Appeal Nos
 1511 of 1974
Appeals by certificateSpecial Leave from the Judg ment and Order dated 23 4 1974 of the Madhya Pradesh High Court in Misc
Petition No 13673
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 15971 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 CJC 185 186 and 217 of 1969
Frank Anthony in CA 1489 CrI A 25574 and CA 34676 for the appellant in CAs 1489 and 151174 and Crl
A No 25574 and RR 1 and 2 in CAs 34676
Soli J Sorabiee in CA 1511 Crl
A 25574 1
B Dadac hanji K J John OC Mathur and Ravinder Narain for the appellant in CAs 1489 and 151174 and Crl
A No 25574 and RR 1 and 2 in CAs 34676
Gobind Das In CAs 344 34676 B Parthasarthi for the appellants in CAs 344 34676
Soli J Sorabjee BP Maheshwari and Suresh Sethi for R 3 in CA 34676
Brijbans Kishore BR Sabharwal for RR
in CA 34576
Gobind DasRaj Kumar Mehtafor the Intervener State of Orissa in CA 148974
The Judgment of the Court was delivered by RAY CJ
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 52 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 52 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 52 and 6 of the MP 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 51 and section 52 of the MP Dharma Swatantraya Adhiniyam 1968 amount to testimonial compulsion and therefore the said provisions are violative of Article 203 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 251 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 MP Dharma Swatantraya Adhiniyam 1968 are violative of Article 251 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 251 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 203of 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 301 of the Constitution
But the question of testimonial compulsion within the meaning of Article 203 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 251 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 251 of the Constitution and 2 whether the State Legislatures were competent to enact them  Article 251 of the Constitution reads as follows 251 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 vs 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 1954SCR 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
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 vs The State of Madras1 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 vs State of UP 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 vs State of WeSt Bengala where it has been held that if a thing disturbs the current of the life of the community 1  2  3  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 eg 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
PHP CAs
1489  1511 of 1974 and Cr
A No 255 of 1974 dismissed
344 346 of 1976 allowed


Summary:
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 article 252 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 article 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 vs The State of Bombay  Ors  Ramesh Thappar vs The State of Madras   Ramjilal Modi vs State of UP  and Arun Ghosh vs State of West Bengal   followed
3 If an attempt is made to raise communal passions eg 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 112SCI77 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