REV. STAINISLAUS v. STATE OF MADHYA PRADESH & ORS.

611 REV. STA:INISLAUS _v:_ STATE OF MADHYA PRADESH & ORS. _January_ 17, 1977 ### {A N. RAY, c. J.; M. H. BllG, R. s. SARKARIA, p, N. SHJNGHAL AND . - JASWANT SINGH, JJ.] _Constitution_ _of_ _India-Article_ _25(1)-Freedom_ _of_ _re/igion-Rig;zt to pro-_ _fess-Practice and propogate religion-Whether forcible and fraudulent_ _con-_ _version_ _included-Public_ _order-Meaning_ _of-Seventh_ _Schedule_ _List_ _II Entry_ _1-Madhya_ _Pradesh Dharnia Swatantraya Adhlnivam_ _1968-0rissa_ _Freedom_ _of_ _Religion_ _Act_ _1967-Constitutional validity of._ 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 ( 1) of the Constitution guarantees propogatj.on of religion and conversion 1s a part of 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, HELO.: ( 1) Article 25 guarantees to all persons right to fr.eedom and conscience and the right freely to profess, pract.ice and propogate religion subject to public order, morality and health. The word 'propogate' has beel'l 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 ol)ly 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-BJ (2) The Madhya Pradesh Act prohibits conversion from one religion to another by use of force, allurement or fraudulent means and matters inciden tal thereto. Si!Jlilarly, the Orissa Act prohibits conversion by the use of force ·or by inducemen.t or by any fraudulent means.· Both the statutes, therefore, clearly provide for the maintenanee 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_ _Pc.11achand_ _Gandhi_ v. _The State_ _of_ _Bombay_ _&_ _Ors._ [1954] S.C.R. 1055; _Ramesh Thappar_ _v._ _The State_ _of_ _Madras_ [1950] _S.C.R._ 594; _Ramiilal_ _Modi_ v. _State_ _of_ _U.P._ [1957] S.C.R. 860 and _Arun Ghosh_ v. _State_ _of_ _West_ _Bengal_ [1966] I _S.C.R._ 709, _followed._ A B ## c D E F G {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 H . probability give tise to an apprehe~&lon of a breach of the nublic. o:der effecting ·!he community at large. The impugned Acts· therefore fall w1thm the ourview of Entry I of List II of the Seventh Schedule as they are meant to avoid 5-112SCI/77 A B 612 SUPREME COURT REPORTS (1977] 2 S.C.R. disturbaD:ce to the public order by prohibiting conversion from one religion to another m a manner r.eprehensible to the. conscience of the community. The two Acts d.o i:ot provide for the regulat10n of religion and do not fall under Entry 97 of Lm I. [618 A-C] CIVIL APPELLATE JURISDICTION : Civil Appeal N 1489 & 1511 of 1974. OS. (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 ## c 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). D E F G H RAY, C. J.-These appeals were hear~ together ?ecause they rai~e common questions of law relating to the mterpretat1on 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 Ap~il: 1974. We shall refer to these as the Madhya Pradesh cases .. CIVIi .Appeals No. 344-346 of 1976 relate to a judgment of the Orissa High Court d.ated 24 October, 1972. We shall refer tc:dhese _appeals as the Onssa cases. _Frank Anthony,_ in CA 1489, Crl. 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._ _Sorabjee_ in CA 1511, Crl. A. 255/74 _J._ _B. Dadachanji,_ _K._ _J._ _/ohn,, 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. SabharwaJ,_ for RR. in CA 345/76. _Gobind Das, Raj Kumar Mehta,_ for the _Intervener_ (State Orissa) in C.A. 1489/74. The Judgment of the Court was delivered by of ~ REV. STAINISLAUS v •. MADHYA PRADESH _(Ray,, C.l.)_ 613 The controversy in the Madhya Pradesh .case~ relates to the A-Madhya Pradesh Dharina 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 prohi bition of forcible conversion and punishment therefor, are similar B'· and the questions which have been raised before us are common to 1'oth of them. It will, therefore, be enough, for the purpose of appreciating the controversy, to make a som.ewhar'detailed mention of the facts of th\l Madhya Pradesh case. . . . . The Sub-Divisional Magistrate of. Baloda-Bazar sanctioned the pro"secution of Rev. Stainislaus for the commission of offences under C i:ections 3, 4 and _5_ (2) of the Madhya P~adesh Act. When the case came up before Magistrate, First-Class, 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 If and Entry I of Li.st III of the Seventh Schedule. The appellant's contention . was D t'hat 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 _$_ (2) of the Act contravened Article 25 of the Constitution and were -roid. The Magistrate took the view that there was no force in the objection and did not refer the case to the High Court under soction 432 of the Code of Criminal Procedure, 1898. B 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 t08k the view that no question of constitutional importance arose in the case and he did not think it necessary to mak61 a reference to the High Court. The appellant thereupon applied to the High Court for revision nnder section 439 of the Code of Criminal Procedure and he also filed ll 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 :- . G (i) that sections 3, 4, _5_ (2) and 6 of the M. P. Dharma Swatantraya Adhiniyam, 1968 are violat:ve 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 H - Seventh Schedule the Madhya Pradesh Legislature in the name of pub~c order could not have enacted A 8 ## c D E F G H 614 SUPREME COURT REPORTS [1977] 2 s.c.R. the said legislation. But the matter would fall 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 II or List III. Therefore it is contended that Parliament alone had the powe; 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 q:f 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 guarantees religious freedom subject to public health. As such, we do not find that the provisions of sect.ions 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 Cour~ therefore held that there was no justifi1;ation 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 bv 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 .connota~ion as laid do~n bv their Lordships. of the Supreme Court m the different cases. We are of the opinion that the subject matter of the Madhya Pradesh Dharma Swa•atJt.raya A<lhinivam. 