Rev. Stainislaus Vs. State of Madhya
Pradesh & Ors [1977] INSC 13 (17 January 1977)
RAY, A.N. (CJ) RAY, A.N. (CJ) BEG, M.
HAMEEDULLAH SARKARIA, RANJIT SINGH SHINGAL, P.N.
SINGH, JASWANT
CITATION: 1977 AIR 908 1977 SCR (2) 611 1977
SCC (1) 677
ACT:
Constitution of India--Article 25(1)--Freedom
of religion--Right to profess--Practice and propogate religion--Whether forcible
and fraudulent conversion included--Public order--Meaning of--Seventh Schedule
List II Entry 1--Madhya Pradesh Dharma Swatantraya Adhinivam 1968--Orissa
Freedom of Religion Act 1967--Constitutional validity of.
HEADNOTE:
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 conversion and make the offence punishable. The Madhya
Pradesh High Court upheld the validity of the Act. The Orissa High Court held
that Art. 25(2) of the Constitution guarantees propogation of religion and
conversion is a part Christian religion; that the State Legislature has no
power to enact the impugned legislation which in pith and substance is a law
relating to religion; and that entry 97 of List I would apply.
Upholding the validity of both the Acts,
HELD: (1) Article 25 guarantees to all people’s
right to freedom and conscience and the right freely to profess, practice and
propogate religion subject to public order, morality and health. The word 'propagate'
has been 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 only but covers all religions alike
which can be properly enjoyed by a person if he exercises his right in a 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 a fundamental right to convert any person to
one's own religion. [616 B-F, 617 A-B] (2) The Madhya Pradesh Act prohibits
conversion from one religion to another by use of force, allurement or fraudulent
means and matters incidental thereto. Similarly, the Orissa Act prohibits
conversion by the use of force or by inducement or by any fraudulent means.
Both the statutes, therefore, clearly provide for the maintenance of public
order because if forcible conversion had not been prohibited that would have
created public disorder in the States.
The expression "public order" has a
wide connotation.
[617 C-E] Ratilal Panachand Gandhi v. The
State of Bombay & Ors.
[1954] S.C.R. 2055; Ramesh Thappar v. The
State of Madras [1950] S.C.R. 594; Ramjilal Modi v. State of U.P. [1957] S.C.R.
860 and Arun Ghosh v. State of West Bengal [1966] 1 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 rise to an apprehension of a
breach of the public order affecting the community at large The impugned Acts
therefore fall within the purview of Entry 1 of List II of the Seventh Schedule
as they are meant to avoid 5--112SCI/77 612 disturbance to the public order by
prohibiting conversion from one religion to another in a manner reprehensible
to the conscience of the community. The two Acts do not provide for the
regulation of religion and do not fall under Entry 97 of List I. [618 A-C]
CIVIL APPELLATE JURISDICTION: Civil Appeal
Nos. 1489. & 1511 of 1974.
(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, CrI. 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. Sorabiee in CA 1511, Crl. A. 255/74
1. B. Dadachanji, K. J. John 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 appellants 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. Sabharwal, for RR. In
CA 345/76.
Gobind Das,Raj Kumar Mehta,for the Intervener
(State of Orissa) in C.A. 1489/74.
The Judgment of the Court was delivered by
RAY, C.J. These appeals were heard together because they raise common questions
of law relating to the interpretation of the Constitution.
Civil Appeals No. 1489 and 1511 of 1974 and
Criminal Appeal No. 255 of 1974 are directed against a judgment of the Madhya
Pradesh High Court dated 23 April, 1974. We shall refer to these as the Madhya
Pradesh cases. Civil Appeals No. 344-346 of 1976 relate to a judgment. of the
orissa High Court dated 24 October, 1972. We shall refer to these appeals as
the Orissa cases.
613 The controversy in the Madhya Pradesh
cases relates to the Madhya Pradesh Dharma 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. prohibition of forcible conversion and punishment therefor, are
similar and the questions which have been raised before us are common to both
of them. It will, therefore, be enough, for the purpose of appreciating the
controversy, to make a somewhat detailed mention of the facts of the Madhya
Pradesh case.
The Sub-Divisional Magistrate of Baloda-Bazar
sanctioned the prosecution of Rev. Stainislaus for the commission of offences
under sections 3, 4 and 5(2) of the Madhya Pradesh Act. When the case came up
before Magistrate, FirstClass, Baloda-Bazar, the appellant Rev. Stainislaus
raised a 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 II and
Entry I of List III of the Seventh Schedule. The appellant's contention was
that 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 5(2) of the Act contravened
Article 25 of the Constitution and were void. The Magistrate took the view that
there was no force in the.
objection and did not refer the case to the
High Court under section 432 of the Code of Criminal Procedure, 1898.
The appellant applied to the Additional
Sessions Judge for a revision of the Magistrate's order refusing to make a
reference to the High Court. The Additional Sessions Judge also took the view
that no question of constitutional importance arose in the case and he did not
think it necessary to make a reference to the High Court.
