Tamil Nadu Ordinance on Religious Conversions
is a Hindu FatwaBy Rajeev Dhavan
Why are laws passed? Surely, not because they are always in the public interest? Statutes wear many disguises to serve those who enact them. Gusfield's marvellous book, Symbolic Crusade, on America's whisky amendments serves as a common sense reminder that particular laws are passed for both `symbolic' and `instrumental' reasons. In all this, the politics of a law transcends its contents. The Tamil Nadu Chief Minister, Jayalalithaa's Ordinance on religious conversions is designed to assert her social and political power and to threaten minorities with oppression if they do anything more than quietly pray in their mosques and churches. The effect of the Ordinance is to project Ms. Jayalalithaa as the protector of a despondent Hinduism who will use the power of the state if a single conversion takes place in Tamil Nadu.
Why an Ordinance? Ordinances subvert democracy by presenting legislatures which represent the people with a fait accompli. When the Ordinance was presented to him for signature on October 5, 2002, Tamil Nadu's Governor, P.S. Ramamohan Rao, had a duty to advise Ms. Jayalalithaa that the Assembly was due to meet in three weeks on October 24; and that measures of this nature deserve to fully discussed on the floor of an elected legislature. But, he failed to do so. Both democracy and secularism are the poorer as a consequence. The Ordinance was a skin reaction to the recent `mass conversions' of poor Dalits in Madurai to the Seventh Day Adventist Church. The Dalits have more than cause to reject Hinduism. Ambedkar embraced Buddhism. Mass conversions by Dalits protest centuries of continuing oppression.
The cruelty has not stopped. On May 21, 2002, in the village of Thinniam in Tiruchi district, two Dalits, Murugesam and Ramaswamy, were branded with hot irons and forced to eat human excreta. Unfortunately, stories of oppression of Dalits — each more vile than the other — attract less attention than their conversion. The cause of the conversion is forgotten; the symptom of conversion has acquired priority on the political agenda. A Hinduism unable to cope with its injustices can hardly blame other faiths from accepting `refugees' into their attractively egalitarian folds. But, the Ordinance touts Hindu politics for future electoral advantage. Ms. Jayalalitha announced free lunches accompanied by spiritual education in the Kapaleeswar and, subsequently, 150 other temples. This is the state flaunting the `faith' for popularity among Hindus and for their votes. It helps to explain the timing and purpose of the Ordinance.
The Ordinance surpasses its Orissa and Madhya Pradesh prototypes in its timing, intent and content. Section 3 states that "No person shall convert or attempt to convert either directly or otherwise any person from one religion to another either by use of force or by allurements or by any fraudulent means". Abetment of conversion is also prohibited. Each magistrate virtually becomes the Lokpal — prosecutor of all offences because the Ordinance specifically requires anyone who is converted or who officiates in the conversion to inform the local magistrate. The Act targets conversions — criminalising attempt to, abetment of, and participation in, conversions. The word `either' in Section 3 enlarges an already wide ranging offence which attracts fines up to Rs.50,000 and imprisonment up to 3 years. To add insult to injury, this punishment is enhanced not just for minors but for women, Dalits, and tribals — who have undisputed experiential reasons to reject a Hindu faith that has shown only cruelty to some, if not all of them.
India's Constitution protects not just the freedom to believe and practise one's faith, but also to propagate it. This decision came after much deliberation. Not included in the Constitutional Committee's Draft Report of April 3, 1947, the right to propagate found inclusion in the suggestions of the Minorities Sub-Committee of April 19-22, 1947, to occupy its place in the Draft Constitutions of October 1947; and, then, February 1948. A spirited debate on December 3-7, 1948, in the Constituent Assembly led to a permanent inclusion of the right to propagate one's religion in the Constitution after duly considering any "dangerous implications" — with K.M. Munshi explaining that such a right was also inherent in the free speech provisions.
The Supreme Court's decision in the Stanilaus case in January 1977, approving similar Madhya Pradesh and Orissa legislations, declared that the right to propagate one's faith does not include the right to convert others to one's faith. The Stanilaus verdict is an unsatisfactory and cursorily written judgment — with `Emergency haste' written all over it. Relying on dictionary meanings of the word `propagate', the judgment rests on the distinction between "transmitting or spreading one's faith" and conversion. Surely, the latter flows from the former as a possible consequence. If a Hindu has a right to his own faith, he also has the right to choose another. Hinduism does not falter to convert others. Or, indeed, convert back into the fold in various subtle ways.
The Supreme Court's judgments on Hinduism (1965), Hindutva (1995) and Teaching Text Book Dharma (2002) underline how an expansionist Hinduism obfuscates reality. If the distinction between `spreading' ones faith and converting people is thin, the terms indicating `coercion' in the form of `force', `allurement' of `fraud' are no less ambiguous. In the Ordinance, `force' includes `threat of divine displeasure' and allurement includes `grant of material benefit, either monetary or otherwise'. As soon as a conversion takes place, a prima facie case is made out against both the converted and the faith converted into. The prefix "any" to fraudulent means enlarges the offence of conversion. Once this starts, this process becomes the punishment. And the punishment of one becomes a potential threat to all — including those who bona fide leave the Hindu faith to enter another. The Stanilaus case passes over important questions as to whether `conversions' are connected to public order which is a necessary requirement for the state to legislate on the subject. Conversions would give rise to public disorder only if Ms. Jayalalithaa's political cohorts or mischievous psuedo-fundamentalists create such disorder.
Neither the converts nor the priests act disorderly. The Stanilaus decision does not examine the issues confronting it with the care or concern due to such an important controversy. That the Supreme Court upheld the Orissa and Madhya Pradesh legislation does not mean that such legislation should be enacted — still less so in our hopelessly fragile and troubled times. The Ordinance sets up every District Magistrate in Tamil Nadu as a prosecuting Lokpal on conversions. Every single convert and participating priest has to report the conversion to the local magistracy. Such a close scrutiny of any faith has not taken place since the Inquisition. All converts inevitably wear a crown of thorns as they present themselves for inspection — to be ruthlessly interrogated and persecuted. The Ordinance creates a strong interfering mechanism intruding into people's choices about their faith in every district in Tamil Nadu.
The Tamil Nadu Ordinance is not a simple statute for "truth, justice and the Hindu way of life". It is a kind of Hindu fatwa exhorting Hindus not to convert to any faith on pain of imprisonment and fine. Only flogging is left out. And, even that takes place in prisons and police stations. No less, the fatwa warns all the non-Hindu faiths that if their teaching yields a convert, the Big Sister Tamil Nadu state through its magisterial cavalry will subject them to inquisition; and, if needs be, punishment. Of course, the Ordinance does not mention Hindus and Non-Hindus. But, is there any doubt that this is what the Ordinance is all about? Hypocrisy triumphs. Indian secularism is reserved for international meetings on Kashmir; and, bruised at home. Hinduism's enviable capacity to learn is replaced by an aggressively defensive bigotry.
(Published in the Hindu)