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Forced religious conversion: Deceitful exercise to secure conversion, improper: SC

08 Mar 2021

The wilful engagement of a deceitful exercise to secure a conversion from one religion to another is improper, the Supreme Court (SC) held. This was noted by Justice Titus Bodhipala Weerasuriya, Justice Nimal E. Dissanayake, and Justice A. Raja N. Fernando in their Special Determination Numbers 2-22/2004 on the “Prohibition of Forcible Conversion of Religion Bill”. The said Bill had sought to prohibit conversion and proselytising by the use of force, coercion, allurement, fraudulent means, or unethical means. Article 9 of the Constitution holds that the republic shall give to Buddhism the foremost place and that accordingly, it shall be the duty of the State to protect and foster the Buddha Sasana, whilst assuring to all religions the rights granted by Article 10 on the freedom of thought, conscience, and religion including to adopt a religion or belief of one’s choice (which also entails the right to change one's religion/belief) and Article 14(1)(e) on the freedom, either alone or with others, in public or in private, to manifest one’s religion or belief in worship, observance, practice, and teaching. The exercise and operation of Article 14(1)(e) shall, however, be subjected to such restrictions as may be prescribed by the law in the interests of national security, public order, and the protection of public health or morality, or for the purpose of securing due recognition and respect for the rights and freedoms of others, or for meeting the just requirements of the general welfare of a democratic society. Paragraph 9 of the Human Rights Committee’s General Comment Number 22 on Article 18 of the International Covenant on Civil and Political Rights (ICCPR) states that the fact that a religion is recognised as a State religion or that it is established as official or traditional or that its followers comprise the majority of the population shall not result in any impairment of the enjoyment of any of the rights under the ICCPR. While the freedom of thought, conscience, and religion as part of the forum internum (internal dimensions) are “protected unconditionally”, Article 18.3 of the ICCPR permits certain limitations on the freedom to manifest religion (the forum externum). The General Comment No. 22 explains, however, that any restrictions “may be applied only for those purposes for which they were prescribed and must be directly related and proportionate to the specific need on which they are predicated”. The SC held that Article 10 absolutely protects the holding of any religious belief of one's choice, no matter how bizarre or irrational, adding further that the choice stems from the free exercise of one's thought and conscience without any fetter which in any way distorts one's choice. Article 18(2) of the ICCPR states: “No one shall be subject to coercion which would impair his/her freedom to have or to adopt a religion or belief of his/her choice.” The essential ingredient of the offence of allurement (defined in the said Bill as the offer of any temptation in the form of any gift or gratification whether in cash or kind or the grant of any material benefit whether monetary or otherwise or the grant of employment or grant of promotion) as a means of conversion, the SC observed, is the causing of a temptation or an inducement by offering a person some benefit calculated to fascinate him/her or to attract him/her, which may in turn affect his/her decision. A contention by some of the petitioners who challenged the constitutionality of the said Bill was that acts of benevolence and charity in obedience to the gospel command, may be construed as acts of enticement, falling thereby within the definition of allurement. According to the SC, what is improper in this context is the wilful engagement of a deceitful exercise to secure a conversion. Conversion by allurement as a method of improper conversion, specifically the exertion of pressure on people by offering material or social advantage in order to convert into their religion, was discussed in the decision of the European Court of Human Rights in Kokkinakis vs. Greece where a Jehovah’s Witness (follower) was convicted for proselytism when an attempt was made to convert the wife of a cantor of the Orthodox Church by visiting her house to teach their religion. The European Court noted: “First of all, a distinction has to be made between bearing Christian witness and improper proselytism. The former corresponds to true evangelism, which a report drawn up in 1956 under the auspices of the World Council of Churches, describes as an essential mission and a responsibility of every Christian and every church. The latter represents a corruption or a deformation of it. It may, according to the same report, take the form of activities offering material or social advantages with a view to gaining new members for a church or exerting improper pressure on people in distress or in need; it may even entail the use of violence or brainwashing; more generally, it is not compatible with respect for the freedom of thought, conscience, and religion of others.” The use of force was defined in the said Bill as to include a show of force, including threat or harm or injury of any kind or threat of religious displeasure or condemnation of any religion or religious faith. Fraudulent means was defined in the said Bill as to include misrepresentation or any other fraudulent contrivance. The SC observed that Section 169C(2)(b) of the Penal Code, which holds that whoever “induces or attempts to induce a candidate or voter to believe that he or any person in whom he is interested will become or will be rendered an object of divine displeasure or of spiritual censure shall be deemed to interfere with the free exercise of the electoral right of such candidate or voter”, and Section 23 of the Penal Code, which states that a person is said to do a thing fraudulently “if he does that thing with intent to defraud, but not otherwise”, encapsulates the use of force and adoption of fraudulent means as stated in the said Bill. Also, the SC held that the requirement in the Bill that the convert, the facilitator, and the witness to such a ceremony notify the divisional secretary of the fact of the conversion would constitute a restraint on the freedoms under Article 10. Moreover, the SC found that the prescribed purpose of empowering the subject minister to make rules and regulations for the enforcement and the carrying out of the provisions of the Act was overly broad and ambiguous. The SC had in conclusion recommended that since the primary objective of the Bill had been to prevent conversion by the use of force or allurement or by any fraudulent means, it is desirable that the terms “force”, “allurement”, and “fraudulent means” be defined in relation to the primary objective of the Bill. In conclusion, Judge S.K. Martens’ partial dissent in Kokkinakis holds: “To allow States to interfere in the ‘conflict’ implied in proselytising by making proselytising a criminal offence would not only run counter to the strict neutrality which the State is required to maintain in this field, but also create the danger of discrimination when there is one dominant religion.”


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