The appellant thereupon applied to the High
Court for revision under section 439 of the Code of Criminal Procedure and he
also filed a 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 violative
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 public order could not
have enacted 614 the said legislation. But the matter would fail within the
scope of Entry No. 97 of List I of the Seventh Schedule, which confers residuary
powers on Parliament to legislate in respect of any matters not covered by List
I, List I1 or List III. Therefore, it is contended that Parliament alone had
the power to legislate on this subject and the legislation enacted 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 of 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 a 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 g
uarantees religious freedom subject to public health. As such, we do not find
that the provisions of sections 3, 4 and 5 of the M.P. Dharma Swatantraya
Adhiniyam, 1968 are violative of Article 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, guarantees equality of religious freedom to all,
much less can it be said to encroach upon the religious freedom of any
particular individual." The High Court therefore held that there was no
justification 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 by 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 a wider connotation as laid
down by their Lordships! of the Supreme Court in the different cases. We are of
the opinion that the subject matter of the Madhya Pradesh Dharma Swatantraya
Adhiniyam, 1968 fails within the scope of Entry No. I of List II of the Seventh
Schedule relating to the State List regarding public order".
615 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,
prescribed by the Rules, merely made provision for the giving of intimation to
the District Magistrate about conversion and did not require its maker to make
a 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
compulsion 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 follows:-(1) Article 25(1)
guarantees propagation of religion and conversion is a part of the Christian
religion.
(2) Prohibition of conversion by 'force' or
by 'fraud' as defined by the Act would be covered by the limitation subject to
which the right is guaranteed under Article 25 (1).
(3) The definition of the term 'inducement'
is vague and many proselytizing activities 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 a law relating to religion.
Entry No. 1 of either List II or List III
does not authorise the impugned legislation.
(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 consideration are (1) whether the two Acts were violative of the
fundamental right guaranteed under Article 25(1) of the Constitution, and (2)
whether the State Legislatures were competent to enact them ? Article 25(1) of
the Constitution reads as follows:
"25(1) Subject to public order,'
morality and health and to the other provisions of this Part, all persons are
equally entitled to freedom of conscience and the right freely to profess,
practise and propagate religion." 616 Counsel for the appellant has argued
that the right to 'propagate' one's religion means the right to convert a
person to one's own religion. On that basis, counsel has argued further that
the right to convert a person to one's own religion is a fundamental right
guaranteed by Article 25 (1) of the Constitution.
The expression 'propagate' has a number of
meanings, including "to multiply specimens of (a plant, animal, disease
etc.) by any process of natural reproduction from the parent stock", but
that cannot, for obvious reasons, be the meaning for purposes of Article 25 (1)
of the Constitution. The Article guarantees a right to freedom of religion, and
the expression 'propagate' cannot therefore be said to have been used in a
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 propagate a 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 conscience" to
every citizen, and not merely to the followers of one particular religion, and
that, in turn, postulates that there is no fundamental right to convert another
person to one's own religion because if a person purposely undertakes the conversion
of another person to his religion, as distinguished from his effort to transmit
or spread the tenets of his religion, that would impinge on the "freedom
of conscience" guaranteed to all the citizens of the country alike.
The meaning of guarantee under Article 25 of
the Constitution came up for consideration in this Court in Ratilal Panachand
Gandhi v. The State of Bombay & Ors. (1) and it was held as follows :-"Thus,
subject to the restrictions which this Article imposes, every person has a fundamental
right under our Constitution not merely to entertain such, religious belief as
may be approved of by his judgment or conscience but to exhibit his belief and
ideas in such overt acts as are enjoined or sanctioned by his religion and
further to propagate his religious views for the edification of others."
(1) [1954]S.C.R. 1055.
617 This Court has given the correct meaning
of the Article, and we find no justification for the view that it grants. a
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 a person if he exercises his right in a 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 a fundamental 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 1 of the Seventh Schedule to the Constitution.
It is not 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 prohibits
forcible conversion by the use of force or by inducement or by any. Fraudulent
means, and section 4 penalises such forcible conversion. The Acts therefore
dearly provide for the maintenance of public order for, if 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 State of Madras(1) that "public order" is an
expression of wide connotation and signifies state of tranquility which prevails
among the members of a political society as a result of internal regulations
enforced by the Government which they have established".
Reference may also be made to the decision in
Ramjilal Modi v. State of U.P. (2) where this Court has held that the right of
freedom religion guaranteed by Articles 25 and 26 of the Constitution is
expressly made subject to public order, morality and health, and that "it
cannot be predicted that freedom of religion can have no bearing whatever on
the maintenance of public order or that a law creating an offence relating to
religion cannot under any circumstances be said to have been enacted in the
interests of public order". It has been held that these two Articles in
terms contemplate that restrictions may be imposed on the rights guaranteed by
them in the interests of public order. Reference may as well be made to the
decision in Arun Ghosh v. State of WeSt Bengal(a) where it has been held that
if a thing disturbs the current of the life of the community, (1) (1950) S.C.R.
594.
(2) (1957) S.C.R. 860 (3) (1966) 1 S.C.R. 709
618 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 someone has been "forcibly" converted to another
religion, it would, in all probability, give rise to an apprehension of a
breach of the public order, affecting the community at large. The 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
prohibiting conversion from one religion to another in a manner reprehensible
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 fall and are dismissed 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 according to previous direction.
P.H.P.
C.As. Nos. 1489 & 1511 of 1974 and Cr. A.
No. 255 of 1974 dismissed.
C.As. Nos. 344--346 of 1976 allowed.
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