PETITIONER:
REV. STAINISLAUS
Vs.
RESPONDENT:
STATE OF MADHYA PRADESH & ORS.
DATE OF JUDGMENT17/01/1977
BENCH:
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 reli-
gion--Right to profess--Practice and propogate
religion--Whether forcible and fraudulent conversion in-
cluded--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 sub-
stance 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 persons right to
freedom and conscience and the right freely to profess,
practice and propogate religion subject to public order,
morality and health. The word ’propogate’ 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 fraudu-
lent 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]
JUDGMENT
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 1489. &
1511 of 1974.
(Appeals by certificate./Special Leave from the Judg-
ment 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. Dadac-
hanji, 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 interpre-
tation 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 there-
for, 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, 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 II and Entry I of
List III of the Seventh Schedule. The appellant’s conten-
tion 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 contra-
vened 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 impor-
tance 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 viola-
tive of the petitioner’s fundamental rights
guaranteed by Article 25 ( 1 ) of the Consti-
tution 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 legisla-
tion 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 Con-
stitution 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 includ-
ing 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 justi-
fication 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 objec-
tionable 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 compul-
sion 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 conver-
sion 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 considera-
tion.
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 Constitu-
tion.
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 Arti-
cle 25 (1) of the Constitution. The Article
guarantees a right to freedom of religion,
and the expression ’propagate’ cannot there-
fore be said to have been used in a biologi-
cal sense.
The expression ’propagate’ has been de-
fined 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 follow-
ers of one particular religion, and that, in turn, postu-
lates 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 coun-
try alike.
The meaning of guarantee under Article 25 of the Con-
stitution 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 con-
science 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 reli-
gion. 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 follow-
ing the other religions. What is freedom for one, is free-
dom for the other, in equal measure, and there can there-
fore 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 legisla-
tive competence to pass the Madhya Pradesh Act and the
Orissa Act respectively, because their laws regulate ’rel-
igion’ 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 pena-
lises 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 conno-
tation. 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 pre-
vails 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 predicat-
ed 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. Refer-
ence 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 some one has been "forcibly" converted to anoth-
er 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.
619