India and its freedom to propagate religious restrictions

Do Indians have freedom of religion? Meaning, do they have the right to invite others into their faith and the right to easily leave their faith?

The Constitution says yes, but the laws say no.

India is an unusual nation where propagation of a religion is both a fundamental right and a criminal offence. A fundamental right is defined as one that enjoys a high level of protection from encroachment by the state. But Article 25 (the right to freely profess and propagate religion) doesn’t enjoy such protection in India.

In effect, the Constitution tells us that we are free to propagate our belief system, but when we do so, the police shows up and takes us away.

On 11 July 2024, it was reported that the Allahabad High Court had rejected bail for a man named Shriniwas Rav Nayak, with the observation that 'the Constitution confers on each individual the fundamental right to profess, practise and propagate his religion. However, the individual right to freedom of conscience and religion cannot be extended to construe a collective right to proselytise'.

Elsewhere on the Subcontinent, Nepal does not allow conversions at all — while Pakistan has the same phrasing as India does, with the same restrictions! There is, of course, no real freedom of religion in Pakistan on the specific issue of conversion — just as the honest observer will conclude there isn’t in India.

But this is not what was intended by those who wrote out the Constitution of India.

The Constituent Assembly's debate on religious freedom took place on 6 December 1948.

It came after meetings of the Minorities Committee and the Committee on Fundamental Rights, which discussed the issue in detail and produced the text that is today Article 25 of the Constitution of India.

It reads:

The key word here is 'propagate', which the dictionary defines as 'to spread and promote', and 'to breed'. The context in which the word was debated by India’s Constituent Assembly was that of conversions, specifically by Christians.

Gujarat’s K.M. Munshi, the Hindu conservative, was part of the group that arrived at the final text, and he said of the word ‘propagate’ that: ‘I know it was on this word that the Christian community laid the greatest emphasis, not because they wanted to convert people aggressively, but because the word “propagate” was a fundamental part of their tenet.’ And ‘so long as religion is religion, conversion by free exercise of conscience had to be recognised.’

People must not fear the idea of a right to propagate, Munshi said, because ‘whatever conversions take place… are only the result of persuasion and not because of material advantages’. Note that conversion was always accepted as the reason for propagation.

In the Interim Report on Fundamental Rights dated 1 May 1947, Frank Anthony had spoken to the committee and said: "My community [he was an Anglo-Indian] does not propagate. We do not convert, nor are we converted. But I do appreciate how deeply, how passionately millions of Christians feel on this right to propagate their religion."

Anthony, the founder of a school network that still exists around India, congratulated the majority for retaining "in spite of its contentious character" the words ‘to propagate’, "a right which is regarded as perhaps the most fundamental of Christian rights".

T.T. Krishnamachari said that Dalits became Christian because of the status it gave them, that Hindu reform would deter such conversions and that the right to propagate also applied to Hindus and Arya Samajists, who were free under the wording of this law to carry out their conversion activities, which they called ‘shuddhi’.

The point here is that the meaning of the word ‘propagate’ was understood by all as the right to, in Munshi’s words, ‘persuade people to join their faith’. That is, to convert.

But what would eventually happen instead in India, as we see around us, is that the state would step in to remove not only the right to propagate a religion, but also the right of the individual to change her religion.

The only opposition in the Constituent Assembly to the right to propagate one's religion came from a 26-year-old man from Odisha. This was Lokanath Misra, brother of Ranganath Misra who would later become Chief Justice of the Supreme Court, and uncle of Dipak Misra, also to become Chief Justice.

Lokanath Misra said he didn't have a problem, as he said, with propagation. "If people should propagate their religion, let them do so", but "only I crave, let not the Constitution put it as a fundamental right and encourage it". His opposition also came from an understanding of the right to propagate meaning the right to convert others. Note, too, that he did not wish to forbid it — merely opposed enumerating it as a fundamental right, a higher right.

V.P. Bharatiya, writing in the Journal of Indian Law Institute (‘Propagation of Religion: Stanislaus vs State of MP’, vol. 19, no. 3, July–Sept 1977), says the specificity in the debates gave the impression that the inclusion of the word 'propagate' 'creates a specific fundamental right to convert’.

Dr B.R. Ambedkar was also present for the debate, but did not speak. He said he had nothing to add to what the others had said in defence of the right to propagate religion. It should be noted that Ambedkar’s original draft submitted to the Constituent Assembly’s committees bore the words: ‘right to profess, to preach and to convert, within limits compatible with public order and morality’.

He was satisfied that 'propagate' meant the same thing — to preach with the aim to gain a convert. He would himself go on to leave Hinduism and convert to Buddhism, together with more than 3 lakh other Dalit citizens, in Nagpur on 14 October 1956.

Beginning in the 1970s, however, India’s judiciary and its police began to institute a series of practices that have resulted in us arriving where we are today: a nation whose Constitution gives citizens the freedom of religion, but whose establishment disallows it through indiscriminate use of criminal laws.

Views are personal

More of Aakar Patel's writings can be read here