{
  "bookName": "History of Christianity in India: Source Materials",
  "authorName": "M. K. Kuriakose",
  "publisherName": "Indian Society for Promoting Christian Knowledge",
  "publicationYear": 2011,
  "chapterNumber": 198,
  "chapterName": "1972. High Court Judgement on the Orissa Freedom of Religion Act of 1968",
  "pageFrom": 426,
  "pageTo": 428,
  "pages": [
    {
      "pageNumber": 426,
      "ocrText": "426\nHISTORY OF CHRISTIANITY IN INDIA\n198. HIGH COURT JUDGEMENT ON THE ORISSA\nFREEDOM OF RELIGION ACT OF 1968 (1972 A.D.)\nIn the late 1960s two states, Orissa and Madhya Pradesh, passed\nsimilar legislation severely limiting, in the eyes of most Christians in\nIndia, the constitutional right to freely propagate religion. Acting\nupon a suit filed by certain Protestants and Roman Catholics, the\nOrissa High Court in 1972 declared the Orissa Freedom of Religion\nAct 2 of 1968 to be unconstitutional. Though the High Court ruling\nwas eventually overturned and the Act declared valid by the Supreme\nCourt of India, the judgement of the Orissa High Court, extracts\nof which are reproduced here, makes clear the concerns of Indian\nChristians concerning this type of legislation. The judgement is\npublished in toto in the National Christian Council Review, Vol.\nXCII, No. 12 (December 1972), pp. 499-517.\n7. Sections 2, 3, and 4 are the material provisions of the Act\nwith reference to which the vires thereof is attacked. These are\nthose provisions:\n2. Definitions:\nIn this Act unless the context otherwise requires:\n(a)\n'conversion' means renouncing one religion and adopt-\ning another;\n(b) force' shall include a show of force or a threat of injury\nof any kind including threat of divine discipline or social\nexcommunication;\n(c) 'fraud' shall include misrepresentation or any other\nfraudulent contrivance;\n(d) inducement' shall include the offer of any gift or grati-\nfication, any benefit, either pecuniary or otherwise.\n3. Prohibition of forcible conversion :\nNo person shall convert or attempt to convert, either directly or\notherwise, any person from one religious faith to another by the\nuse of force or by inducement or by any fraudulent means nor shall\nany person abet any such conversion.\n4. Punishment for contravention of the provisions of section 3:\nAny person contravening the provisions contained in section 3\nshall, without prejudice to any civil liability, be punishable with\nimprisonment of either description which may extend to one year\nor with fine which may extend to five thousand rupees or with both;",
      "status": "completed"
    },
    {
      "pageNumber": 427,
      "ocrText": "SOURCE MATERIALS\n427\nProvided that in case the offence is committed in respect of a\nminor, a woman or a person belonging to the Scheduled Castes or\nScheduled Tribes, the punishment shall be imprisonment to the\nextent of two years and fine up to ten thousand rupees.\nSection 5, makes any offence under the Act cognisable and section\n6 makes prosecution conditional upon sanction of the prescribed\nauthority.\nCounsel for the petitioners have conceded during argument that\nChristianity does not approve of force' or 'fraud as methods of\nconversion. It has been indicated in the written note submitted\nby counsel that any conversion obtained by such process is void.\nObjection, however, is raised to the language used in the definition\n'fraud' and 'force'. It is stated that each of these two words,\napart from being common place, has a known connotation having\nbeen used in the Penal Code for over a hundred years. Section 349\nof the Code defines 'force' while section 25 defines 'fraudulently'.\n(e.g. section 366-A and 415 I.P.C.). These words have received\nauthoritative treatment in several judgements of Courts. If the\nimpugned Act intended to prohibit the use of force' or 'fraud\nas methods of conversion, mere reference to the words should have\nbeen enough. On the other hand, by giving extended meaning to\nthe words, interference with the Christian religion has been caused.\nIt is true that 'force' as defined in the Code refers to physical\nforce while the definition under the Act extends the scope. Threat\nof divine displeasure' or 'social excommunication are said to\nconstitute the extension of the concept. The petitioners have\ncontended that people from the down-trodden sections of society\nordinarily take to Christianity as an escape. It is in this background\nthat the legitimacy of the purpose the extension of the definition\n-falls to be determined. Threat of divine displeasure numbs the\nmental faculty; more so of an undeveloped mind and the actions of\nsuch person thereafter are not free and according to conscience.\nSocial excommunication is a serious malady and forces the excom-\nmunicated to live a hazardous life. The extended meaning given\nto the word 'force' does not seek to import anything very foreign\ninto the word inasmuch as the two acts which are now included in\nthe definition fit into the essential concept of the word. Merely\nbecause the Penal Code confines the meaning of the word to bodily\nforce, in our opinion, cannot justify the acceptance of the conten-\ntion advanced before us. Similar is our view with regard to the\nterm 'fraud'. The contention that there is vagueness in the term\n'misrepresentation' does not impress us. As we have already\nsaid, these are not the normal methods adopted for bringing about\nconversion. Again they are tainted and we see no justification\nin the contention that they cannot be prohibited. The intention",
      "status": "completed"
    },
    {
      "pageNumber": 428,
      "ocrText": "428\nHISTORY OF CHRISTIANITY IN INDIA\nof the law is to regulate conduct and we see nothing wrong with a\nlaw which excludes these as not approved conduct.\nWhile we accept that these are sometimes used as methods of\nproselytizing and may be taken as part of Christian religion, yet\nthe restriction is covered by the limitation subject to which the\nright is guaranteed under Article 25 (1).\nWe shall now deal with the argument regarding the definition of\n'inducement'. The attack is mainly on the ground that it is too\nwidely stated and even invoking the blessings of the Lord or to say\nthat 'by His grace your soul shall be elevated' may come within the\nmischief of the term. Learned Government Advocate while\nagreeing that even holding out that an intagible benefit is to come\nmay answer the definition, contends that the intention of the Legis-\nlature is not to transcend the ordinary concept of the term.\nare of the view that the definition is capable of covering some of\nthe methods of proselytising and though the concept of inducement\ncan be a matter referable to morality, the wide definition is indeed\nopen to reasonable objection on the ground that it surpasses the\nfield of morality...\nWe\n12. Our conclusions, therefore, are:\nguarantees propagation of religion and\n(1) Article 25 (1) guaran\nconversion is a part of the Christian religion.\n(2) Prohibition of conversion by 'force' or by 'fraud' as\ndefined by the Act would be covered covered by the limitation subject to\nwhich the right is guaranteed under Article 25 (1).\n(3) The definition of the term 'inducement' is vague and\nmany proselytizing activities may be covered by the definition\nand the restriction in Article 25 (1) cannot be said to cover the wide\ndefinition.\n(4) The State Legislature has no power to enact the impugned\nlegislation which in pith and substance is a law relating to religion.\nEntry No. 1 of either List II or List III does not authorise the\nimpugned legislation.\n(5) Entry 97 of List I applies.\nOn the conclusions, each of these three applications must\nsucceed. We declare that the Act is ultra vires the Constitution\nand direct the issue of a write of mandamus to the opposite party-\nState Government not to give effect to the Act. The four criminal\ncases pending before the Magistrate at Gunupur are hereby quashed.\nWe make no order as to costs.\n(Sd.) R. N. Misra",
      "status": "completed"
    }
  ]
}