1968 falls within the scope of Entry No. I of List lI of the Seventh Schedule! relating to the State List regarding public order". #### . ~ REV. STAINISi,.\US _v._ MADHYA PRA{)ESH _(Ray,_ C.J.) 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, pres· cribed 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 coinpul· sion within the meaning of Article 20(3) of the Constitution has not been raised for our ·consideration. A B ## The Orissa cases arose out of petitions under Article 226 of the c Constitution challenging the vires of the Orissa Act. The High Court stated its conclusions in those cases as follow$.: ( 1) Article 25 ( 1) guarantees propagatio~ of religion and conversion is a part of thei 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 adivities 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, D E F . The common questions which have been raised for our considera - l:ioi:J: are (ll whether the two Acts were violative of the Jun(:!amenta:I G right guaranteed under Article 25 (1) of the Constitution, and (2) whether the State Legislatures were competent to enact them ? Article 2.5 (1) of the Constitution reads as foUows : "25 ( 1) Subject to public order, morality and health and to the other provisions of this Part, all persons- are H eauallv entitled to freedom of comcie1ice and the - right freely to profess, practise and 'propagate reli~ gion." " - · - ;: · #### . SUPREME COURT RiPORTS [1977] 2 s.c.R.. #####,A **B** ## c _**D**_ E **p** **G** **H** 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 to 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 cons cience" to every citizen, and not merely to the followers of one particular religion, and that, in turn, postulates that there is no fundame:atal right to convert another person to one's own religio11. because if **a** person purposely undertakes the conversion of another ·person to **his** religion, as distinguished from his effort to transmit or spread **th1** tenets of his religion, that would impinge on the "freedom of comcience" guaranteed to all tho citizens of the country .alike. The meaning of guarantee under Article 25 of tho Constitution came up for consideration in this Court in _Ratilal Panachand Gandhi_ **T.** _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 furidamental right under our Constitution not merely to entertain such religiom• belief as may be approved of by his judgment or conscience but to exhibit his belief and ideas in such overt act~ as are enjoined or ·sanctioned by his religion and further to propagate his religiom views for the ediftcation of others." ------ ·-·-(!) [1954] _S.Cl't._ 10~5. ,cou~~l for the appellant has argued 'that the right to· 'propagate' o~e s rehg10n mean~ the nght to convert a person. to one's own reli- • - g10n. On that basis, counsel has argued further that the right to ·convert a person fo one's own rel:gion 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 ~atural reproduction from the parent stpck", but that cannot, for obv10us reasons, be the meaning for purposes of Article 25 ( l) ·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. _I_ REV. STAINISLAUS _V.,_ MADHYA PRADESH _(Ray,_ C.J.) 61 7 This Court has given the correct meaning of the Article, and we find no justilication 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 I of the Seventh.Schedule to the Constitution. It is .~ot 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 p;:ohibits 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 clearly provide for the maintenance of public order for, i£ 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_ _Statt1_ _of_ _Madra3(')_ that "public order" is, an expression of wide connotation and signifies state of tranquillity which prevails among the members of a political society as a result of internal regulation~ enforced by the Government which they have established". Reference may also be made to the decision in _Ramjilal Modi_ v. _State_ _of_ _U._ _P._ (') where this Court has held that the right of freedom of religion guaranteed by Articles 25 and 26 of the Constitution is expressly maqe subject to public order, morality and health, and that "it cannot be predicated 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 01der". It has been held that these two Article's in terms contemplate that restric tions 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 Benga1C)_ where it has been held that if a thing disturbs the current of the life of the community, (1) (1950) S.CR. 594. (2) (1957) S.C.R. 860. (3) [1966) I S.C.R. 709. A B ## c D E F G H A B ## c· 618 SUPREME COURT REPORTS [1977] 2 S.C.R. 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 some one. 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. 'f!ie 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 repi:ehensible 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 fail and are <Iismissed 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 _amt_ _Cr.._ '1. _No._ 255 _of_ 1974 _dismissed._ _C.As._ _Nos._ 344-346 _of_ 1976 _allowed._