*Article* **Religious Freedom and the Limits of Propagation: Conversion in the Constituent Assembly of India**

### **Sarah Claerhout and Jakob De Roover \***

Department of Comparative Science of Cultures, Ghent University, 9000 Ghent, Belgium; sarah.claerhout@ugent.be

**\*** Correspondence: jakob.deroover@ugent.be

Received: 12 December 2018; Accepted: 26 February 2019; Published: 5 March 2019

**Abstract:** In discussions about religious freedom in India, the country's conflict regarding conversion plays a central role. The Constitution's freedom of religion clause, Article 25, grants the right "freely to profess, practise and *propagate* religion," but this has generated a dispute about the meaning of the right 'to propagate' and its relation to the freedom to convert. The recognition of this right is said to be the result of a key debate in the Constituent Assembly of India. To find out which ideas and arguments gave shape to this debate and the resulting religious freedom clause, we turn to the Assembly's deliberations and come to a surprising conclusion: indeed, there was disagreement about conversion among the Assembly members, but this never took the form of a debate. Instead, there was a disconnect between the member's concerns, objections, and comments concerning the draft article on the one hand, and the Assembly's decision about the religious freedom clause on the other. If a key 'debate' took this form, what then could the ongoing dispute concerning conversion in India be about? We first examine some recent historiographical accounts of the Indian conflicts about conversion and proselytization. Then we develop a hypothesis that aims to make sense of this enduring conflict by identifying a blindness at its core: people reasoning against the background of Indian traditions see 'propagation of religion' as the human dissemination of tradition; this is incompatible with a religious conception where conversion and propagation of faith are seen in terms of God's intervention. These two ways of seeing 'propagation' generate two conflicting experiences of the Indian dispute about religious freedom and conversion.

**Keywords:** freedom of religion; conversion; the right to propagate religion; India; Constitution of India; Indian traditions; Christianity

### **1. Introduction**

The issue of religious conversion complicates any discussion about the right to freedom of religion in post-Independence India. Disputes about conversion and religious truth have led to mutual incomprehension between different groups in Indian society for at least two centuries. Over the past decades, calls for restrictions on certain types of conversion have frequently been made in political and legal debate. Several Indian states passed bills banning the use of force, fraud, and allurement in conversion, called 'Freedom of Religion Acts'. This type of legislation has led to concerns about religious intolerance and discrimination against Christian and Muslim minorities: the legal restrictions on conversion are said to threaten the right to freedom of conscience and religion (Ahmad 2018; Coleman 2008; Huff 2009; Jenkins 2008). Others, however, argue that the practice of conversion itself constitutes a violation of the freedom of religion; in their eyes, the attempt to try and convert others to one's own religion involves a violent intrusion into a person's religious life (Dayananda 1999).

Article 25(1) of the Constitution of India of 1950 often makes its appearance in these disputes: "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." Scholars suggest that the Constituent Assembly, the body that drafted the Indian Constitution between 1946 and 1949, decided to include the right to propagate religion among the fundamental rights of India's citizens after a key debate, which ended in a victory for the more liberal-minded Assembly members over Hindu traditionalists who had opposed conversion and the right to propagation of religion (e.g., Josh 2009, p. 101; Jaffrelot 2010, pp. 155–56). According to this account, the Assembly's deliberations led to the recognition of a constitutional right which grants the freedom to propagate *and* convert.

Given the importance attributed to this debate, we will start by raising some questions: What was the nature of the Assembly's deliberations about the right to propagate religion? Why did this constitution-making body decide to add the term 'propagate' to the more common 'profess' and 'practise' in this clause? What were the different standpoints and arguments that gave shape to the debate and how did these lead to the approval of Article 25 and the right to freely propagate religion? The Constituent Assembly took years to draft the Constitution. It is reasonable to expect that this body would formulate and discuss the problems related to religious freedom in India with some care, since its aim was to provide the fundamental principles according to which the Indian nation should be governed. Hence, we turn to the Assembly's records to discover what its members had to say about religious freedom, conversion, and the propagation of religion.

### **2. Propagation and Conversion in the Constituent Assembly**

How was the right to propagate religion introduced into the text of the Indian Constitution? Several earlier documents—such as the *Constitution of India Bill* (1895), *The Commonwealth of India Bill* (1925), *The Nehru Report* (1928), and *Karachi Resolution* (1931)—had recognized religious freedom as a fundamental right that should be part of a new constitution; some mentioned the freedom 'to profess and practise' but none included a right 'to propagate religion'.<sup>1</sup> The only text with a similar formula was a note titled *States and Minorities*, composed by B. R. Ambedkar, the later chairman of the Drafting Committee. It said: "The State shall guarantee to every Indian citizen liberty of conscience and the free exercise of his religion including the right to profess, to preach and to convert within limits compatible with public order and morality" (Ambedkar 1947). Ambedkar submitted this note to the Assembly's Sub-committee on Fundamental Rights in 1947, but it did not play any central role in the drafting of the new Constitution.

Two other preparatory notes served as the starting point for the discussions of the Advisory Committee on Fundamental Rights, Minorities and Tribal and Excluded Areas and its Sub-committee on Fundamental Rights2: one by K. M. Munshi, a member of the Indian National Congress and lawyer, and the other by B. N. Rau, a colonial civil servant and former judge who had been appointed as the Constitutional Advisor. Neither of these mentioned the freedom to propagate religion. In fact, Munshi's initial draft articles concerning the right to religious freedom had sub-clauses that put restrictions on conversion:

(6) No person under the age of eighteen shall be free to change his religious persuasion without the permission of his parent or guardian. (7) Conversion from one religion to another brought about by coercion, undue influence or the offering of material inducement is prohibited and is punishable by the law of the Union. (Rao 2015, p. 76)

<sup>1</sup> These were significant documents, since the members of the Constituent Assembly made use of them for their preparations. For instance, K. M. Munshi in his preparatory note on fundamental rights, referred to *The Nehru Report*, the *Karachi Resolution* and the *Sapru Report* to advocate the inclusion of fundamental rights in the new Constitution (Rao 2015, p. 71)).

<sup>2</sup> On 27 February 1947 this Advisory Committee created five Sub-committees, including one that would deal with Fundamental Rights and another that focused on Minorities.

At the first meeting, the Sub-committee on Fundamental Rights decided to examine Munshi's draft in conjunction with other drafts. His draft clause was adopted with minimal revisions, without any discussion about the phrase "freely to profess and practise religion" (Rao 2015, pp. 116–24). The clause that prevented minors from changing religious persuasion without the permission of the parents or guardian was accepted in a revised form, which now just banned conversion of any person under the age of 18 (Rao 2015, pp. 124–25). All these clauses were included in the draft report of the Sub-committee on Fundamental Rights with minor changes (Rao 2015, p. 140).

Next, the question of fundamental rights was examined by the Sub-committee on Minorities and it is here that the term 'propagate' suddenly made its appearance (Rao 2015, pp. 208–9). From the minutes, it may be noted that a Tamil member educated at the Universities of Oxford and Cambridge, Mariadas Ruthnaswamy, argued "that certain religions, such as Christianity and Islam, were essentially proselytizing religions, and provision should be made to permit them to propagate their faith in accordance with their tenets ... " (Rao 2015, p. 201). No further reasons were offered as to the necessity of such a provision or why it should take the form of a fundamental right to propagate religion.

From the discussion in the Advisory Committee, we know that it was a priority to reach decisions that would fully satisfy the minorities. Its chairman, Vallabhbhai Patel, reminded the Committee members of their task to protect minorities and referred to a discussion in the British Parliament where it had been claimed "on behalf of the British Government that they have a special responsibility—a special obligation—for the protection of the interests of the minorities." "They claim," so the chairman continued, "to have a more special interest than we have." He objected: "It is for us to prove that this is a bogus claim, a false claim, and that nobody can be more interested than us in India in the protection of our minorities." "Our mission," Patel concluded, "is to satisfy every one of them and we hope we shall be able to satisfy every interest and safeguard the interests of all the minorities to their satisfaction" (Rao 2015, pp. 61–66). One could infer from this that the right to propagate religion was introduced to 'fully satisfy' the Christian minority and safeguard its interests, but this is not stated anywhere in the Committee proceedings.

