REV. STAINISLAUS versus STATE OF MADHYA PRADESH & ORS.

REV. STA:INISLAUS

STATE OF MADHYA PRADESH & ORS.

January 17, 1977

{A N. RAY, c. J.; M. H. BllG, R. s. SARKARIA, p, N. SHJNGHAL AND

. • JASWANT SINGH, JJ.]

Constitution of India-Article 25(1)-Freedom of re/igion-Rig;zt to pro-fess-Practice and propogate religion-Whether forcible and fraudulent con-version included-Public order-Meaning of-Seventh Schedule List II Entry 1-Madhya Pradesh Dharnia Swatantraya Adhlnivam 1968-0rissa Freedom of Religion Act 1967-Constitutional validity of.

The constitutional validity of the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968, was challenged in the High Court of Madhya Pradesh and the constitutional validity of the Orissa Freedom of Religion Act, 1967 was challenged in the High Court of Orissa. The two Acts prohibit forcible con-version and make the offence punishable. The Madhya Pradesh High Court upheld the validity of the Act. The Orissa High Court held that Art. 25 ( 1) of the Constitution guarantees propogatj.on of religion and conversion 1s part of Christian religion; that the State Legislature has no power to enact the impugned legislation which in pith and substance is law relating to religion; and that entry 97 of List I would apply.

Upholding the validity of both the Acts,

HELO.: ( 1) Article 25 guarantees to all persons right to fr.eedom and con-science and the right freely to profess, pract.ice and propogate religion subject to public order, morality and health. The word 'propogate' has beel'l used in the Article as meaning to transmit or spread from person to person or .from place to place. The Article does not grant right to convert other person to one's own religion but to transmit or spread one's religion by an exposition of its tenets. The freedom of religion .enshrined in Art. 25 is not guaranteed in respect of one religion ol)ly but covers all religions alike which can be pro-perly enjoyed by person if he exercises his right in manner commensurate with the like freedom of persons following other religion. What is freedom for one is freedom for the other in equal measure and there can, therefore, be no such thing as fundamental right to convert any person to one's own religion. [616 B-F, 617 A-BJ

(2) The Madhya Pradesh Act prohibits conversion from one religion to another by use of force, allurement or fraudulent means and matters inciden-tal thereto. Si!Jlilarly, the Orissa Act prohibits conversion by the use of force ·or by inducemen.t or by any fraudulent means.· Both the statutes, therefore, clearly provide for the maintenanee of public order because if forcible conver-sion had not been prohibited that would have created public disorder in the States. The expression "public order" has wide connotation. [617 C-E]

Ratilal Pc.11achand Gandhi v. The State of Bombay & Ors. [1954] S.C.R. 1055; Ramesh Thappar v. The State of Madras [1950] S.C.R. 594; Ramiilal Modi v. State of U.P. [1957] S.C.R. 860 and Arun Ghosh v. State of West Bengal [1966] I S.C.R. 709, followed.

{3) If an attempt is made to raise communal passions, e.g. on the .ground that someone has been forcibly converted to another. religion it would in all probability give tise to an apprehe~&lon of breach of the nublic. o:der effect-ing ·!he community at large. The impugned Acts· therefore fall w1thm the our-view of Entry I of List II of the Seventh Schedule as they are meant to avoid 5-112SCI/77

disturbaD:ce to the public order by prohibiting conversion from one religion to another m manner r.eprehensible to the. conscience of the community. The two Acts d.o i:ot provide for the regulat10n of religion and do not fall under Entry 97 of Lm I. [618 A-C]

CIVIL APPELLATE JURISDICTION : Civil Appeal N 1489 & 1511 of 1974. OS.

(Appeals by certificate/Special Leave from the Judgment and Order dated 23-4-1974 of the Madhya Pradesh 'High Court in Misc Petition No. 136/73). ·

Criminal Appeal No. 255 of 1974.

·(From the Judgment and Order dated 23-4-1974 of the Madhya Pradesh High Court in Criminal Revision No. 159/71) and

Civil Appeal Nos. 344-346 of 1976.

(Appeals by Special Leave from the Judgment and Order dated 24-10-1972 of the Orissa High Court in C.J.C. 185, 186 and 217 of 1969).

Frank Anthony, in CA 1489, Crl. A. 255/74 and CA 346/76 for the appellant in CAs 1489 and 1511/74 and Crl. A. No. 255/74 and RR. 1 and 2 in 'CAs 346/76.

Soli J. Sorabjee in CA 1511, Crl. A. 255/74 J. B. Dadachanji, K. J. /ohn,, O. C. Mathur and Ravinder Narain for the appellant in CAs 1489 and 1511/74 and Crl. A. No. 255/74 and RR. 1 and 2 in CAs 346/76.

