill was to consolidate one big happy family of Hindus to include all Hindu sects, Buddhists and Jains. This too was done by a voice vote. All this took place even though leader of the opposition pointed out that in 2004, the Supreme Court had recognized the distinctness of the Jain faith. The discussion was under shotgun conditions. A small poll conducted around the time suggested the Bill was divisive. Experts said it was unconstitutional. Modi claimed that BR Ambedkar inspired him – overlooking that Ambedkar had left the Hindu faith for the Buddhist. Meanwhile a Delhi report suggested that on Ambedkar deeksha, 30 lakh dalits in the country converted to Buddhist. On 31 July 2007, Governor Nawal Kishore Sharma returned the Bill to the legislature on the grounds it was unconstitutional. Modi decided that it might be better for them to slam the minorities by misusing the unamended law 2003 with all the fury of a bigot.
Perhaps the story will be complete if we look at the antics of Ms. Jayalalitha who passed harsh anti-conversion legislation in 2002. But there was a furore. The Governor gave his assent. The furore continued. Ms. Jaylalitha realized the electoral implications of her actions and repealed the bill in 2004.
What do we make of the intervention of the Governor in respect of the Gujarat, Rajasthan and Madhya Pradesh attempts to amend their existing laws? One thing is certain: True democracy had failed in all these cases. Majoritarian Hindutva dominated legislatures had ramrodded the discussion through their respective legislatures. But such a failure is not sufficient reason for the Governor not to give assent to the Bill under Article 200-201 of the Constitution. Indeed, if this was the test few legislations of the Union or State legislatures would ever get passed. But, while considering all this, what is the test that the Governor should use to withhold consent and reserve the Bill for Presidential assent? The narrow interpretation of the Governor’s powers is that s/he is concerned with only maintaining a federal approach to reserve Bills which encroach on the jurisdiction of the Union legislature. The wider approach is that the Governor is the custodian of the Constitution and must consider whether the Bill is Constitutional and whether reservation of the Bill for Presidential assent is in the public interest. To be fair to Governor Patil (as she then was), she perceptively raised precisely these doubts that activist lawyers seeking my advice had to explain and allay. This is a vexed question. The Sarkaria report (1988) approving the Administrative Reforms Committee (ARC) took the view that this power was to be exercised in special circumstances to conclude (at pr. 5.6.13):
(i) Normally, in the discharge of the functions under Article 200, the Governor must abide by the advice of his Council of Ministers. However, in rare and exceptional cases, he may act in the exercise of his discretion, where he is of opinion that the provisions of the Bill are patently unconstitutional, such as, where the subject-matter of the Bill is ex-facie beyond the legislative competence of the State Legislature, or where its provisions manifestly derogate from the scheme and framework of the Constitution so as to endanger the sovereignty, unity and integrity of the nation; or clearly violate Fundamental Rights or transgress other constitutional limitations and provisions.
(ii) In dealing with a State Bill presented to him under Article 200, the Governor should not act contrary to the advice of his Council of Ministers merely because, personally, he does not like the policy embodied in the Bill”
This lee-way given to the Governor cannot be reviewed by a court. This was made clear in Hoechst Pharmaceuticals case (1983) 4 SCC 45 at pr. 86.
“In such a case, it is for the Governor to exercise his discretion and to decide whether he should assent to the Bill or should reserve it for consideration of the President to avoid any future complication. Even if it ultimately turns out that there was no necessity for the Governor to have reserved a Bill for the consideration of the President, still he having done so and obtained the assent of the President, the Act so passed cannot beheld to be unconstitutional on the ground of want of proper assent. The aspect of the matter, as the law now stands, is not open to scrutiny by the courts.”
This pretty much says we must trust the Governor and the Union Government!