In fact, when the Advisory Committee turned to the religious freedom clause, several members argued that the freedom to 'propagate' was superfluous, since it fell under the freedom of speech and expression. As one member put it: "The propagation of religion is amply assured in clause 10 dealing with freedom of speech and expressions." Moreover, she argued: "Since conversion by force or undue influence only is to be banned, it follows that conversion of an adult to any religion by reason of conviction will be permissible" (Rao 2015, pp. 211–13). Several others agreed that granting the freedom of speech and expression should be sufficient, since 'propagation of religion' was but a specific instance of speech. In response, Ruthnaswamy defended the inclusion of the phrase 'to propagate'—a well-known word, according to him, including "not only preaching but other forms of propaganda made known by modern developments like the use of films, radio, cinemas and other things." Munshi then argued that it was precisely because of this wide-ranging meaning of 'propagation' that he opposed including it in the Constitution: "The word might be brought, I think, to cover even forced conversion." "So far as the 'freedom of speech' is concerned," he suggested, "it carries sufficient authority to cover any kind of preaching." He again stressed the lack of clarity as to the meaning of the term: "If the word 'propaganda' means something more than preaching, you must know what it is and therefore I was opposed to this introduction of the word 'propaganda'" (Rao 2015, pp. 267–68).

The Committee members were unclear as to what 'propagating religion' meant. Several members appeared to equate it to 'doing propaganda' and used the terms as though they were synonyms. The 'propagation of religion' would then become a form of propaganda, like propaganda for any set of ideas or ideologies or social and political movements. In that case, it is but a specific instance of speech already protected by the right to freedom of speech and expression. Ruthnaswamy and Munshi exchanged a few sentences about the meaning of 'propagate' but this did not clarify the meaning of the word in the constitutional clause. Instead of figuring out the nature of the disagreement, the exchange ended as follows:

*Govind Ballabh Pant*: At worst it is redundant and as so many members want it we had better introduce it.

*K. M. Munshi*: It is not a redundant word.

*Chairman*: Let us takes votes on it. Those who are in favour of retaining the word "propagate" may raise their hands. (The amendment was accepted). (Rao 2015, p. 268)

This does not tell us much: the 'arguments' for and against introducing the right to propagate religion were limited to a handful of rudimentary claims that mentioned 'proselytizing religions' and 'propaganda'; the disagreement about the clause was not explored further; consequently, no clarity was created about the points of disagreement to be discussed in the plenary Assembly. It was simply set aside by reducing the question to one of voting for or against retaining a specific word in the Constitution, without knowing what this word 'propagate' meant and what the right would imply.

### *2.1. Conversion as a Fundamental Right?*

The next relevant exchange took place in a plenary meeting of the Constituent Assembly on 1 May 1947, where the Interim Report on Fundamental Rights was to be discussed. Initially, the proposed clause 13, which included the right "freely to profess, practise and propagate religion", was accepted and nothing noteworthy happened during the meeting.<sup>3</sup> However, when Munshi moved an amendment about the conversion of minors, this caused upheaval: "Any conversion from one religion to another of any person brought about by fraud, coercion or undue influence or *of a minor under the age of 18 shall not be recognized by* law" (CAD, 1 May 1947; italics ours).<sup>4</sup> At stake was the second part of this amendment, which would in effect prohibit conversion under the age of 18. Immediately, several members interfered by pointing out that Munshi's amendment implied a negation of the previously endorsed clause on the freedom to propagate.

From the proceedings, however, we cannot get clarity as to what the disagreement was about. Two Christian Assembly members stated that the right to propagate religion had been recognized but would now be taken away by the proviso 'of a minor under the age of 18'. The Anglo-Indian representative Frank Anthony emphasized that "conversion under undue influence, conversion by coercion or conversion by fraud should not be recognized by law." He added: "My community does not propagate. We do not convert, nor are we converted. But I do appreciate how deeply, how passionately millions of Christians feel on this right to propagate their religion." Therefore, Anthony objected to the attempt to restrict this right:

I want to congratulate the major party for having, in spite of its contentious character, retained the words 'right to practise and propagate their religion'. Having done that, I say that after giving with one hand this principal fundamental right a right [sic] which is regarded as perhaps the most fundamental of Christian rights, do not take it away by this proviso, 'or of a minor under the age of 18'. (CAD, 1 May 1947)

To Anthony, the right to propagate was a "principal fundamental right," which would be undermined by adding the amendment about minors: "I say that if you have this particular provision, or if you place an absolute embargo on the conversion of a minor, you will place an embargo absolutely on the right of conversion." He concluded: "You will virtually take away the right to convert." This

<sup>3</sup> Clause 13 read: "All persons are equally entitled to freedom of conscience, and the right freely to profess, practise and propagate religion, subject to public order, morality or health, and to the other provisions of this Part" (CAD, 1 May 1947, Vallabhbhai Patel).

<sup>4</sup> Our references to the Constituent Assembly Debates (CAD) give the date of the discussion and the name of the Assembly member making the intervention. This information allows the reader to consult the relevant records which are available online. We made use of the version on the website of the Lok Sabha, the lower house of the Indian Parliament, via the following direct link: http://164.100.47.194/Loksabha/Debates/cadebadvsearch.aspx. We also consulted the version on a website developed by the Constitutional and Civic Citizenship Project (http://cadindia.clpr.org.in/).

will be the result, because no parent will adopt Christianity when the effect is that of creating a divide between children and parents. Anthony reiterated: "You may have your prejudices against conversion; you may have your prejudices against propagation. But once having allowed it, I plead with you not to cut at the root of family life." He also appreciated the safeguards about undue influence, fraud and coercion and realized "how deeply certain sections of this House feel on this question of conversion." "But," he asked, "having once conceded the right to propagate, to concede this in consonance with the principles of family law and in consonance with the principles of natural law and justice" (CAD, 1 May 1947, Frank R. Anthony).

Another member, the Reverend J. J. M. Nichols-Roy stressed that the amendment would prevent minors from exercising *their own consciences*. Drawing on his own conversion experience at age fifteen, Nichols-Roy argued as follows:

... [T]o think that a youth under the age of eighteen does not have a conscience before God and, therefore, he cannot express his belief is wrong. ... There is a spiritual side in conversion which ought to be taken notice of by this House. Conversion does not mean only that a man changes his form of religion from one religion to another or adopts a different name of religion, such as, a Hindu becomes a Christian. But there is the spiritual aspect of conversion, that is, the connection of the soul of man with God, which must not be overlooked by this House. I know there are those who change their religion being influenced by material considerations, but there are others who are converted being under the influence of spiritual power. When a boy feels that he is called by God to adopt a different faith, no law should prevent him from doing that. (CAD, 1 May 1947)

Emphasizing the spiritual dimension, Nichols-Roy insisted that the amendment about minors was "absolutely wrong," for it "will oppress the consciences of the youths who want to exercise their religious faiths before God." Since the freedom to convert is inherently connected to the relation between the conscience and the spiritual forces of God, Nichols-Roy argued, a law that puts an age limit would be oppressive to the conscience. This implies not only that the freedom to convert should be guaranteed by law, but also that other laws must be subordinated to it: "This freedom I consider to be a Fundamental Right of the youths. No law should be made which will work against good spiritual forces." Nevertheless, Nichols-Roy clearly expressed his objections "against any conversion by undue influence or by fraud or coercion" (CAD, 1 May 1947).

Several elements are significant in these two interventions. Firstly, it is crucial for these members that the fundamental right to propagate religion implies a recognition of the freedom to convert for all persons, including minors. This "is regarded as perhaps the most fundamental of Christian rights." Any attempt to curb the right to propagate religion, by introducing an age limit or similar constraints, amounts to placing an "embargo absolutely on the right of conversion." Secondly, this is clarified by introducing the idea that each human being has a conscience connected to God and each individual can feel that he or she is being called by Him. One should always be free to convert from one religion to the other, if this happens under the influence of spiritual forces. Thirdly, the use of force, fraud and allurement in attempts to convert people is unacceptable and falls outside the boundaries of genuine conversion. But if conversion is a free act of the conscience, then it should not be restricted in any way, for the conscience cannot be oppressed by any law. In this sense, the freedom to propagate and convert is a fundamental and inalienable human right. Finally, Anthony suggests that other Assembly members are inspired by *prejudices* against conversion and propagation. He understands the objections raised against the conversion of minors as a result of preconceived opinion, ignorance or bias about the subject.

