Focus on Rights

Sliding down the Gadarene slope
As we welcome a year that projects our divisiveness more flamboyantly than ever, (all these decades on racial lines and now, it appears, increasingly, on religious lines), it might be appropriate to reflect on the experiences of our neighbouring countries in dealing with some of these same issues.

In India, for example, home to deadly and frequent religious fanaticism, anti-conversion laws have been more the norm rather than the exception, stemming from pre-independence days. Thus, we have the Raigarh State Conversion Act 1936, the Patna Freedom of Religion Act of 1942, the Sarguja State Apostasy Act 1945 and the Udaipur State Anti-Conversion Act 1946 with states such as Bikaner, Jodhpur, Kalahandi and Kota following suit.

Following independence, aborted laws in this respect at the national level included the Indian Conversion (Regulation and Registration) Bill (1954), the Backward Communities (Religious Protection) Bill (1960) and the Freedom of Religion Bill (1979).

Notwithstanding, states went on to enact their own anti conversion laws, notably the Orissa Freedom of Religion Act 1967, the Madhya Pradesh Dharma Swatantraya Adhiniyam 1968, the Arunachal Pradesh Freedom of Religion Act, 1978 and more recently, the Tamil Nadu Prohibition of Forcible Conversion of Religion Ordinance (2002).

These laws defined what was meant by `Government', `conversion', `indigenous faith', `force', `fraud', `inducement' and made forced conversion a cognisable offence under sections 295 A and 298 of the Indian Penal Code. Accordingly, malice and deliberate intention to hurt the sentiments of others became a penal offence punishable by imprisonment and fines.

While the immediate target of these laws were Hindus who converted to Christianity, those converting to Buddhism were also affected as were converts, obviously to Islam. The overall objective of many of the state laws were to confine Hindus within the rigid caste barriers of Hinduism, manifested particularly by another interesting development stipulating while any low caste Hindu who 're-converts' back to Hinduism, may reclaim his original caste.

In contradistinction to these developments, the Indian Constitution prescribed, in Article 25, that 'subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practise and propagate religion." In interpreting this provision later on, it is a quaint side note that Buddhism was defined as a religion by the courts examining a dispute from Rajasthan in 1959 whereby a religion was looked upon as a system of not only beliefs but also doctrines.

Article 26 gave religious denominations, the freedom to manage religious affairs. These articles of the Indian Constitution have often been pointed to as indicators of the secular nature of the Indian Republic. The balance attempted to be struck between the two, namely the secular nature of the constitutional provisions and efforts by the State to enact statutes, the direct objective of which was aimed against converts from Hinduism to another religion/belief rather vice versa, were often uneasy, as were legal opinions on this relationship.

On the one hand, we had the courts stating, (as some would argue, over liberally), that since the constitutional law contemplated religious denominations in the freedoms that it guarantees ( in Article 26), the internal management of such denominations could not be the concern of the Government. Therefore, if a hospital run by a Christian denomination provides free treatment for Christians, non-Christians may be free to enter such a hospital but cannot complain of discrimination in their not being given free treatment.

On the other hand, we have the decision in Reverend Stainislaus v. State of Madhya Pradesh (AIR 1977 SC 908) where blurred lines were drawn between the freedom to propagate, (which the Indian Constitution allowed), that was defined as buttressing the freedom of conscience necessary for the adoption of a new religion or doctrine and conversion as involving violation of the right to free choice.

This is a decision that has been cited by Sri Lanka's Supreme Court in recent constitutional matters involving in challenges to three bills relating to the incorporation of particular religious institutions, which this column had occasion to analyse some time back, wherein bills seeking to set up prayer centres which included among their objects, assisting people to enable them to set up in self employment or to obtain job opportunities, were held to be inconsistent not only with Article 10 but also Article 9 of the Constitution, giving Buddhism the foremost place in the country.

Sri Lanka's second Republican Constitution of 1978, of course, does not guarantee the freedom to propagate religion, thus leading the Court to state that what has been articulated in India, must apply with greater force in this country in what are, by far, the most sweeping statements made by the Court throughout the past several decades on fundamental issues affecting religious freedom.

It is a profound irony in our troubled society that, as contrasted to the problematic dictates of the 1978 Constitution, our Independence Constitution contemplated a more far sighted balance between the religions.

Thus, we have the much touted Section 29(2) stipulating that Parliament cannot make laws that would prohibit or restrict the free exercise of any religion, make persons of any community or religion liable to disabilities or restrictions which other persons of other communities or religions are not made liable, confer any privilege in a like manner or alter the constitution of any religious body except with the consent of the governing authority of that body.

This section had been famously decided by the Privy Council (at that time, the country's highest court of appeal), to enshrine "entrenched religious and racial matters that shall not be the subject of legislation. They represent the solemn balance of rights between the citizens of Ceylon, the fundamental conditions on which inter se, they accepted the Constitution; and these are therefore unalterable under the Constitution." (The Bribery Commissioner Vs Ranasinghe, (1964 (66) NLR, 73, p78 )

Whether these solemn judicial assertions could have been taken to mean that the provisions in question were unalterable, had been a question that had preoccupied constitutional thinkers for much of that decade and beyond. Neither is Section 29 free from all doubts and ambiguities, much of which also dominated constitutional thought during that time. However, it is a sobering thought that the independence constitutional framework appear to be wiser, (despite its inadequacies), than what prevails during these disaster-stricken years when extremists and fanatics occupy the middle space with sanity deserting us by leaps and bounds.

President Chandrika Kumaratunga's strongly-worded warnings this week prohibiting religious upheavals as opposed to the marked silence of the United National Front government, were timely in this regard. Similar statements from religious leaders both from the Catholic church as well as from Buddhist groupings were issued, stressing the core issue of unethical conversions to be of concern to all religions.

However, in this as in other crises, we appear to be facing a collective slide down the Gadarene slope. Its obvious consequences would be the superimposition of religious vulnerability on an already existing racial vulnerability in Sri Lanka. The latter has already cost us a portion of our country, which now is subject to irretrievably megalomaniac rule, regardless of what the pundits would say. The former promises to forfeit to us, the remaining portion. If this is what we want, this is most certainly, what we will get.

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