The anti-conversion 2006 Bills passed by various state Governors and the role of the Governor raise serious issues of communalism, federalism and democracy. A tentative set of conclusions might be as follows: (i) Democracy can sometimes be at loggerheads with the constitution which abhors divisive communalism. (ii) Majoritarian Hinduism in various states has tried to flex its muscles to browbeat minorities – using anti-conversion legislation to do so. (iii) Normally, the validity of legislation is tested by the Supreme Court and High Courts. (iv) But, in their wisdom, the constitution makers also made the Governors and the President custodians of the public interest. (v) This is a power that can be abused, but this has not happened. Governors (such as Governor Patil) have carefully considered the anti conversion bills. (vi) Had these bills been approved by the Governors, havoc would have been wrecked on minorities and freedom of conscience. (vii) This mechanism of reserving bills for Presidential assent is part of the constitutional system of check and balances to protect its integrity. (viii) Even majoritarian democracies must be careful not to undermine or subvert democratic values.
III
The new legislation is the latest in a series of anti-conversion legislations already existing in Orissa, Madhya Pradesh, Chattisgarh, Arunachal Pradesh and Gujarat. These are copy cat legislations. There have also been several attempts to introduce a central legislation. However, the Parliament correctly refused to pass the Indian Conversion (Regulation and Registration) Bill (1954), and the Backward Communities (Religious Protection) Bill, (1960). With the change of power in 1966, the effort to introduce anti conversion legislation shifted to the states with Orissa being the first state to legislate on conversion through the Freedom of Religion Act, 1967. After that, Madhya Pradesh enacted the Dharma Swatantrya Adhiniyam in 1968. Both of these legislations were challenged in the respective High Courts; of which the Orissa Act was struck down in the Yulitha Hyde case (1973) and the Madhya Pradesh Act was upheld in the Rev. Stainislaus case (1975). Issues pertaining to the validity of both the Acts were addressed by the Supreme Court in the Stainislaus case (1977), which upheld the validity of both the Acts. Inspite of the Supreme Court’s approval of anti-conversion legislation in what is generally regarded as an unsatisfactory decision, no similar legislations were introduced other than the Arunachal Pradesh Freedom of Religion Act, 1978.
Since the late 1990’s, the debate over the regulation of conversions has again emerged as a mainstream issue, especially because of propaganda by the right wing parties. New anti-conversion laws have been introduced and existing laws have been strengthened in the states of Gujarat (2003), Tamil Nadu (2002) and Chattisgarh (2005). These various legislations show a certain generality in that they were all introduced by right wing governments and are focused on preventing conversions from Hinduism to other religions. Also, while all the legislations follow the general framework of the first legislation i.e., the Orissa Freedom of Religion Act, 1967, the latter legislations have become progressively more harsh and restrictive.
The Orissa legislation criminalizes conversion i.e., the renouncing of one’s faith and the adoption of another faith made through force, misrepresentation or inducement. The provisions are wide and include direct or indirect attempts to convert and the abetment of conversion as a criminal offence. The penalty is without prejudice to civil liability and is for a period of one year and/or fine of up to five thousand rupees. However, if the conversion was of a minor or a woman or a person belonging to the Scheduled Castes or Scheduled Tribes, the penalty was doubled. There is some control over the proceedings under the legislation as there had to be prior sanction by the District Magistrate for any offence under the Act. Thus, what was created was not a civil remedy to have a conversion set aside at the instance of the convert but a statute to potentially criminalize all conversions and to subject then to surveillance through police and magisterial intervention.
This framework has been adopted by all later anti-conversion legislations, but each state has made adjustments to address their specific needs. In the Madhya Pradesh Legislation of 2002, all conversions irrespective of the circumstances had to be reported to the District Magistrate and failure to do so would result in the same penalty as the actual commission of the offence. Thus, the focus shifted from checking unlawful conversions to policing all conversions. The three earlier Acts were almost similar in intent and effect.
The recent legislations have, through incremental changes, begun changing the nature of the offence. The Gujarat legislation of 2002 increased the penalty to three years and fifty thousand rupees, with an increased penalty of four years and one lakh rupees in the case of a Scheduled Caste, Scheduled Tribe, minor or woman. More importantly, conversions could now take place virtually only with the prior permission of the District Magistrate. Conversion from being the right of an individual was transformed into a privilege which could be exercised only by the authorities. Inspite of the increased control by authorities over conversions themselves, the supervision and control of the district administration over prosecutions by the Police under the legislation was removed. Later in 2007 Modi passed a bill of 2006 to treat Hinduism as a monolithic religion to include Buddism and Jainism. Under super-national pressure, Modi’s government withdrew the Bill.