These interventions were followed by a long statement by Purushottamdas Tandon, a famous Congress leader and freedom fighter, who claimed to speak on behalf of other Congress members. Tandon voiced his surprise: "Mr. President, I am greatly surprised at the speeches delivered here by our Christian brethren." "Some of them have said that in this Assembly we have admitted the right

of every one to propagate his religion and to convert from one religion to another." This is wrong, he argued:

We Congressmen deem it very improper to convert from one to another religion or to take part in such activities and we are not in favour of this. In our opinion it is absolutely futile to be keen on converting others to one's faith. But it is only at the request of some persons, whom we want to keep with us in our national endeavour that we accept this. Now it is said that they have a right to convert young children to their faith. *What is this?* Really this surprises me very much. (CAD, 1 May 1947)

For Tandon, the right to propagation of religion did not entail a *general* freedom to try to convert others to one's religion. He considered converting others to one's faith as a futile endeavour, which becomes improper when it involves children. Tandon also said that the right to propagate was kept "out of regard for our Christian friends," as a pragmatic step to include the Christians in 'the national endeavour'. He suggested that the Congressmen wanted to carry the Christians along, by accommodating their insistence on the right to propagate (CAD, 1 May 1947). In spite of his surprise, Tandon makes no effort to make sense of what the Christian representatives had said about the right to propagate and convert. In fact, when he and other Congress members intervene, they largely ignore the statements and concerns voiced by Anthony and Nichols-Roy. There is no attempt to find out why these two find the freedom to convert so important and what their claims about the conscience and God mean. Instead, these other members expressed utter astonishment at the claim that the Assembly had recognized a right to convert young children to Christianity.

Tandon used an analogy to clarify the difficulty: "If a boy of eighteen executes a transfer deed in favour of a man for his hut worth only Rs. 100, the transaction is considered unlawful," but "our brethren come forward and say that the boy has *enough sense* to change his religion." This is both improper and unreasonable, in Tandon's eyes: "You can convert a child below eighteen by convincing and persuading him but he is a child of *immature sense* and legally and morally speaking this conversion can never be considered valid" (CAD, 1 May 1947; italics ours). From this perspective, conversion of a child *can only* take place through force, fraud or allurement. Therefore, Tandon could also suggest the following: "It is proper that a boy should be allowed to formally change his religion only when he attains maturity." He did not advocate a general rejection of 'conversion' as the changing of one's religion, since this act is unproblematic once one attains 'maturity'. Countering Anthony's remark that what had been given with the right hand (clause 13) was taken away with the left hand (clause 17), Tandon stressed: "What we gave them with our right hand is that *they have a right to convert others by an appeal to reason and after honestly changing their views and outlook*. The three words, 'coercion', 'fraud' and 'undue influence' are included as provisos and are meant to cover the cases of adult converts" (CAD, 1 May 1947; italics ours). The gap between Nichols-Roy and Tandon is striking: the first assumed that minors, like adults, have an innate conscience that should always be free to respond to God's call; the second emphasized reason or intellect, which needs to be cultivated and formed before individuals can make appropriate decisions about changing religion. But this gap between their respective understanding of 'conversion' is not even noted, let alone debated.

More generally, the participants in this discussion made no attempt to understand or address each other's concerns and arguments. Algu Rai Shastri explained why the conversion of minors was deplorable: "We want such an amendment in this clause of Fundamental Rights that a person who wants to change his religion should be able to do so only after he is convinced through cool deliberation that the new religion is more satisfactory to him than the old one" (CAD, 1 May 1947). Shastri too emphasized that the problem is not the change of religion per se. If a mature person comes to the realization that he wants to change his religion, this is perfectly acceptable, but not for children:

If we permit minors to be transferred like trees on land with the newly embraced religion of their parents, we would be doing an injustice. Many fallacious arguments are offered to permit this. We must not be misled by these. We know that our failure to stop conversion under coercion would result in grave injustice. I have a right to change my religion. I believe in God. If I realize tomorrow that God is a farce and an aberration of human mind then I can become an atheist. *If I think that the Hindu faith is false, I, with my grey hair, my fallen teeth and ripe age, and my mature discretion can change my religion. But if my minor child repeats what I say, are you going to allow him also a right to change his religion (at that age*)? (CAD, 1 May 1947, Algu Rai Shastri; italics ours)

Again, the suggestion is that citizens should be allowed to convert, only if this happens after 'cool' deliberation and reasoning. The idea that conversion is a question of 'cool deliberation' and 'mature discretion' is far away from the Christian conception of this process as a response of the conscience to God's spiritual forces, which had come to the surface in Nichols-Roy's intervention. Even though Shastri stressed how absurd it would be for him to give a minor a right to change religions, he did not pause to think about why this was not absurd at all to his Christian colleagues.

Yet another Assembly member, Jagat Narain Lal, pointed out that the right to propagate had not been included to such an extent in the Constitution of any other country: "My submission is that this House has gone to the farthest limit possible with regard to minorities, knowing well the fact that there are a few minorities in this country whose right to carry on propaganda extends to the point of creating various difficulties." Lal supported Tandon's standpoint that the inclusion of this "right to do propaganda" is a concession towards the Christians, granted in spite of the fact that "most of the Congress members of this House" did not want to keep this right. "The fact is that we desire to make the minorities feel that the rights which they had been enjoying till now shall be allowed to continue within reasonable limits by the majority. We have no desire to curtail them in any way. But we do not concede the right to do propaganda" (CAD, 1 May 1947). The recognition of this fundamental right is about having the minorities *feel* that they will continue to enjoy the same rights but *within reasonable limits*. The language use again suggests that the right to propagate religion is equivalent to the right to 'do propaganda'. For the Christian members, however, the right to propagate religion clearly meant something very different, since it is rooted in the relationship between the conscience and God.

The different participants in this exchange agreed about banning the use of fraud, coercion or undue influence in conversion; they also admitted that changing between religions should be possible. What was the problem then? Some interventions emphasized the freedom of conscience of minors. Others reflected concerns about mass conversions or about the status of children whose parents have converted. Yet others stressed that children are too immature to make decisions about changing from one religion to another. We also know that there were worries about the impact of Christian schools and their attempts to convert Hindu children, or about the minorities and their position in post-Independence India. Judging from the reports, however, it is unclear what exactly was at stake, beyond the fact that the Assembly members disagreed about the conversion of minors.

This intense disagreement stands in contrast to the way in which the exchange about Munshi's amendment was brought to an end. Ignoring the above interventions, the discussion was ended by Ambedkar, who intervened and asked Munshi to drop the amendment. The gist of Ambedkar's argument was that this clause would end up forcing parents to be separated from their children merely because they adopted another religion. He did not clarify how the amendment could be modified to avoid this, but only made a mysterious reference to the 'several Assembly committees' that had already dealt with this issue. He then rejected the proposition, because it "would lead to many disruptions, to so many evil consequences" (CAD, 1 May 1947). In other words, Ambedkar announced that the amendment should be rejected without addressing any of the objections. Consequently, it was decided to refer clause 17 back to the Advisory Committee on Fundamental Rights and Minorities, which eventually rejected it.

### *2.2. What Is Propagation?*

When the Assembly discussed the religious freedom clause once more in December 1948, the use of the word 'propagate' generated more discontent and confusion; hence, several members moved amendments to remove the term or revise the clause. However, rather than being a debate about the disagreements and the proposed amendments, the meeting took the form of a seemingly random sequence of statements of opinion by Assembly members, who neglected to respond to each other and eventually did not even defend their own objections to the clause.

