Tamil Nadu Ordinance
on Religious Conversions
is a Hindu Fatwa
By 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)