Gobind Das (In CAs 344-346/76) B. Parthasarthi, for the appel-lants in CAs 344-346/76.

Soli J. Sorabjee, B. P. Maheshwari and Suresh Sethi, for R. 3 in CA 346/76.

Brijbans Kishore, B. R. SabharwaJ, for RR. in CA 345/76.

Gobind Das, Raj Kumar Mehta, for the Intervener Orissa) in C.A. 1489/74.

(State

The Judgment of the Court was delivered by

RAY, C. J.-These appeals were hear~ together ?ecause they rai~e common questions of law relating to the mterpretat1on of the Consti-tution.

Civil Appeals No. 1489 and 1511 of.1974 and Criminal Appeal No. 255. of 1974 are directed against Judgment of the Madhya "Pradesh High Court dated. 23 Ap~il: 1974. We shall refer to these as the Madhya Pradesh cases .. CIVIi .Appeals No. 344-346 of 1976 relate to judgment of the Orissa High Court d.ated 24 October, 1972. We shall refer tc:dhese _appeals as the Onssa cases.

The controversy in the Madhya Pradesh .case~ relates to the Madhya Pradesh Dharina Swatantraya Adhiniyam, 1968, hereinafter referred . to. as· the Madhya Pradesh Act. . The controversy in . the Orissa cases arises out of the Orissa Freedom. ,of Religion Act, 1967 hereinafter referred to as the Orissa Act

The provisions of the 'two Acts. in so far as they relate to prohi-bition of forcible conversion and punishment therefor, are similar and the questions which have been raised before us are common to 1'oth of them. It will, therefore, be enough, for the purpose of appre-ciating the controversy, to make som.ewhar'detailed mention of the facts of th\l Madhya Pradesh case. . . . .

. . . . The Sub-Divisional Magistrate of. Baloda-Bazar sanctioned the pro"secution of Rev. Stainislaus for the commission of offences under i:ections 3, 4 and 5 (2) of the Madhya P~adesh Act. When the case came up before Magistrate, First-Class, Baloda-Bazar, the appellant Rev. Stainislaus raised preliminary objection that the State Legislature did not have the· necessary legislative competence and the Madhya Pradesh Act was ultra vires the Constitution as it did not fall within the purview of Entry I of. List If and Entry I of Li.st III of the Seventh Schedule. The appellant's contention . was t'hat it was covered by Entry 97 of List I so that Parliament alone had the power to make the law and not the State Legislature. An objection was also raised that the provisions of sections 3, 4 · and $ (2) of the Act contravened Article 25 of the Constitution and were -roid. The Magistrate took the view that there was no force in the objection and did not refer the case to the High Court under soction 432 of the Code of Criminal Procedure, 1898.

The appellant applied to the Additional Sessions Judge . for revision of the Magistrate's order refusing to make. reference to the High Court. The Additional Sessions Judge also t08k the view that no question of constitutional importance arose in the case and he did not think it necessary to mak61 reference to the High Court.

The appellant thereupon applied to the High Court for revision nnder section 439 of the Code of Criminal Procedure and he also filed ll petition under Articles 226 and 227 of the Constitution. ·

The High Court heard both the revision and the writ .petition together. The appellant raised the following three questions in the High Court :-

(i) that sections 3, 4, 5 (2) and 6 of the M. P. Dharma Swatantraya Adhiniyam, 1968 are violat:ve of the · petitioner's fundamental rights guaranteed by Article 25 ( 1) of the Constitution of India;

(ii) that in exercise of powers conferred by Entry No. 1 . of List II, read with Entry No. 1 of List III of the · Seventh Schedule the Madhya Pradesh Legislature in the name of pub~c order could not have enacted

the said legislation. But the matter would fall with-in the scope of Entry No. 97 of List I of the Seventh Schedule, which confers residuary powers on Parlia-ment to legislate in respect of any matters not covered by List I, List II or List III. Therefore it is contended that Parliament alone had the powe; to legislate on this subject and the legislation enact-ed by the State Legislature is ultra vires the powers. of the State legislature;

(iii) that section 5(1) and section 5(2) of the M. P. Dharma Swatantraya Adhiniyam, 1968 amount to testimonial compulsion and, therefore, the said · provisions are violative q:f Article 20(3) of the Constitution of India.