Tajamul Hussain, a Muslim representative, suggested replacing the words "practise and propagate religion" by "practise religion privately." "Why should you interfere with my religion," he asked, "and why should I interfere with your religion?"

Supposing I honestly believe that I will attain salvation according to my way of thinking, and according to my religion, and you Sir, honestly believe that you will attain salvation according to your way, then why should I ask you to attain salvation according to my way, or why should you ask me to attain salvation according to your way? (CAD, 3 December 1948)

If we accept this proposition, he asked, then "why propagate religion?" "Do not demonstrate it for the sake of propagating," he continued: "Do not show to the people that this is your religion for the sake of showing." Hussain's conclusion was clear: "If you start propagating religion in this country, you will become a nuisance to others. So far it has become a nuisance" (CAD, 3 December 1948). Clearly, this Indian Muslim shared the objections against granting a constitutional right to propagate religion and found interfering with the religions of others objectionable.

Several Assembly members moved other amendments to curb the right to propagate. The socialist K.T. Shah argued for a prohibition against propagation of religion in educational institutions, asylums and hospitals, institutions for the elderly, etc. What one should recognize is "the right that anybody professing any particular form of belief should be at liberty, in this Liberal State, to place the benefits or beauties of his particular form of worship before others." But conversion can only happen after mature consideration, which is impossible for children, people of unsound mind, etc. Shah wanted to make sure that "minds not quite free from other influences, minds suffering from some kind of handicap, shall not be unduly influenced." This provision was necessary, according to him, to prevent abuse of the freedom to propagate. As he put it, this was a question of decency: "When you meet at a social gathering or congregational union this much decency should be observed that you shall not carry on your influence in an undue manner, but only rely upon the convincing character of your arguments" (CAD, 3 December 1948). Again, we note the emphasis put on the role of the intellect and reason in deciding about religion and conversion.

The Assam delegate Rohini Kumar Chaudhari contributed by stating that he had no objection to the propagation of any religion: "If anyone thinks that his religion is something ennobling and that it is his duty to ask others to follow that religion, he is welcome to do so." But, he continued, "what I would object to is that there is no provision in this Constitution to prevent the so-called propagandist of his religion from throwing mud at some other religion." 'Throwing mud' referred to the fact that missionaries had gone around the country and "described Sri Krishna in the most abominable terms" and decried the worship of idols and called them names. According to Chaudhari, it made no sense for followers of one specific religion to denigrate another simply because it had unsatisfactory features. More objections to the right to propagate religion were voiced by Lokanath Misra, who called the religious freedom clause, then Article 19, "a Charter for Hindu enslavement" (CAD, 3 December 1948). In his eyes, the introduction of this right created a great danger: on the one hand, the Constitution was "tabooing religion" in the sense that the secular state would by-pass the ancient culture of the land; on the other hand, it showed the "unjust generosity" of making propagation of religion a fundamental right. Together, this could only "mean paving the way for the complete annihilation of Hindu culture, the Hindu way of life and manners." Like others before him, Misra concluded with a plea to drop the word 'propagate' (CAD, 6 December 1948).

Each of these interventions was largely disconnected from the others; only very rarely did members address the statements made by their fellow members. The meeting meanders between speeches about the survival of the Hindu religion, the place of religion in educational institutes and hospitals, the meaning of 'secularism', 'religion' and 'dharma', etc. In other words, the Constituent Assembly 'debates' about the fundamental right to religious freedom show an absence of debate. Again, all the interventions and amendments concerning the clause were ignored in the drafting of the Constitution. In fact, when the Vice-President concluded the debate, he called upon Ambedkar to reply to the amendments in his role as the chair of the Drafting Committee. Ambedkar said he had nothing to add to the speakers who spoke in support of this article and that he was prepared to accept only one amendment (CAD, 6 December 1948). A member was dissatisfied: "May I ask whether it will be enough if Dr. Ambedkar says: 'I oppose: I have nothing to say'. I should think that in fairness to the House, he should reply to the points raised in the amendments and during the debate" (CAD, 6 December 1948, H. V. Kamath). The Vice-President replied: "I am afraid we cannot compel Dr. Ambedkar to give reasons for rejecting the various amendments." With this, the debate came to an end, all amendments excepting one were rejected, and the right to propagate religion was incorporated into Article 25 of the Constitution.

Ambedkar's role epitomizes the nature of these exchanges in the Constituent Assembly. As the chair of the Drafting Committee, he had no special power to decide about the fate of amendments in the plenary Assembly. Still, his choosing to accept or reject amendments to the religious freedom clause ended up playing a decisive role. He refused to give reasons for rejecting the proposed amendments and ignored whatever had been said by his fellow Assembly members in favor of the amendments. Yet, these members did not attempt to intervene or defend their objections to this clause on the freedom of religion. Once they had to vote about the constitutional clause and the amendments, they appeared to become indifferent to their own objections and concerns. As a result, the Assembly's vote simply followed Ambedkar's dictate.

Moreover, even though many of the interventions revealed ignorance about the right to religious freedom, conversion, and the meaning of 'propagation of religion', the Assembly never called upon any experts, available scholarship, or background information to clarify the issues at hand. Consequently, at the end of the discussion, it remained equally unclear as before as to what the relation was between the right to propagate religion and the freedom to convert, what 'propagating' religion meant, and how the dispute about religious conversion should be made sense of. To conclude, the Assembly's sessions did not consist of a reasonable debate which could lead to justified decisions about the content of the constitutional religious freedom clause. Instead, in a matter as significant as the right to freedom of religion, there was a major disconnect between the utterances and concerns of the Assembly members on the one hand, and the eventual decisions about the clause that would become Article 25 of the Constitution on the other.

### **3. Historiographical Accounts**

How can we make sense of the Constituent Assembly's debates about the right to profess, practice, and propagate religion? We could turn to the wide range of scholarship on religious conversion and proselytization in India. Most of this scholarship consists of historical, descriptive, and anthropological works (e.g., Harding 2008; Heredia 2007; Roberts 2016; Robinson and Clarke 2003). Some authors address the conflicts related to conversion, proselytism, and religious freedom in India (Adcock 2014; Bauman 2015; Osuri 2013; Sarkar 2007; Viswanathan 1998); a few works also examine the relevant debates in the Constituent Assembly (Josh 2009; Kim 2003). What the historiographical accounts have in common is that they focus on the decades preceding the Indian Independence of 1947 to explain the disputes that occurred in the Constituent Assembly and afterwards, that is, they connect the controversies about conversion and propagation of religion in post-Independence India to a set of historically specific concerns and discourses which emerged from the events and developments of the late colonial period.

Consider one such historiographical account. In her *Limits of Tolerance* (Adcock 2014), C. S. Adcock explains the distrust towards conversion and proselytization in contemporary India in terms of a distinctive Indian ideal of "Tolerance," which was central to the Gandhian tradition and became

a commonplace of Indian secularism. This ideal rests on a distinction between "proselytizing" and "non-proselytizing" religions and is critical of "proselytizing religion" because of its alleged intolerance stemming from dogmatic and exclusive truth claims. Adcock claims that the "Tolerance" discourse builds on this distinction to develop a specific critique of religious freedom; it suggests that recognizing the freedom to convert and proselytize as a part of the right to religious freedom privileges "proselytizing religions" and is unsuited to the Indian cultural context. This ideal of "Tolerance" should not be viewed as a timeless Hindu attitude, she argues, since it emerged from specific historical and political conditions, such as the disputes about the *shuddhi* movement of the Arya Samaj (a Hindu reform movement which sought to convert Muslims and others to 'the pure and eternal religion of the Vedas') and its Islamic counterpart of *tabligh* during the 1920s and 1930s. Moreover, this discourse drew upon the conceptual vocabulary developed by the comparative study of religion in Britain and Europe (Adcock 2014). Continuing along the lines of Adcock's argument, one could suggest that the participants in the Constituent Assembly debates were the heirs to this historically specific set of discourses about conversion, which had emerged from the interreligious polemics in British India (involving organizations such as the Arya Samaj, Tablighi Jamat, the Society for the Propagation of Christian Knowledge, etc.) and borrowed from British colonial law and politics and the language of European comparative religion. In brief, the disputes about conversion and proselytization in the Assembly were shaped by historically specific ideas and events that unfolded during the first half of the 20th century.

