THIS essay examines the problematic and contradictory status of religion in the eyes of the state by looking at the legal attitude to speech involving religion. I want to argue that attitudes to religious speech are fairly stable across a wide range of laws, and are premised on constructing religion as a site of passion and unreason. In Indian law many of the restrictions on religious speech and speech about religion come from provisions in the law. For example Article 295 of the Indian Penal Code, a remnant from colonial times, makes punishable whoever with deliberate and malicious intention of outraging the feelings of any class of citizens attempts to insult the religious beliefs of that class.

There are laws restricting religious speech. Some state enactments, notably in Madhya Pradesh, Orissa and now Tamil Nadu regulate speech whose object is conversion. The use of religious speech is regulated in the context of elections. Under the Representation of People’s Act certain kinds of appeals on the basis of religion are deemed to be corrupt practices. Under Art 123(2) any attempt to induce a candidate or elector to believe that he or she will be rendered the object of divine displeasure, the appeal by a candidate to vote for or refrain from voting on ground of a candidate’s religion, race, caste or languages, the use of or appeal to religious symbols, are all instances of corrupt practice.

The difficulty is that the same attitudes to religious speech underlie laws with different intent. For example, as I shall show, the Supreme Court’s reasoning in upholding the legality of anti-conversion legislation is exactly the same as that behind a seemingly more secular and benign law, ‘The Representation of People’s Act’ that seeks to exclude appeals to religion from elections. The object is to regulate the appropriate forms of religious expression. It seems to me that legitimate protests against anti-conversion legislation are considerably weakened because even so called ‘secularists’ share the premises about religious speech that underlie it.

Let us look at conversion first. As is well known, the Supreme Court gave a notoriously contorted ruling in Rev. Stainslaus v. State of Madhya Pradesh. This case challenged two state acts that regulate activity aimed at conversion on the grounds that these acts violate Art 25 of the Constitution that specifically mentions the right to propagate religion. The Supreme Court upheld the acts against this challenge. The acts in the Stainslaus case did not prohibit all attempts at conversion, only attempts by force, fraud or inducement. But ‘force’ was defined broadly to include threat of divine punishment or displeasure and inducement to include the offer of gift or gratification that would include ‘intangible benefits’.

The court – in a typically casusitical fashion – suggested that these acts did not violate the right to propagate religion. It first drew a distinction between attempts to convert from simply transmitting a religion by the exposition of its tenets. The distinction, if one can make any sense of it at all, seems to turn largely on the motive of the speaker. If a person spoke to transmit tenets, he may not be punished, but if he harboured hopes that the person being addressed would accept the truth of his religion and convert, he would not be protected.

 

 

In support of its decisions in the Stainslaus case the Supreme Court said that if Article 25 – which protects the right to propagate – were to give a right to convert another person to one’s own religion that would violate another person’s right to religious freedom.

‘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 upon the freedom of conscience guaranteed to all citizens of the country alike.’

The court construed the freedom of religion clause simply as the right not to be targeted; conversion by another is objectionable because it conflicts with some conception of what is the proper way for important changes to come about in an individual’s life. The freedom of conscience just is the freedom to develop without any outside influences that cause pain. To have a right to exercise one’s religious beliefs just is the right not to have one’s sensibility offended, either by speech deemed insulting or being the target of conversion.

But the real premise of the judgment was this. The mere mention of divine displeasure or rewards constituted an attempt to convert by fraud. This is because appeals to such notions impair the capacity of the listener to reason correctly about their own beliefs. The court seems to assume throughout that people are somehow not capable of managing ‘religious’ ideas they receive, particularly if they are from lower castes. This paternalism runs through the recently enacted Tamil Nadu legislation as well.

Article 123 of the Representation of People’s Act prohibits undue influence on voters. Such undue influence includes: threatening a voter with excommunication and causing him to believe that he will become the object of divine displeasure. Such conduct interferes with the free exercise of electoral rights. I want to leave aside the issue of excommunication for the moment and focus on the appeals to divine displeasure.

 

 

One difficulty in applying this test is this. How does one distinguish between appeals to divine displeasure from appeals to religion generally? The same difficulty of course arises in the conversion case as well. What if the transmitting of tenets that is allowed, carries the implication that divine displeasure will follow if the tenets are not followed? Surely almost all religious appeals carry the thought that the person being appealed to would be better off if they heed the appeal than if they do not.