The Rajasthan Bill of 2006, was in this line of anti-conversion legislations. It continued the trend of increasing the punishment for the offence involved and it provides the maximum penalty so far, with imprisonment of between two to five years and fine of up to fifty thousand rupees. Also, this legislation specifies that the liability under the bill is in addition to other civil and criminal liability, thus creating the possibility of multiple prosecutions. However, in addition to these changes, the legislation also has certain additions and omissions which make it substantially different from previous legislations. The most striking change which clearly demonstrated the partisan nature of the Bill is in the understanding of conversion; it is understood, like previous legislations as leaving one’s religion, but one’s religion is now not merely the individual’s personal faith, but the faith of the fore-fathers. In the context of the aggressive campaign of mass re-conversion programmes like ghar-vapasisi (return home or to the flock) which has been adopted by the right wing parties, this is clearly an addition with the specific purpose of creating loopholes by which the legislation will not apply to re-conversion programmes. The present legislation also differs in the manner in which the offence of conversion is criminalized. For the first time, the offence has been made non-bailable and cognizable, which is a deviation from all the previous legislations. The requirement of sanction of the civil-administration for investigation of the offence, which was present in all previous legislations other than the Gujarat legislation, has been removed. These changes which are a marked deviation from the earlier Bills demonstrate that while the Rajasthan Bill of 2006 is a part of a series of earlier legislations, it belongs to a new genus which treats conversion in a far more harsh and restrictive manner. Later the new Rajasthan Bill of 2008 re-enacted the old Bill and further added provisions which tried to decriminalise reconversion into Hinduism and proposed to take them out from the surveillance of the Act.
The Madhya Pradesh Amendment of 2006 legislation continues the new surveillance model with stringent oversight of the Act of 2003. The Rajasthan Bill was similar. The Gujarat Amendment tried to consolidate Hinduism to include all sects of Buddhist and Jains within its fold and effectively target Muslims and Christians. The Governor stopped it by returning the Gujarat Bill to the legislature, and reserved the Rajasthan and Madhya Pradesh Bill for Presidential assent. The Union has denied assent to the Madhya Pradesh Bill. The Rajasthan Bill is destined to suffer the same fate.
IV
The debate on conversions has to be understood in the context of the constitutional provisions as interpreted in the Supreme Court’s decision in the Stanislaus case (1977). But before, we enter the fray on the Court’s interpretation of the freedom of religion clause it might be useful to look at some of the discussions in the Constituent Assembly which framed India’s Constitution. The original Munshi and Ambedkar drafts considered in 1947 protected freedom of conscience and the right to profess and practice religion on 26 March 1947. It was the Munshi draft that was considered by the Fundamental Rights Committee to be placed in its report of 3 April 1947 – along with other provisions introducing the police power (subjecting these freedoms to public order, health and morality). From our point of view, the draft observed that while the right to “profess and practices” was protected, nothing was said about the right to propagate one’s faith. The real concern of A.K. Ayyar and B.N. Rau was that freedom of religion should not impede social reform. On this Raj Kumari Amrit Kaur, Hansa Mehta and KT Shah were clearer and more forceful. On 22 April 1947, there was some discussion on including the propagation of religion – with the major concern being social reform. But on a vote, the right to propagate was included with some markers pointing out that this right was already included in the guaranteed free speech provisions. When the freedom of religion clauses were debated on 1 May 1947, questions over religious instruction in school dominated. These were resolved by reference to a special committee which sought to present religious education in state schools. But the Draft Constitution of February 1948 clearly protected the “right to freely to profess, practice and propagate religion” (emphasis added). When the draft constitution was circulated, amongst other proposals, not too spirited response was made in some quarters to remove the right to propagate, which did not find acceptance. When the draft of the right to religion was debated on 3-7 December 1948, there was acute controversy over including the right to propagate in the freedom of religion clauses. Muslim member, Tajamaul Hussain, thought the right to propagate ought not be included because religion was a private affair. For different reasons, this approach was reinforced by Lokanath Misra who saw in the right to propagate all the evils that led to Partition. Eventually, the Assembly retained the right to propagate after taking into account that the right was not absolute but subject to limitations. The State would regulate conversions due to undue influence, money or presume, and it was already a part of the freedom of speech. Curiously, K.M. Munshi seem to take the simplistic view that in a secular state there is no premium attached to a religion increasing its numbers:
“In the present set up that we are now creating under this Constitution, there is a secular State. There is no particular advantage to a member of one community over another; nor is there any political advantage by increasing one’s fold. In those circumstances the word ‘propagate’ cannot possibly have dangerous implications, which some of the Members think that it has.”