This type of account is home to basic problems. For one, the specific vocabulary used by some members of the Constituent Assembly undoubtedly borrowed from the discourse of the Gandhian political tradition and from verbiage popular in the 'interreligious' polemics of earlier decades; some of these terms and phrases also originated in the comparative study of religion in Europe. However, the relevant Assembly members used this English-language vocabulary to try and articulate particular concerns and stances which were already visible from the early 18th century. Moreover, several members also used a different conceptual vocabulary that cannot be attributed to late colonial interreligious polemics or the discourse about "Tolerance." In fact, as we have shown elsewhere, the conflicts about conversion in India show recurring concerns, patterns, and clusters of ideas that have surfaced again and again from the early modern period to contemporary disputes (Claerhout and De Roover 2005, 2008).

On the one hand, Christian Assembly members drew upon centuries of conceptual developments within Christian theology when they invoked the oppression of the conscience, the connection between the soul and God, and spiritual forces working upon the individual as factors central to the process of conversion. Naturally, Christian thinking concerning conversion has shown discontinuities, shifts, and distinct conceptual elaborations from the early middle ages until today. Nevertheless, it does reveal a central set of concerns and concepts that recur over and over again. For instance, the question of whether the conscience should always be free and forced conversion ought to be off limits; the nature and steps of the process whereby the individual believer can turn towards Christ, submit to God, and find spiritual freedom; the way in which conversion depends on the workings of the Holy Spirit rather than on human effort; etc. For more than fifteen centuries, the process of conversion and its relation to the spreading of Christian religion has been one of the major concerns of Christians from different denominations, eras, and regions.5 That terms such as 'proselytization' and 'religious freedom' were introduced only at a particular point in time to conceptualize dimensions of this process cannot deny the recurrent patterns in Christian reasoning and practices related to conversion.

On the other hand, the interventions of the Assembly members with a background in the Hindu traditions reflected stances and concerns that had been expressed regularly in the period from the late

<sup>5</sup> From the vast literature on the process of conversion, see: (Armstrong and Wood 2000; Citron 1951; Harran 1983; Morrison 1992; Muldoon 1997; Tellenbach 1991; Wicks 1992).

17th century to the mid 19th century: the incomprehension towards the idea that one 'religion' could be 'true' and all others 'false'; the refusal to accept that religions are engaged in rivalry over this type of truth; the belief that people should continue to follow the 'ancient' traditions of their forefathers; the claim that attempts to convert people from one religion to another are futile and inappropriate; the aversion towards Christian missionaries' harangues about the 'false' gods and idolatry of the Hindus; etc. These issues were already visible in the early 18th-century reports of encounters between the Protestant missionary Bartholomäus Ziegenbalg and the 'Malabarian Brahmins' he addressed (Ziegenbalg 1719; Grafe 1972); they surface explicitly in late 18th-century and 19th-century debates between British officials and missionaries and Hindu pundits and others (Young 1981; Ali 1965). What is perhaps most striking throughout these encounters is the incomprehension on both sides; participants with a background in the Hindu traditions use the relevant vocabulary in ways very different from the language use of Western Christians and some of their Indian converts; this regularly leads to a breakdown of the conversation (Claerhout and De Roover 2005). Clearly, these recurring patterns in the conflicts about conversion cannot be attributed to a set of historically specific discourses that emerged in the first half of the 20th century. The continuity of these underlying patterns is not denied by the fact that concerns and ideas were at times articulated with new vocabulary.

Another difficulty becomes apparent when we juxtapose different historical studies concerning the tensions about conversion in India. These studies relate the conflicts to a variety of factors: Christian efforts to convert Dalits and Hindu (nationalist and upper-caste) resistance against these efforts; the historical interrelations between Hindu reform, colonial policies, cultural nationalism, concerns about minorities and their interests, mass conversion movements among the 'oppressed', etc.; the emerging Hindutva ideology ('soft' and 'hard') and the opposition by religious minorities and secularists against its claims; the fear of losing one's Hindu identity and resentment against Christian conversion as a symbol of colonial oppression; the articulation of a distinct Indian form of secularism (e.g., Bauman 2008; Chatterjee 2011; Harding 2008; Jaffrelot 2010, pp. 155–56; Josh 2009; Kim 2003; Tejani 2008). But how does one determine which among all of these factors gave shape to the post-Independence conflicts about religious conversion in India and what their respective role was?

One can point to many sets of events and discourses that preceded the Constituent Assembly and claim that these played some 'decisive' role in giving shape to the arguments of its members. But what would count as evidence for the claim that one set of factors (rather than other factors) was crucial in determining the positions and stances of these members? Of course, one could also argue that the discourses about religious freedom, conversion, and the right to propagate in the Assembly were constituted by the interplay among all of the above-mentioned factors. Thus, one ends up with Herbert Butterfield's conclusion that "the only safe piece of causation that a historian can put his hand on, the only thing which he can positively assert about the relationship between past and present" is the following: "It is nothing less than the whole of the past, with its complexity of movement, its entanglement of issues, and its intricate interactions, which produced the whole of the complex present" (Butterfield 1965, p. 19).

A third problem is the manner in which some of these accounts go about with the text of the Constituent Assembly debates. Rather than examining what its members said about the question of conversion and propagation and trying to make sense of their statements, scholars attribute positions and sentiments to these members which are not apparent from the interventions in the Assembly. Thus, Sebastian Kim explains the Constituent Assembly's disagreement as follows:

For Hindus, Hindu culture and tradition were such an integral part of their identity that religious conversion meant changing one's heritage and thus losing one's identity. It went against the tradition of 'social, moral and religious order', established by dharma (*CAD* Vol. 7:824–26). While Christians feared that the majority Hindus would use their social and political power to suppress conversion, Hindus resented the fact that Christians were determined to have their way over the right of conversion, which they saw as a symbol of colonial oppression. (Kim 2003, p. 58)

Surprisingly, in the report of the session that Kim refers to, the claim that religious conversion went against the social, moral, and religious order established by dharma is nowhere to be found. One member just argues that the state should not identify with any specific religion, but that *dharma* does have something to contribute to the welfare of the world. In other words, Kim's interpretation not only postulates claims that are absent from the debate, but also speculates about a 'resentment' that supposedly motivates these members but which is not explicitly present in their interventions.

Similarly, Christophe Jaffrelot says the following about the debate in the Assembly: "The word 'propagate' was here a euphemism for 'proselytizing activity' and even 'conversion', terms whose emotional charge was too great" (Jaffrelot 2010, p. 155). In other words, the right to 'propagate' was inserted into the Constitution because some members had 'emotional' objections to two other words, even though these objections were not stated explicitly. Jaffrelot focuses on one intervention by Lokanath Misra, a Congress representative from Orissa, who called the Constitution "a Charter for Hindu enslavement" and objected to recognizing propagation of religion as an inalienable right (CAD, 3 December 1948, Lokanath Misra). In so doing, he ignores dozens of very different interventions equally critical of the right to propagate, but still insists that Misra's "speech" was "a good reflection of the thinking of Congress traditionalists and even of Hindu nationalists" (Jaffrelot 2010, p. 156). Thus, in today's academic study of India, it has become common to claim that the insertion of 'propagate' into Article 25 counted as a victory for the liberal forces and a defeat of Hindu traditionalists and nationalists. In the words of the historian Bhagwan Josh:

The debate in the Assembly revealed two broad ideological tendencies. On one side were those Congressmen who were, like the Hindu Mahasabha and Rashtriya Swajamsevak Sangh (RSS), opposed to the very idea of conversion and therefore did not want the word 'propagate' to be included within the Fundamental Rights. The other comprised those who were more liberal minded, aware of new developments in world public opinion and not opposed to the idea of conversion as such. But they understood it as pertaining to an 'individual' conversion. (Josh 2009, p. 101)

Finally, Josh claims that "the idea of conversion was included in the Constitution as a fundamental right despite the resistance exerted by anti-Christian forces" (Josh 2009, p. 101). Now, several members of the Assembly indeed expressed reservations vis-à-vis the constitutional recognition of a general right to convert. However, this group did not consist of Hindu nationalist and anti-Christian forces, but of people with different backgrounds: Congress members from various Hindu and other Indian traditions, a Muslim representative (Tajamul Hussain) and a secularist socialist (K. T. Shah). They argued for specific restrictions on the right to propagate religion; for instance, they objected to the converting of minors and other vulnerable groups or to the reviling of other traditions. These members were not opposed to "the idea of conversion as such," since they agreed that changing from one religion to another should always remain possible for adults, and many insisted that the right to propagate should be included in the Constitution as a concession to the Christian minority. Moreover, the advocates of a universal right to conversion in the Assembly were not "liberal minded" cosmopolitans. They were Christians, inspired by religious concerns about the relation between the conscience and God and the fundamental right to religious freedom. Hence, Josh's account superimposes a contemporary explanatory template—namely, the representation of Indian politics as an ideological struggle between Hindu nationalists and liberal minded secularists—onto a debate that occurred in the 1940s.