The courts have had some difficulty with this question. One clear way of identifying whether a threat of divine retribution is being exercised is to see if the candidate associates himself with some authority that might be in the position of authoritatively determining when divine displeasure would accrue. As it turns out this has been easier to establish in the case of Sikh candidates than almost any other. I do not have firm proof of this, but my impression is that an overwhelming number of cases tried under the divine displeasure clause have involved farmans from the Akal Takht to which candidates had imprudently given their consent.

 

 

The most interesting aspect of the ways in which the court construes the threat of divine displeasure clause is this: The courts reason that threatening anyone with divine displeasure puts great pressure on the threatened person and deprives them of the capacity of exercising their rational judgment. In judgment after judgment on this issue, the courts have argued that a suggestion of divine displeasure deprives a person of their abilities to make a choice. In cases like Ram Dial v. Sant Lal (1959); Harcharan Singh v. Sajan Singh (1985), among others, the court argued that after the leader of a sect had spoken, it practically left the voters with no choice. Religious appeals in this sense are like drugs or alcohol: they impair our capacity to choose.

In some ways this argument is bizarre. The intent of the statute seems to be to exclude certain kinds of religious appeals. There might be good reasons for excluding such appeals. The principal one might be the Hobbesian insight that in order to discharge our obligations to the state faithfully, we have to be relieved of all those sources of authority that induce even more fear in us than the state might. Or one might argue, on Rawlsian grounds, that as a mark of reciprocity, one ought not to appeal to one’s own comprehensive conception of the good in making public arguments.

But in the entire case law concerning the RPA, this rationale is not evident. What is more prominent is the idea that ‘religious speech’ appeals to the emotions, unleashes uncontrollable passions, and impairs reason. It controls people rather than they controlling it. Whether or not an appeal to divine authority impairs the voters’ ability to choose is certainly debatable, but it is neither here nor there. But the fact that the courts frequently refer to it is significant. Why? The logic of this claim is made more apparent in conversion cases: In Yulitha Hyde v. State of Orissa, the court wrote: ‘Threat of divine displeasure numbs the mental faculty; more so of an undeveloped mind and the actions of such a person thereafter, are not free and according to conscience.’ In cases involving the Representation of People’s Act the same assumption is made throughout.

 

 

If this analysis is correct, we can see a fairly stable set of assumptions about citizens that underlie two different domains that require abridging religious speech, whether it is attempts at conversion and the exclusion of religious appeal from elections. The court assumes throughout that citizens are, when it comes to receiving religious speech, or speech about religion, incapable of managing the impressions they receive – to use an old stoic concept.

If the insult is to one’s religion, or an exhortation is made in the name of religion, we are incapable of receiving the expression on our own terms; incapable of managing our own responses, condemned to receiving these expressions unfreely and helplessly, incapable as it were of self discipline. We can manage our impressions, exercise our religious choices and practice judgment, only when left alone. Hence the court’s emphasis that the right to freedom of religion just means the right to freedom from other people’s religion. Our choices are impaired, or faculties numbed, more so because we have undeveloped minds. This is the ‘secret’ rationale behind both anti-conversion legislation and the RPA.

 

 

It is undoubtedly the case that the limitations on missionary activity were initiated to protect Hinduism, but it is legitimized on a deeper set of assumptions concerning citizen capabilities, ones that surface in a wider range of discourses. The displacement onto religion as being, or being uniquely, debilitating of choice, simply masks the various conditions that impair the choice in the first place. And taken together they also point the tensions implicit in the state’s attitude toward religion. Religious belief is sufficiently important to warrant protection from having to seriously confront another religion; yet it is irrelevant for public discourse.

I happen to think that both anti-conversion laws and Article 123 of the Representation of People’s Act are bad laws. Anti-conversion legislation is illegitimately paternalistic. It sets up the state as an agency that is in the business of saving our souls by putting it in judgment of our motives when we ‘choose’ our religion. And finally it is an assault on political expression. Such ordinances assume rightly that many conversions are not ‘religious’ but political or economic. But then that is exactly why conversion needs to be protected. If indeed conversions are political, should not a democracy protect them as legitimate political expressions? Since when can legislatures or courts decide what is the legitimate idiom of political expression?