He could not have been more wrong. Propagation and conversion were issues – not necessarily as part of a numbers game, but certainly in the corridors of Hindutva who felt that such propagation was an insult and injury to the Hindu faith.
We have already seen that an Indian Conversion (Regulation and Registration) Bill 1954 or the Backward Communities (Religious Protection) Bill 1960. As the Congress lost power, legislation was enacted in Orissa in 1977 (Freedom of Religion Act) and Madhya Pradesh in 1968 (Dharma Swatantra Adhiniyam 1968). The Orissa legislation was struck down (Yuhtha Hyde AIR 1973 Orissa 116) while the Madhya Pradesh Legislation was upheld (Rev. Stanislaus v. State of Madhya Pradesh AIR 1977 MP 163). Both these cases went up in appeal to the Supreme Court in Stanislaus v. State of Madhya Pradesh (1977) 1 SCC 677.
The Supreme Court’s judgment in Stanislaus was delivered by a five judge bench with the Chief Justice Ray writing the judgment for the Court delivered during the Emergency 17 January 1977. The Court concentrated on only two issues (a) legislative competence and (b) the meaning of the word “propagate” in the freedom of religion clause. For our purposes, we can ignore the legislative competence issue that the legislation is connected with public order (Judgment pr. 22-25) (although it is subject to doubt as to whether a nexus with public order lies). On the question of “propagation”, the entire observation of the Court needs to be quoted. The court observed :
“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 tenets. 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… 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.”
This is all that was said even though this premise is flawed. But, it is a Constitution Bench judgment and we have to live with it. But the fact remains that the Court did not examine the provisions of the statute and test it against Article 21 and the new jurisprudence of due process. Unfortunately in Satya Narayan’s case (2003) 7 SCC 439 (Khare CJ and Sinha J) no notice was issued but the Court (pr.2) without hearing the other side (a judicial indiscipline by the court!) followed Stanislaus, and refused to examine the implementation under the rule because this point was not raised below. I was in Court when the case was dismissed, this judgment – order was clearly an afterthought delivered later! This is not the way.
But let us go back to the decision in Stanislaus which is imperfect and incomplete. The fact remains that apart from saying propagation does not include conversion, the Supreme Court has not examined any legislation or rules for due process and arbitrariness which is now essential to constitutional practice as well settled by a series of post-Emergency declarations. Equally, propagation is also a part of free speech (which was affirmed by the Constituent Assembly again and again) and is subject to reasonable restrictions. This has never happened at the instance of any court, including the Supreme Court. That is why it is necessary to examine the legislatures themselves. The first generation legislation (consisting of the Orissa Freedom of Religion Act 1967) was relatively simple. It simply prohibited conversion by ‘force, ‘fraud’ and ‘inducement’ and of a minor under 18 year (Section 3) and punishable by imprisonment and fine upto Rs.5000; and in the case of SC and ST mandatory to 2 years or Rs.10,000 (Section 4). The offences were cognizable inviting police arrest (Section 5) and to be prosecuted with the sanction of the District Magistrate (Section 6). The due process implications were considerable but not examined. The second generation legislation was the Madhya Pradesh Swantantra Adhiniyam 1968 which added the term “allurement (including gifts) but also added a provision of prior intimation to the District Magistrate – failure to do so being an offence punishable with imprisonment upto 1 year and fine upto Rs.1000. This was the beginning of the surveillance system. This approach was followed by the Arunachal Freedom of Religion Act 1978, The Gujarat Freedom of Religion Act 2003, the Tamil Nadu Prohibition of Forcible Conversion Act 2002, and the Himachal Pradesh Freedom of Religion Act 2006.