### **4. Making Sense of the Conversion Conflict**

To gain insight into the disagreements in the Constituent Assembly, we aim to elucidate some of the recurring patterns in the Indian conflicts about conversion. From the beginning of the Independence struggle, it had been stated that the right to freedom of religion would be crucial in India given the country's religious diversity. Since conversion had long been a sensitive issue, the Constituent Assembly would need to address this in its deliberations about the constitutional clause on the freedom of religion. It failed to do so. As a result, religious conversion continued to generate conflict in India for decades to come, while the constitutional right to 'propagate religion' only added to this conflict. Consider the Supreme Court's landmark decision in the case of *Rev. Stainislaus v. State of Madhya Pradesh* (1977). Here, the Court cited a dictionary definition of 'propagate' as "to transmit or spread from person to person or from place to place" and concluded:

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 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 on the "freedom of conscience" guaranteed to all the citizens of the country alike. [1977 AIR 908/SCR (2) 611]

In other words, aiming to convert others to one's own religion constitutes an infringement of the freedom of conscience. Hence, according to the Supreme Court, the right to propagate religion cannot entail a right to convert other persons to one's own religion, but only allows one to transmit a religion by the exposition of its tenets. Predictably, this judgment caused further conflict, since it ignored the fact that certain groups in Indian society understood the freedom of conscience and the right to propagate religion very differently. Thus, two scholars have recently submitted that "the right to convert was actually included in Article 25, and, as such, the decision of the Supreme Court in *Stainislaus* was not only erroneous, but also led to instability in society, as Indian Christians feel they have been cheated in this matter" (Mustafa and Sohi 2017, pp. 942–43). In several ways, the ongoing disputes about conversion in India are similar to the 'debate' in the Constituent Assembly: there is strong—sometimes violent—disagreement about issues related to conversion and the propagation of religion; still, it remains unclear what the disagreement is about, what is at stake, what the conflicting positions are, and why the different parties are so emotionally involved in the issue.

Clearly, a new hypothesis is needed to begin to make sense of the Indian disputes about conversion, religious freedom, and the right to propagate religion. This hypothesis should take into account that similar discussions about questions of conversion and religious truth had been going on for more than two centuries in India before the Constituent Assembly took up this matter. In this section, we will take the first steps towards building such a hypothesis. We look at some dimensions of the dispute to develop an analysis that should also throw light upon the concerns and utterances of the Assembly members. That is, the challenge for this hypothesis is to make sense of the many disparate statements made in the Assembly and in other forums such as the Supreme Court. It should also allow us to come to some predictions about the dynamics of this conflict in India.6

### *4.1. A First Approximation*

In India, the constitutional right to propagate religion has a conflict at its heart, which came to the surface in the disagreement about the conversion of minors in the Constituent Assembly. When the phrase 'to propagate religion' was introduced into the religious freedom clause, its primary reference was to Christian practices of conversion and proselytizing. In India, as elsewhere, Christians had used the word 'propagate' in relation to religion, as in 'propagation of the Gospel' or 'the propagation of

<sup>6</sup> In today's scholarly landscape, any hypothesis that seeks to account for the Indian conflicts about conversion by conceptualizing their recurring patterns faces a risk: the charge of being 'essentialist' and 'essentializing' Christianity or the Hindu traditions. To avoid going into philosophical discussions about 'essentialism', we just wish to note the following: recognizing continuity is the precondition for describing discontinuities; that is, one is compelled to accept that there are phenomena such as Christian religion or the Hindu traditions, which show certain patterns and characteristics, in order to be able to speak about the internal diversity, plurality, and historical changes and shifts within these phenomena.

faith'. When non-Christian Assembly members adopted the term, they initially had Christian practices in mind, for they considered the recognition of the right to 'propagate' as a concession to this minority.

The reason as to why 'propagate' was used instead of 'convert' or 'proselytize' is not of great significance to our argument: it might indicate an attempt to use more neutral and less contested wording, or it may be a coincidence. Yet, the consequences of this language usage are crucial: the inclusion of the term 'propagate religion' allowed for several conflicting understandings of the meaning and implications of the right to religious freedom. Initially, the fact that the different participants in the discussion used the same terminology led to the assumption that they were referring to the same set of phenomena when they spoke of the 'propagation of religion'. However, the situation changed when Christian representatives began to argue that the freedom to convert should be extended to minors and human beings in general as an inalienable right. This caused astonishment and surprise among other members. Suddenly, it appeared that 'the right to propagate religion' meant something different to these Christians than it did to the others.

We propose that the Assembly members who objected to conversion of minors had a shared understanding of the right to propagate which remained implicit and vague in their reasoning. Some indications are given by the fact that they referred to conversion as a Christian *practice* and suggested that the constitutional right to propagate simply allowed this minority to continue its practice. When these members looked at Christian practices of conversion, they saw these as this particular community's way of disseminating or spreading its religion. Therefore, the freedom to propagate religion should merely permit the Christian minority to continue this practice.

However, several members argued that the right to 'propagate' was intended for other communities also. One representative pointed out that Hindus should also educate their people "on religious tenets and doctrines" (CAD, 6 December 1948, L. Krishnaswami Bharathi). Another suggested that the Hindus and the Arya Samaj should be able to carry on their 'propaganda', much like Christians, Muslims, Jains, and Buddhists (CAD, 6 December 1948, Shri T.T. Krishnamachari). Yet another said that the freedom to propagate religion would allow any citizen "to place the benefits or beauties of his particular form of worship before others" (CAD, 3 December 1948, K. T. Shah). Thus, these speakers explained that 'propagation' also encompassed certain practices of different religions and traditions in India. The propagation of religion was not a practice unique to the Christians, but referred to a more general category of practices shared across religions. It involved educating people on the tenets and doctrines of their religion and showing others how beneficial or beautiful one's religion and its practices are; roughly then, propagation was understood as the dissemination of a religion.

The many traditions that existed on the Indian subcontinent had a variety of ways of disseminating and sharing their ideas, stories, and practices. Among the various Hindu, Jain, Sikh, and Buddhist groups in India, this could take several forms in the first half of the twentieth century: public events like festivities and processions, including amplified speeches and music; education in traditional schools; swamis giving lectures and gurus instructing pupils; teaching Sanskrit slokas to children; debates between representatives of different traditions to demonstrate which is better than the other; distributing pamphlets and copies of books; etcetera. For Assembly members who hailed from such traditions, these practices must have been familiar. We propose that they shared an intuitive categorization, however rough or fuzzy, that encompassed this type of practices.

From this perspective, Christian conversion and proselytizing become instances of this wide range of practices. These Christian practices may have some peculiar and objectionable aspects, but they happen to be the practices whereby Christians disseminate their religion and spread its tenets. Consequently, when the term 'propagation of religion' was adopted by these Assembly members, they were referring to Christian practices of 'propagation' *as instances of this intuitive category of dissemination of religions.* That is to say, they *saw* these practices in terms of characteristics that appeared to be shared with the aforementioned practices from various Indian traditions. They attributed certain salient features to the practices in question, which allowed them to recognize all these practices as instances of a category now referred to with the term 'propagation of religion'.

