By Adv. Siju Thomas
I find quite many similarities in religious conversions and dissenting opinions in judgements. The inference that is drawn by the highest number of judges on a bench is the final judgement in a case. A dissent in such judgement is a minority view on a particular question of law before that court. Dissents particularly in the Supreme Court, are often perceived to be far ahead of their times for being against the norm. The celebrated dissents in our judicial history are very well-reasoned judgements, which arrived at often radical and revolutionary conclusions, based on the strength of such reasoning. Their value and foresightedness are in most cases recognized and appreciated, only decades later.
At the height of the emergency in India in 1976, civil liberties had been suspended. A group of political activists and leaders had been detained by the government without trial or formal charges under the Maintenance of Internal Security Act (MISA), a law passed during the emergency period. The Supreme Court rejected the writs of habeas corpus filed by the detainees holding that the right to life and personal liberty under Article 21 of the Indian Constitution could be suspended during an internal emergency. This interpretation was based on a strict reading of a law legitimately passed by the Parliament. In the face of tremendous pressure from the executive of the day, Justice HR Khanna’s was the sole dissent, which held that ‘detention without trial is an anathema to all those who love personal liberty.’
The parallels between dissents and religious conversions are striking. In a country where religion is a hot button issue, adoption of a new faith would be like expressing a minority view in one’s environment. Individuals who renounce their faith to accept a new one, may be disinherited from their family property, ostracized from their community, or subjected to horrific violence. Socially, these conversions may be problematic because they are against the norm of socio-cultural practices of a community from which a person dissents. These mores may be generations old, and therefore, any divergence from them is violently protested.
Be that as it may, the Constitution is unambiguous in its articulation of an individual’s right to religious freedom. All persons are ‘equally entitled’ to freely profess, practice and propagate their faith. The Constitution does not discriminate between persons from the majority or minority community. The fact that the adoption of a minority religion makes an individual susceptible to violence or hostility, has a chilling effect on the free exercise of her choice. The mandate of the anti-conversion laws to prove the authenticity of a person’s decision to follow a new faith, is barbaric and inhuman, much before it is unconstitutional. Genuineness of a conversion should be assumed unless declared otherwise by a person.
Expounding on an individual’s personal liberty, the Supreme Court in the landmark Puttaswamy case unanimously held that “… liberty enables the individual to have a choice of preferences on various facets of life including what and how one will eat, the way one will dress, the faith one will espouse and a myriad other matters on which autonomy and self-determination require a choice to be made within the privacy of the mind. The constitutional right to the freedom of religion under Article 25 has implicit within it the ability to choose a faith and the freedom to express or not express those choices to the world.”
As in a reasoned dissent, if we analyse the rationale that girds, as drastic a step as giving up a faith, we may be able to understand the phenomenon of religious conversions better. Vigilante groups that resort to violent intimidation and coerce people to return to their old faiths through ghar wapsi, miserably miss the plot. The Christian Adivasis from Chhattisgarh who stood their ground inspite of being thrown out of their villages, beaten up and deprived of their personal properties in December last year, demonstrate the moral strength of their convictions. Like Justice Khanna’s dissent that cost him the Chief Justiceship of India, these individuals continue to strive in their faith at a great personal cost. Matters of faith are spiritual, and as such the faithful do not easily waver because of the damage that an extremist or an unjust law can cause to their body or property. Bullying and threats cannot subdue the indomitable human spirit that sets its mind on a new course.
Siju is a lawyer and practices before the Supreme Court of India and the Delhi High Court. Siju completed his Bachelors’ in History from St. Stephen’s College, Delhi and earned his LLB from the Faculty of Law, Delhi University. He is a Fellow of the prestigious Blackstone program of Alliance Defending Freedom.