As time went on, this mild model gave way a fuller surveillance-oversight model. The Himachal Act of 1978 was different from the Orissa (1967), Madhya Pradesh (1968) Arunachal (1978) and Tamil Nadu (2002) statutes in that it permitted the District Magistrate to enquire into the matter through himself or any agency (Section 4). In the Rules of 7 July 2007 under the Himachal Act, the District Magistrate was given the power to issue notice and constitute inquiries on “the basis of any complaint on information” if he is of the opinion for reasons to be recorded a conversion was without notice or “force as inducement have been used or is likely to be used in any conversion”. Any interloper (of the Sangh Parivar) creates grounds for an inquiry and a police case (S. 4) to induce harassment! It is this surveillance approach that has become a defacto practice elsewhere. But the emphasis returned to police investigations. Since the offences were cognizable and abetment was an offence, the police court run riots into investigating whatever they wanted. Effectively what was created was a conversion police.
Fourthly, the Gujarat Bill of 2006 and the Rajasthan Bill of 2008 flaunts a policy of an imperial Hinduism by enunciating a protective approach to reconversions to Hindus on the assumption that all in India were Hindus, including sects which broke away from the Hindu fold as well as Buddhists and Jains.
I believe that the effect of these legislatures and the procedures they inaugurate have never been tested in a court of law. It is in the process that lies the punishment.
V
There is a huge literature which suggests that we must examine legislation in terms of their purpose, intent and effect. This is not just for purposes of judicial interpretation but also to consider whom the legislation empowers and for what purpose. Equally, the use to which a legislation is put may vary and change.
Clearly the devastating event was the destruction of the Babri Masjid on 6 December 1992. This sent out a signal that as far as the persecution of minorities was concerned there were no ‘holds-barred”. A random look at the events around 2002 when the Tamil Nadu and Gujarat legislature surfaced shows that stopping conversions and effecating reconversion was the policy of the moment. In Orissa, 72 tribal Christians were brought back into the fold (Hindustan Times 11 June 2000). In Bengal, the Jamiat-e-Ulema sought the government’s help against forced recoversions (Indian Express 8 July 2000). Two weeks later, converts in the Korma Village in Orissa were threatened with persecution. A couple in Delhi were hounded when a dalit married a Jat (Hindustan Times 25 September 2001). By 2001, the All India Confederation of SC/ST organizations declared that 10 lakh persons would convert to Buddhism (Hindustan Times 7 October 2001) and thousands did (Hindu 7 November 2001). The dalits complained that the government tried to stop conversions (Hindustan Times 6 November 2001). In Meerut, in December 2001, 300 dalit villagers converted to Buddhism (Hindustan Times 28 December 2001). Accusations ran wild. The Chief Superintendent of Pondichery Central Prison was fairly accused of forced conversions (The Week April 2001). Why should dalits not convert if a dalit near Simla was rebuked for entering a temple (Hindu 20 May 2002). No action was taken on dalit persecution. That is why there were protests against Jayalalitha’s conversion statute in Tamil Nadu (Hindu 20 Oct. 2002, Statesman 9 Oct. 2002, Hindu October 2002). In New Delhi, the Shiv Sena tried to convert Muslim children to Hinduism (Hindustan Times 20 June 2002). But when the 40 Hindus happily converted to Islam, the VHP claimed the conversion was forced (Hindustan Times 24 August 2002). The VHP wanted to make re-conversions in Wayanad in Kerala (Hindustan Times 23 September 2002). Following the Ordinance of 2002, Thomas Stephen reported religious fanatics were emboldened to attack a service in Keenathur, Thiruvannamalai (Report 24-29 Sept. 2002). The VHP and RSS wanted such Anti Conversion Laws every where (Hindu 8 Oct. 2002). Just as with the Dangs in Rajasthan in 2000, two years later Christian bashing started again (Statesman 10 Oct. 2002). The oppression of dalits continued. In Jhajjar, Haryana 5 dalits were killed by a Hindu mob for skinning a dead cow (Hindustan Times 19 Oct. 2002). In protest, a dozen dalits embrace Buddhism (Hindu 22 Oct. 2002). What was triggered off was the Jhajjar effect by which 100s of dalits converted to Bhuddhism on Dewali (Indian Express 6 November 2002; Outlook 11 November 2002). Curiously even Sri Lanka imposed a ban on conversions (Hindustan Times 19 November 2002).