As a first approximation, then, 'propagation' was understood by the majority of the Assembly members (and later by the Supreme Court judges) as the *dissemination of a religion and education concerning its tenets and practices*. The right to freely propagate religion entailed that the Christian minority should be free to engage in such practices, even if its specific form of propagation ('conversion') involved certain aspects which antagonized people from other communities.

### *4.2. A Second Approximation*

All of this generates a basic problem: for Christians, this way of seeing conversion cannot possibly comprehend the nature of this process and the related practices of propagating religion. Naturally, these *also* involve sharing Christianity's 'message' through preaching and distributing pamphlets and bibles, holding public events like festivities, lectures and processions, and trying to persuade others of the value of this religion. But these are only secondary aspects of conversion. What are its primary characteristics then?

Consider the following set of claims: the God of the Bible, who is the sovereign Creator of the universe, has revealed his will in Scripture, which is his Word and not a doctrine of human origin. Therefore, propagating the Gospel is a question of spreading God's Word, rather than teaching any human idea, message, or doctrine. Being taught Christian doctrine may help a potential convert, but ultimately, the process of conversion depends upon the intervention of the biblical God into the human soul and conscience. Rather than any human practice of dissemination, it revolves around the Holy Spirit's working upon the soul because of which the sinner embarks on a process of turning to the one true God. Conversion is not a question of accepting some set of doctrines, but of submitting one's own will to God's will. Maximally, human practices can contribute to preparing people for this process—by creating 'a fertile soil', so to speak—but it is fundamentally dependent on his divine grace. Among other things, this preparation consists of creating the conditions that allow people freely to convert and respond to God's call.

While Christian groups and thinkers have conceptualized the process of conversion in many distinct ways throughout the two-thousand years of Christian history, several characteristics attributed to it have kept reoccurring: the primordial role of God in the process, the need for freedom of conscience, the restrictions on forced conversion, the limited role played by human reason and human works in the process, etc. Even if we allow for disagreement on some points, there is a simple consequence: Christian conversion *cannot be* a sub-set of the practices that come under the intuitive category of 'propagation of religion' held by others. For the Christian representatives who intervened in the debate, the right to propagate religion was *not* equivalent to the freedom to disseminate and share their traditions, tenets and practices. It was an essential right that should protect the conditions under which the soul can freely respond to God's call and to the work of the Holy Spirit, without being constrained by human fetters. 'Conversion' here could never just refer to the practices of dissemination that happen to be specific to the Christians.

In other words, for Christians, conversion is fundamentally different from any *human* practices of dissemination, since its essential dimension is *the biblical God's intervention* in the human soul and conscience and his revelation in his Word. This is why the freedom of conscience and the right to 'propagate religion' always entail the freedom to convert, and why this is "perhaps the most fundamental of Christian rights," as Frank Anthony put it (CAD, 1 May 1947). Within this framework, constraining the freedom of conversion amounts to human beings attempting to put legal and political restrictions on God's work.

### *4.3. Blindness on Both Sides*

These two groups in the Constituent Assembly, and in Indian society more generally, *see different things*, when they look at the phenomena to which they refer as 'propagation of religion'. Both operate with a set of background ideas that have them perceive certain salient features in these phenomena. But the two ways of seeing 'propagation' are incompatible. One group sees a range of human practices

of disseminating traditions, within which Christian practices of conversion have a place. The other group would also recognize such a category, but Christian conversion is of a different order and cannot fit along the same range. In both cases, human beings are involved, who 'preach', teach, and discuss about ideas and practices. However, because conversion ultimately embodies the biblical God's intervention, this process and the related practices make up a distinct and unique category. As a consequence, to incorporate conversion into this general set of practices of 'propagating religion' entails a denial of the core nature of this process as Christianity conceives of it.

Because of this, the two groups inevitably understand propagation of religion very differently, and use the relevant terms ('propagate', 'conversion', 'religion', 'freedom' ... ) in distinct and often incompatible ways. But this incompatibility generally remains invisible to the two parties, as it does to today's readers of these disputes, because the speakers assume that they are talking about the same things when they discuss the freedom to 'propagate religion'. It is only at certain *points of rupture* that the conflict suddenly becomes visible at surface level. When this happens, both groups feel misunderstood and claim the other group is inspired by prejudices. In the Constituent Assembly's exchanges about the right to propagate religion, we are witness to such moments of rupture. Most prominently, the implicit conflict of views as to the nature of propagating religion becomes explicit in the disagreement about the conversion of minors and the age of discretion.

If religious conversion is an instance of the category of practices involved in the human dissemination of 'religions', then it should stay within the limits of reason and ethics that apply to all such practices. The conversion of minors and the mentally disabled self-evidently violates these limits: it is both unreasonable and unethical, when this is what 'propagation of religion' means. It is unreasonable, as several Assembly members argued, because a child does not yet have the maturity, capacities, and experience required to determine the relative value of 'religions' and choose between them on reasonable grounds. His or her intellect and reason have not yet been sufficiently formed and cultivated. The converting of minors is also unethical because it generally involves a disruption of family life, the misleading of 'gullible' youth, and tearing up the social fabric.

However, when Christian conversion is the unique process of turning to the true God, for which the ground can be prepared by fellow humans, but which ultimately consists of the soul and conscience's response to the workings of this God, then this same set of limits cannot apply. In fact, within this framework, restricting conversion, as one would any human practice of propagation, becomes unreasonable and unethical. This is what the Christian representatives in the Assembly attempted to convey: minors also have a conscience before God, and when they feel called by him to convert to another religion, no law should ever prevent them from doing so. Since all human beings are the creatures of God, who has given each of them a conscience that can respond to his call, the act of religious conversion cannot require as a precondition a mature and well-formed intellect and knowledge of different religions and traditions.

This is not to deny that there are strands in the Christian thinking about conversion which emphasize the role of persuasion and reasoning in the act of converting and which question the legitimacy of attempts to convert children from one religion to another. Even in those arguments, however, the same basic challenge remains relevant: putting legal restrictions on the freedom of conversion would amount to subordinating the will of God to human laws; it is equivalent to oppressing the consciences of individuals simply because of their age, intellectual capacities, and origin. This should not happen, since all human beings—regardless of ethnic or religious origin, age, gender, or mental capacities—ought to be free to respond to their Creator's call to conversion. Consequently, curbing the right to propagate religion in this way is to place an "embargo absolutely on the right of conversion," as one Christian participant in the debate put it (CAD, 1 May 1947, Frank R. Anthony). Additionally, it is also unethical because parents who go through conversion cannot bring their children to the religion which they believe is the only genuine response to God's call and the sole way of saving their souls.

### *4.4. A Culture Constituted by Tradition*

How do we account for this incompatibility between two ways of seeing 'propagation of religion' and for the fact that it generally remains implicit and invisible but only becomes explicit in certain circumstances? To address this question, we first need to figure out the Indian conception of traditions and characterize how these traditions are culturally different from religions such as Christianity.

In his studies of the cultural differences between Asia and the West, S. N. Balagangadhara has theorized tradition as a type of phenomenon distinct from religions like Christianity, Judaism, and Islam (see Balagangadhara 1994, 2005, 2012). 'Tradition' refers to the ancestral traditions of different groups and communities in Asia (and elsewhere, ancient Rome, for instance). The members of such traditions continue them, not because of the alleged truth or validity of some set of beliefs or reasons, but because they have been passed on by the ancestors and transmitted from generation to generation. Such traditions, including their practices and stories, constitute communities as they evolve over time. They are both conservative and flexible: conservative because practices are generally retained unless there are good reasons to modify or discard them; flexible because the process of transmission always involves the modifying or rejecting of practices and the revising of stories and ideas.

