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2014 DIGILAW 594 (ORI)

Digbijaya Missal v. State of Orissa

2014-09-15

A.K.RATH, AMITAVA ROY

body2014
Judgment Amitava Roy, C.J. Heard Mr D. Mohapatra, learned counsel for the petitioners and Mr J.P. Patnaik, learned Addl. Govt. Advocate for the opp. party-State. 2. The petitioners here, in the present proceedings, have questioned the vires of Rules 4 and 5 of the Orissa Freedom of Religion Rules, 1989 (for short, hereinafter referred to as “the Rules”) being repugnant to the Constitution of India as well as the Orissa Freedom of Religion Act, 1967 (for short, hereinafter referred to as “the Act”). 3. The petitioner no.1 professes Christianity and the petitioner no.2 claims to be representing the Orissa Minority Forum. According to them, they practise their religion and propagate their religious belief in exercise of their right as enshrined in Article 25 of the Constitution of India. They have contended that the Rules 4 and 5 of the Rules do impinge upon their said right and also those protected by the Act and are thus ultra vires. 4. Learned counsel for the petitioners has insistently argued that the prescriptions of Rules 4 and 5 have the potential of illegally and unjustifiably hindering their fundamental right of freedom of conscience and free profession, practice and propagation of religion and are thus patently unconstitutional. According to the learned counsel, the pre-requisites mandated by Rules 4 and 5 for conversion of one from his/her religion to another are not only uncalled for but also are obstructive and demeaning of one's discretion and desire to embrace another religion of his/her choice and are thus liable to be adjudged ultra vires. 5. Mr Patnaik, learned counsel for the opp. party-State, has urged that the Act and the Rules having been enacted/framed to guard against forcible conversion from one religion to the other, the provisions thereof are fully in accord with the constitutional guarantee embedded in Article 25 of the Constitution of India and thus the challenge is wholly misconceived. 6. We have duly considered the rival points of view. Article 25(1) of the Constitution of India, which constitutes the rhizome of the debate, is extracted herein below: “25. Freedom of conscience and free profession, practice and propagation of religion: (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.” 7. Freedom of conscience and free profession, practice and propagation of religion: (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.” 7. The Act had been legislated to provide for protection against conversion from one religion to another by use of force or by fraudulent means. Section 3 thereof prohibits forcible conversion as contemplated in the preamble of the enactment and Section 4 prescribes the punishment for contravention of this legislative diktat. Rules have been framed in exercise of power under Section 7 of the Act to effectuate the objectives of the Act. Rules 4 and 5 are quoted herein below: “4. Declaration before conversion – Any person intending to convert his religion, shall give a declaration before a Magistrate, 1st Class, having jurisdiction prior to such conversion that he intends to convert his religion on his own will. “5. Intimation of ceremony – (1) The concerned religious priest shall intimate the date, time and place of the ceremony in which conversion shall be made along with the names and addresses of the persons to be converted to the concerned District Magistrates before fifteen days of the said ceremony. (2) The intimation shall be in Form ‘A’ and shall be delivered either personally by the priest, to the concerned District Magistrate or be sent to him by registered post with acknowledgement due. [(3) On receiving the intimation under Sub-rule (2), the District Magistrate shall inform the concerned Superintendent of Police in detail who shall pass on the information to the concerned Police Station and the Officer-in-charge of the Police Station shall ascertain objection, if any, to the proposed conversion by local inquiry and intimate the same to the District Magistrate.]” 8. To start with, the fundamental right contained in Article 25 is not in absolute terms, but subject to the imperatives of public order, morality, health and other provisions of Part-III of the Constitution of India. Sans these exigencies, all persons have been guaranteed in equal terms, the right to freedom of conscience and to profess and practise and propagate religion. To reiterate, the Act had been enacted to secure prohibition of conversion from one religion to another by use of force or inducement on fraudulent means. Sans these exigencies, all persons have been guaranteed in equal terms, the right to freedom of conscience and to profess and practise and propagate religion. To reiterate, the Act had been enacted to secure prohibition of conversion from one religion to another by use of force or inducement on fraudulent means. A bare perusal of Rules 4 and 5 makes it ex facie clear that the preconditions contained therein are unmistakably to achieve the above objectives of the parent legislation and these by no means do constitute an infraction of the fundamental right of freedom of conscience and free profession, practice and propagation of religion as envisaged in Article 25 of the Constitution of India or in repudiation of the legislative intendment of the Act. These steps are legislatively stipulated precautions to ensure that the process of renouncing one religion and adopting another is genuine, voluntary and bona fide, and free from inducement, coercion and fraud. 9. Having regard to the social milieu and the necessitudes of time, the insistence for the procedural requirements as contained in Rules 4 and 5, in our comprehension, can by no means be denounced as illegal and/or unconstitutional. Neither these provisions are incompatible with the scheme and purpose of the Act nor do these in any way intrude upon the regulated right to freedom of religion guaranteed by Article 25 of the Constitution of India. The challenge lacks in substance and is rejected. Dr. A.K. Rath, J. I agree.