It was due to threats that a mass conversion in Chennai by dalits was stopped (Hindustan Times 7 Dec. 2002). In protest, the Dalit Panthers changed Hindu names to Tamil (Indian Express 7 Oct. 2002). On Christmas day, 123 dalits converted to Christianity (Hindu 26 December 2002). That the oppression of Christians continued was clear from an attack on a Catholic Church at Nadia near the Bangladesh border (Statesman 29 December 2002). The BJP held a conversion camp for Christians in Khallari, near Raipur (Indian Express 30 Dec. 2002; Hindu 30 Dec. 2002). Dalits in India were converting out of Hinduism (Outlook 18 Nov. 2002). It is in this context that the Gujarat Conversion Bill 2003 surfaced. The Christians’ All India Council protested against a survey of Christians in Gujarat (Hindu 12 March 2003). The Christians were bereft – warning against illegal re-conversions in Gujarat (Hindu 2 June 2003). The answer to the legislation was 1 lakh dalits in Gujarat proposed to convert to Buddhism (Indian Express 4 June 2003). Mass conversions are triggered off by attacks on dalits (Times of India 10 Sept. 2003). Meanwhile the BJP planned a conversion law for Delhi (Hindu 22 November 2003). Dalits were banned entry into the Nathdwara temple (Times of India 14 January 2004).
The Jamiat questioned the claim of the VHP about 586 Muslim families in Rajasthan being converted (Hindu 19 Feb. 2004). Ahead of the Kumbh Mela, an anti conversion stir started to highlight cases on allurement (Indian Express 3 Feb. 2004) Kamala Suraiya became a Muslim who was harassed by those in her new faith but said “I’m pleased with Islam the for I’ve changed” (Hindustan Times 17 Feb. 2006). Senseless attacks on Christian and dalits took place in these troubled years – and continued to do so.
I have deliberately related this handful of events to demonstrate the validity of the Jhajjar effect; to show that dalits and others leave the Hindu fold because they find it persecutory and wanting. The legislations of 2002-3 were passed by Hindutva politicians as desperate measures in retreat. Unable to manage its own practices, Hindutva attacked others. Virtually all conversions are not conversions of convenience like those who enter into the Muslim community to facilitate marriage and which were outlawed by a Deoband fatwa (Mail Today 4 July 2008). The other faiths do not want forced conversions. They gain nothing. The pressure on dalits to convert arises because Hinduism – no less in belief and its practice has no place for them, even though there is pressure on them to reconvert as in the case of 1000 Christians of Tamil Nadu (Times of India 13 April 2008). The VHP also concentrates on tribal re-conversions (Times of India 1 April 2008). But the North East is Christian. That is why the new Rajasthan Bill of 2008 makes room for reconversion without criminalization or surveillance while confirming its policy against all other kinds of conversion.
VI
The truth of the matter is that conversions take place for genuine reasons – albeit a reaction to persecution. In turn the anti-conversion legislation is not passed so that conversions should be fair but to persecute those who wish to convert though policing and surveillance. Criminalizing conversion is not the answer. An unhappy convert can always convert and declare his reasons for doing so. But these are not matters for the police and District Magistrate.
In my view (a) Anti conversion policies are designed to promote and provoke hate. (b) These legislations arm the police and magistracy to harass minorities and dalits. (c) The Supreme Court has never examined the processed effect of conversion legislation. (d) Criminalizing conversion is wrong. (e) In the process lies the punishment. (f) These legislations are linked to political Hindutva and subject to abuse. (g) Politically these legislations should be abolished, abolished, abolished.
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