The High Court examined the controversy with reference to the relevant provisions of the Madhya Pradesh Act and the Madhya Pradesh Dharma SWatantraya Rules, 1969 and held as follows:-

"what is penalised is conversion by force, fraud' or by allurement. The other element is that every person has right to profess his. own religion and to act according to it. Any interference with that right of the other person by resorting to conversion by force, fraud or allurement cannot, in our opinion, .be said to contravene Article 25 ( 1) of the Constitution of India, as the Article guarantees religious freedom subject to public health. As such, we do not find that the provisions of sect.ions 3, 4 and 5 of the M. P. Dharma Swatantraya Adhiniyam, 1968 are violative of Arti-cle 25 (1) of the Constitution of India. On the other hand. it guarantees that religious freedom to one and all including those who might be amenable to conversion by force, fraud or allurement. As such, the Act, in our opinion, guaran-tees equality of religious freedom to all, much less can it be said to encroach upon the religious freedom of any particular individual."

The High Cour~ therefore held that there was no justifi1;ation for the argument that sections 3, 4 and 5 of the Madhya Pradesh Act were violative of Article 25.( 1) of the Constitution. The High Court in fact went on to hold that those sections "establish the equality of religious freedom for all citizens by prohibiting conversion bv objectionable activities such as conversion by force, fraud and by allurement".

As regards the question of legislative competence, the High Court took note of some judgments of this Court and held that as "the phrase 'public order' conveys wider .connota~ion as laid do~n bv their Lordships. of the Supreme Court m the different cases. We are of the opinion that the subject matter of the Madhya Pradesh Dharma Swa•atJt.raya A<lhinivam. 1968 falls within the scope of Entry No. I of List lI of the Seventh Schedule! relating to the State List regarding public order".

On ·the remaining point relating to testimonial compulsion with reference to Article 20(3) of the Constitution, the High Court held • that section 5 of the Madhya Pradesh Act read with Form A, pres· cribed by the Rules, merely made provision for the giving of intima-tion to the District Magistrate about conversion and did not require its maker to make· confession of any offence as to whether the conversion had been made on account of fraud, force or allurement, which had been penalised by the Act. The High Court thus held that mere giving of such information was not violative of Article 30(1) of the Constitution. But the question of testimonial coinpul· sion within the meaning of Article 20(3) of the Constitution has not been raised for our ·consideration.

The Orissa cases arose out of petitions under Article 226 of the Constitution challenging the vires of the Orissa Act. The High

Court stated its conclusions in those cases as follow$.:-

( 1) Article 25 ( 1) guarantees propagatio~ of religion and conversion is part of thei Christian religion.

{2) Prohibition of conversion by 'force' or by 'fraud' as defined by the Act would be covered by the limita-tion subject to which the right is guaranteed under_ Article 25 (1) .

(3) The definition·of the term 'inducement' is vague,and many proselytizing adivities may .be covered by the definition and the restriction in Article 25 ( 1 ) cannot be said to cover the wide definition.

( 4) The State Legislature has no power to enact the impugned legislation which in pith and substance is law relating to religion. Entry No. 1 of either List II. or List III does not authorise the impugned legis-lation.

(5) Entry 97 of List I applies.

·.The High Court has therefore declared the Orissa Act to be ultra vires the Constitution and directed the issue of mandamus to the State Government not to give effect to it. The criminal cases which were pending have been quashed,

. The common questions which have been raised for our considera-· l:ioi:J: are (ll whether the two Acts were violative of the Jun(:!amenta:I right guaranteed under Article 25 (1) of the Constitution, and (2) whether the State Legislatures were competent to enact them ?

Article 2.5 (1) of the Constitution reads as foUows :

"25 ( 1) Subject to public order, morality and health and to the other provisions of this Part, all persons-are eauallv entitled to freedom of comcie1ice and the

· right freely to profess, practise and 'propagate reli~ gion." " · · - ;: ·

,cou~~l for the appellant has argued 'that the right to· 'propagate' o~e s rehg10n mean~ the nght to convert person. to one's own reli- • · g10n. On that basis, counsel has argued further that the right to ·convert person fo one's own rel:gion is fundamental right guaran-teed by Article 25 ( 1) . of the Constitution. ·

The expression 'propagate' has number of meanings, including "to multiply specimens of (a plant, animal, disease etc.) by any process of ~atural reproduction from the parent stpck", but that can-not, for obv10us reasons, be the meaning for purposes of Article 25 ( l) ·of the Constitution. The Article guarantees right to freedom of religion, and the expression 'propagate' cannot therefore be said to have been used in biological sense.

The expression 'propagate .. has been defined in the Shorter Oxford Dictionary. to mean "to spread from person to person, or from place to place, to disseminate, diffuse (a statement, belief, practice, etc.)".

According to the Century Dictionary (which is an Encylopaedic Lexicon of the English Language) Vol. VI, 'propagate' means as follows:-

"To transmit or spread from person to person · or from place to place; carry forward or onward; diffuse; extend; as to propagate report; to propagate the Christian religion".

