Supreme Court Judgment That There's No Right To Convert Must Be Corrected : Justice RF Nariman

Justice RF Nariman, retired Supreme Court Judge, recently opined that the Supreme Court must revisit its 1977 judgment in the Reverend Stainislaus case which held that the right to propagate religion does not include the right to convert a person of another religion.

Justice Nariman said that the anti-conversion laws enacted by many States draw support from this judgment. He pointed out that Article 25 of the Constitution guarantees everyone the fundamental right to "profess", "practice, and "propagate" their religion. According to him, "propagate" religion certainly includes the right to persuade another person, without intimidation, to join one's religion. The result of the Supreme Court's judgment is in effect the deletion of the word "propagate" from Article 25.

Justice Nariman said that in the Constituent Assembly, the word "propagate" was specifically added in Article 25 at the instance of KM Munshi, who said that it was fundamental to the Christian community to be able to "bring persons over so that they can be saved by belief in Jesus."

"Unfortunately the Supreme Court in 1977 in the Reverend Stainislaus judgment, which was criticized severely by HM Seervai, our foremost Constitutional authority, held that "propagate" does not include the "right to convert" and that it only means the right to say something about your faith, which in any case is subsumed in the earlier right (right to profess) and in the right to freedom of speech and expression. So they(Court) almost cut the word out. The result is, of course, this slew of legislation we see all over the country, where conversion, even though it is not by force or intimidation, but merely by some persuasion, is now sought to be criminalised. This is something which the Supreme Court ought to rethink, revisit at the earliest. Unfortunately, Stainislaus is a 5-judge bench judgment. They will have to constitute a larger bench," he said.

Justice Nariman added that the judgment ignored the corresponding right of a person to join another religion.

"The Supreme Court Judgment needs to be corrected. It says "propagate" must stop at conversion; there is no right to conversion. What it forgets straightaway is the concomitant right of a person to be converted. Now, I can follow any religion I choose. I can change my religion midstream. That is recognized by Article 18 of the UN Declaration of Human Rights. If somebody persuades you to a particular point of view, how can you stop him? It's part of your right to freedom of speech and expression. So if I persuade you to a particular point of view and you accept, fine. Who am I to stand in the way? If the persuasion happens to be with intimidation, with force, with brandishments, certainly interdict. That is a misuse. But if you are converting purely by teaching you about a particular faith saying it is a great faith, come and join us, I see nothing wrong."

He was speaking at the 16th K.M. Bashir Memorial Lecture on 'Fraternity in a Secular State: The Protection of Cultural Rights and Duties' organised by the Press Club, Thiruvananthapuram.

Speaking on the theme of fraternity, Nariman said that the Constitution's Preamble, beginning with “We, the People of India", represents all the people of India, not merely the majority or any one community. “That must never be forgotten,” he said, adding that the dignity of the individual and the unity and integrity of the nation rest on the ideal of fraternity.

Nariman underlined that secularism was not introduced by the 42nd Amendment but was always implicit in the Constitution through the Fundamental Rights chapter.

"It is a misnomer to say that secularism was introduced only by the 42nd amendment some part of it was always already there in the Constitution...Secularism is an absolute must as a stepping stone towards achieving fraternity," Justice Nariman said.

He identified three “strands” of secularism:

1. State having no religion of its own, as reflected in Article 28's bar on religious instruction in state-funded institutions.

2. Non-discrimination on grounds of religion, which runs through Articles 15, 16, 29(2) and 30.

3. Positive rights of individuals, including the right to access public spaces without discrimination (Articles 15(2) and 17) and the right to practice, profess, and propagate religion under Article 25 and rights of religious denominations under Art. 26.

He pointed out that the freedom of religion under Article 25 is subject to "public order, morality and health" and not an absolute right. In the context of health, he said that the use of loudspeakers by places of worship must be banned, as they contribute to noise pollution.

“I find today every faith seems to get louder in its protestations and is making the Lord deaf. I find today that either a person is screaming in a microphone from a mosque or another is banging temple bells. All this must stop because this creates noise pollution. And if it creates noise pollution, it is covered by health primarily straight away. And every State should at the earliest according to me first ban loudspeakers and ban this kind of thing this bell ringing etc which disturbs people early morning and disturbs people's sleep. So it is again something that is that the State must take into its hand and do it down the board so that again you can't say that you are favoring X or favoring Y. You stop it completely. You can have loudspeakers in auditoriums like this where everybody wants to hear somebody and nothing goes out. But you can't have loudspeakers outside which creates a nuisance,” Justice Nariman said.

Nariman also lamented distortions in history textbooks that denigrate composite culture, warning that such trends threaten fraternity. He suggested that courts could be approached under Article 51A (fundamental duties) to direct expert panels to restore accuracy in school curricula.

He also spoke about his recent book An Ode to Fraternity, with forewords by the Dalai Lama and Cardinal Oswald Gracias. Cautioning against fanaticism,  he said that fanatics are people who neither understand their own faith nor respect others. 

Concluding his lecture, Nariman urged citizens to live by constitutional values irrespective of political changes. “Governments may come and go, but constitutional values endure. The stakes are nothing less than the dignity of the individual and the unity and integrity of this great country.”

Also from the event - Judges Who Say Judgment Was Delivered With “Divine Or Bovine Intervention” Violate Constitutional Oath : Justice Nariman

The lecture can be watched here.