The Representation of People’s Act is associated with a complicated case history that deserves further exploration.¹ One could give a possible Rawlsian rationale for the act in the following terms: public reason requires us to give up appeals to our own comprehensive doctrines; it is therefore legitimate to exclude appeals to religion from politics. But there are two difficulties with this argument. The first is that – as Upendra Baxi has argued in connection with the RPA – excluding religious appeals is a way of saying that a modern state has no political room for questioning its own foundational presuppositions.

 

 

The second difficulty is more practical. The RPA has the consequence of putting the court in the difficult position of ascertaining the distinction between a religious and a non-religious appeal. The courts have rightly been criticized, in numerous cases, for letting manifest appeals to religion stand by redefining those appeals as appeals to culture or history. The courts have determined that ‘Om’ is not a religious symbol; in Bhairon Singh Shekhawat v. State of Rajasthan, the courts determined that an election speech promising to build a temple at Ayodhya did not involve an appeal to religion.

The grounds on which the court made the determination are of some philosophical interest. The court reasoned, much as Tom Nagel has argued, that in religious matters one cannot make the distinction between my believing something to be true and it being true. But since the claim that there was a Hindu temple at the site of the Babri Masjid in Ayodhya can be historically ascertained, claiming that it should be rebuilt does not involve an appeal to religion.

Or even more notoriously, in the Hindutva cases the court determined that an appeal to Hindutva was not a religious appeal. I do not want to go into a detailed discussion of these cases, but I hope the following points are clear. The function of the RPA has been to in effect give the courts the authority to decide what is religious and what is not; thereby the courts acquire the authority to regulate the meaning of religion. There was much outrage at Justice Verma’s claim in the Hindutva cases that an appeal to Hindutva was not an appeal to religion. Yet very few of the critics went on to ask an even more fundamental question.

 

 

Why have the courts acquired the authority to regulate and fix meanings of terms much as Hobbes enjoined his sovereign to do? Why does the practice of Indian constitutionalism require the state not only to promulgate public purposes but also to fix the meanings of religious doctrines? Given that the courts have been using their power to nominally define religious content in a variety of domains, it should not come as a surprise that they chose to interpret Hindutva in a particular way. After all the advantage of nominalism is, as Hobbes argued, that it allows the sovereign to fix the meaning of terms. I suggest that our investments in giving the courts this authority have complicated roots. But acts such as the RPA have put courts in the position of defining our religion for us.

I think RPA is bad law not because I particularly like religious appeals in politics. But it is bad law because it is unenforceable, it cannot be applied without hypocritical contortions, and it focuses on types of speech ‘religion’ rather than the object of the speech. We already have laws regulating hate speech. The special emphasis on excluding religious speech represents in our discourse not so much a concern with reciprocity and citizenship, but with a colonial construction of religion as the site of destructive passion.

 

 

But the troubling question I wish to raise for those interested in a public sphere constituted by reciprocity, even ‘secular’ values, is this. Can we honestly condemn anti-conversion legislation and not reflect over the assumptions that want us to exclude religion from politics. After all, if we do not want to mix religion and politics and if conversion might be political, why not regulate it? If the exchange of religious speech may be governed by logic of passion and hence needs to be excluded from the public sphere as the RPA assumes, why should not the same argument apply to religious exchange in the context of conversion?

It seems that in India both ‘secular’ and ‘non-secular’ share the fear of unregulated religious exchange, both share the premise that religion cannot be about rational argument, both share the thought that religion impairs the judgment of individuals and hence needs to be regulated to preserve their autonomy, and both have no compunctions in giving the state powers to regulate religious speech.

The issue for us ought to be whether we are capable of freedom or not. Are we capable of restraining ourselves in the face of religious appeals? Can we confront arguments we receive on our own terms? If we think we cannot, it will be difficult to mount a case against anti-conversion legislation. If we think we can, why have we given the state so much power to define the meaning of our religion for us? Alarmingly, it is not just the Hindu nationalists who think we are not capable of managing our freedom.

 

Footnotes:

1. For a scathing critique see V.S. Rekhi, ‘Religion, Politics and Law in Contemporary India’, in Robert Baird (ed.), Religion and Law in Independent India, Manohar, Delhi, 1993.