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 cons-cience" to every citizen, and not merely to the followers of one parti-cular religion, and that, in turn, postulates that there is no fundame:a-tal right to convert another person to one's own religio11. because if p person purposely undertakes the conversion of another ·person to his religion, as distinguished from his effort to transmit or spread th1 tenets of his religion, that would impinge on the "freedom of com-cience" guaranteed to all tho citizens of the country .alike.

The meaning of guarantee under Article 25 of tho Constitution came up for consideration in this Court in Ratilal Panachand Gandhi T. The State of Bombay & Ors.(1) and it was held as follows:-

"Thus, subject to the restrictions which this Article imposes, every person has furidamental right under our Constitution not merely to entertain such religiom• belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt act~ as are enjoined or ·sanctioned by his religion and further to propagate his religiom views for the ediftcation of others."

------·-·--

(!) [1954] S.Cl't. 10~5.

This Court has given the correct meaning of the Article, and we find no justilication for the view that it grants fundamental right to convert persons to one's own religion. . It. has to be appreciated that the freedom of religion enshrined in the' Article is not guaranteed in respect of one religion only, but covers all religions alike, and it can be properly enjoyed by person if he exercises his right in 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 funda-mental right to convert any person to one's own religion.

It was next been argued by counsel that the Legislatures of Madhya Pradesh and Orissa States did not have legislative competence to pass the Madhya Pradesh Act and the Orissa Act· respectively, because their laws regulate 'religion' and fall under the Residuary Entry 97 in · List I of the Seventh.Schedule to the Constitution.

It is .~ot in controversy that the Madhya Pradesh Act provides for the prohibition of conversion from one religion to another by use of force or allurement, or by fraudulent means, and matters incidental thereto. The expressions "allurement" and 'fraud' have been defined by the Act. Section 3 of the Act prohibits conversion by use of force or by allurement or by fraudulent means and section 4 penalises such forcible conversion. Similarly, section 3 of the Orissa Act p;:ohi-bits forcible conversion by . the use of force or by inducement or by any fraudulent means, and section 4 penalises such forcible con-version. The Acts therefore clearly provide for the maintenance of public order for, i£ forcible conversion had not been prohibited, that would have created public disorder in the States.The expression "Public order" is of wide connotation. It must have_ the connotation which it is meant to provide as the very first Entry in List II. It has been held by this Court in Ramesh Thapper v. The Statt1 of Madra3(') that "public order" is, an expres-sion of wide connotation and signifies state of tranquillity which prevails among the members of political society as result of inter-nal regulation~ enforced by the Government which they have esta-blished".

Reference may also be made to the decision in Ramjilal Modi v. State of U. P. (') where this Court has held that the right of freedom of religion guaranteed by Articles 25 and 26 of the Constitution is expressly maqe subject to public order, morality and health, and that "it cannot be predicated that freedom of religion can have no bearing whatever on the maintenance of public order or that law creating an offence relating to religion cannot under any circumstances be said to have been enacted in the interests of public 01der". It has been held that these two Article's in terms contemplate that restric-tions may be imposed on the rights guaranteed by them in the inter-ests of public order. Reference may as well be made to the decision in Arun Ghosh v. State of West Benga1C) where it has been held that if thing disturbs the current of the life of the community, (1) (1950) S.CR. 594. (2) (1957) S.C.R. 860.

(3) [1966) I S.C.R. 709.

and does_ not merely affect an individual, it would amount to disturbance of the public order. Thus if an attempt is made to raise communal passions, e.g. on the ground that some one. has been "forcibly" converted to another religion, it would, in all probability, give rise to an apprehension of breach of the public order, affecting the community at large. 'f!ie impugned Acts therefore fall within the purview of Entry I of List II of the Seventh Schedule as they are meant to avoid disturbances to the public order by prohi-biting conversion from one religion to another in manner repi:ehensi-ble to the conscience of the community. The two Acts do not provide for the regulation of religion and' we do not find any justification for the argument that they fall under Entry 97 of List I of the Seventh Schedule.

In the result Civil Appeals No. 1489 and 1511 of 1974 and. Criminal Appeal No. '255 of 1974 fail and are <Iismissed while Civil Appeals No. ·344-346 of 1976 are allowed and the impugned judgment of the Orissa High Court dated 24 October, 1972 is set aside. The parties shall pay and bear their own costs, in Madhya Pradesh appeals. The State shall pay the respondent costs in the Orissa appeal accord-ing to previous direction.

C.As. Nos. 1489 & 1511 of 1974 amt

Cr.. '1. No. 255 of 1974 dismissed. C.As. Nos. 344-346 of 1976 allowed.