Naturally, the Indian traditions (and Asian traditions in general) consist of more than ancestral practices and stories alone. They provide heuristics and ways of teaching which enable their members to learn to think about experience and act in the world. Generally, the many Indian traditions are oriented towards enabling the practitioner to move in the direction of 'enlightenment' or 'the dawning of knowledge'; hence, they provide a multiplicity of heuristics, signposts, and teaching methods to this effect (Balagangadhara 2005). The efficacy of such heuristics and methods depends on a range of factors, from the psychological inclinations of individuals, and their cognitive and other capacities, to the cultural context in which they have been raised. As a consequence, it does not make much sense to *persuade* individuals or groups of the virtues of such heuristics or methods; these are not doctrines that can be preached and accepted, since predicates of truth and falsity are not applicable to them. Rather, the question is whether or not a tradition and its heuristics are appropriate, helpful, and suitable for a certain individual. In this sense, people cannot be 'converted' into a tradition, even though they may move from one tradition to another for a variety of reasons; similarly, there may be attempts to spread a tradition, but this does not amount to having more and more individuals accept the 'truth' of a set of doctrines.

In a culture constituted by tradition, certain widely accepted clusters of ideas will dominate the reasoning about the shared practices, stories, and ideas of human groups. One such commonplace idea relates the venerability of traditions to their past and antiquity; that is, traditions are considered significant in so far as they have been transmitted and refined over many generations. Second, there is a tendency to connect each tradition to some community that claims a distinct past or to a more recent group that has crystallized around a specific teacher. Third, traditions (and their diverse practices, ideas, and stories) are considered as phenomena of human origin—implicitly so, since no need is felt to state this explicitly. Fourth, another common idea about traditions has to do with the spreading of their heuristics: these are to be disseminated in so far as they are useful to people. Members of a tradition may argue that the heuristics taught by their teachers are superior to those of any other tradition. But to suggest that one tradition should be followed by all of humanity because of its unique truth becomes implausible or even absurd against this background.

Finally, traditional practices can give rise to excesses and, when this is the case, human reason plays the role of putting constraints on these excesses. Thus, *human reason* plays a vital role in these traditions. It does not aim to provide the foundation for traditional practices in the sense of providing reasons or beliefs that should justify them. Instead, it puts reasonable constraints on traditions and their practices. That is, the role of reason is to prevent and constrain excesses and to allow one to carefully select and modify practices, whenever changing circumstances, differing conditions or other factors call for this.

We suggest that this cluster of ideas about the nature of traditions is widely present in Indian society and, together with other related conceptual clusters, this constitutes the background framework which guides the intuitive reasoning of people about the traditions and practices of human communities. It provides them with a common vocabulary; it plays a central role not only in formulating thoughts about human traditions, but also in assessing the plausibility, significance, and reasonableness of such thoughts. This conception of tradition and the related cluster of ideas also determine the way in which followers of Indian traditions categorize and see the practices of other communities.

Another phenomenon of vital importance is one which we will not consider in any depth here, but which we have examined elsewhere: these widely shared clusters of background ideas concerning tradition gave shape to how Indians adopted the English language from the colonial period onwards and how they use its relevant vocabulary such as 'religion', 'conversion', 'propagation', 'freedom', and the 'right to religious freedom' (Claerhout 2014; De Roover et al. 2011). Inevitably, English-language terminology is mapped onto the natural language usage of the Indian vernaculars and their relevant vocabulary. This often results in statements that look peculiar, bizarre, and incoherent, such as several of the Assembly members' claims about the constitutional 'right' to propagate religion.

### *4.5. Tradition, Propagation, and Conversion*

This hypothesis about the nature of tradition allows us to take the next step in characterizing the problems in the Indian dispute about conversion and propagation of religion. Consider the positions of Assembly members and Indian judges with a background in the Hindu, Jain, or Sikh traditions. Predictably, their reasoning with regard to 'the propagation of religion' will be shaped by the typical cluster of ideas about the nature of tradition. They see the practices, ideas, and stories of different groups in Indian society as so many traditions transmitted from generation to generation. As a consequence, in their experience, a religion like Christianity becomes just another tradition or set of traditions, which has some peculiar characteristics but constitutes a form of tradition nonetheless.

That is, in a culture dominated by tradition, Christianity comes to be viewed as the specific tradition of a community and not as the one true religion for humanity. However, this way of seeing Christianity makes one oblivious to its core structure, since this religion is held not as a human tradition but as the revelation of the biblical God to humanity. This phenomenon is confounding, since Christianity shares many elements that traditions also have: throughout their past, Christian communities also developed a set of practices and doctrines, which are products of human origin and are transmitted from generation to generation and should be assessed by means of reason. However, in their experience, the core of Christian religion is the revelation of the biblical God to humanity, which expands and spreads because of His intervention, rather than purely by human transmission. To ignore this and to see Christianity as one more tradition is perfectly understandable from the perspective of a culture dominated by tradition, but it is equivalent to being blind to the crucial difference between traditions and a religion like Christianity.

This is what happens in the Indian debate about the right to propagate religion. People with a background in the Indian traditions approach the Christian religion as *one more* tradition. Consequently, the propagation of religion becomes the equivalent of the dissemination of traditions and their ideas and practices. That is, they draw upon the cluster of ideas about tradition to make sense of Christian conversion and proselytization: against this background framework, conversion is no more than a transmitted practice characteristic of this tradition. In this way, the practices of dissemination of traditions, with which they are already familiar, can also serve as models to make sense of these practices of the Christians. In other words, their intuitive category of 'propagation of religion' is constituted by this conception of tradition. Inevitably, this makes them blind to the distinct nature of the Christian process of conversion, because it has them view this process as a variant of the practices whereby Indian traditions are disseminated.

This has another consequence: if the propagation of religion is equal to the dissemination of tradition, then it has a status similar to other means of spreading human ideas and practices. That status explains why the freedom of conversion should remain within the limits of reason and ethics that apply to all such human practices. The Indian cluster of ideas concerning tradition make it *unreasonable* (and even absurd or unintelligible) to insist that minors or the mentally disabled should share the same freedom to convert as adults with well-developed cognitive capacities. Since moving from one tradition to another is a process guided by human deliberation, and a potentially life-changing step, it requires cognitive and emotional maturity. Hence, trying to convert children or the mentally disabled is an excessive form of the Christian practice of propagation, which should be constrained by reason.

Under these conditions, it also becomes a possibility to equate 'propagation of religion' to 'propaganda', and to see 'the right to propagate religion' as equivalent to a 'right to propaganda', as several Assembly members did. Here, 'propaganda' refers to actions aimed at spreading human ideas and institutions, including political ideology and spiritual discourse. The 'propagation of religion', to these people, becomes just a special form of propaganda, or 'propagating' and 'preaching' human ideas. Unavoidably, this generates a question: why should the propagation of religion then acquire a special status in the Constitution? From this perspective, the right to propagate religion appears redundant, since 'the right to propaganda' is already encompassed by the constitutional clauses that protect the right to free speech and freedom of expression. As Munshi put it, even if the word 'propagate' were not there, "I am sure, under the freedom of speech which the Constitution guarantees it will be open to any religious community to persuade other people to join their faith" (CAD, 6 December 1948, K. M. Munshi). Or, in the words of another member, "after all, propagation is merely freedom of expression" (CAD, 6 December 1948, Shri K. Santhanam).

In contrast, in Christianity, the propagation of faith (or '*propagandum Fidei*' in Latin) cannot merely be a specific form of propaganda to be subsumed under the right to freedom of expression. For Catholic Christians, the propagation of faith is intertwined with the very nature of the Church. As the Bible has it, the Church is divinely sent to the nations of the world to be unto them "a universal sacrament of salvation" (Mark 16:16). Following in the footsteps of Christ, the Apostles "preached the word of truth and begot churches" and it is the duty of the Church to continue this task "so that the word of God may run and be glorified" (2 Thess. 3:1). In other words, the kingdom of God should be proclaimed and established throughout the world. This also describes the duties of the Church's Society for the Propagation of the Faith. Things are not so different for Protestants, even though they would deny the status of the Roman-Catholic Church as a divinely-sent institution. For instance, the Society for the Propagation of the Gospel in Foreign Parts, an Anglican missionary organization active on the Indian subcontinent, had as its objective to show "the greatest Charity" to the souls of men by bringing the natives into "the Sheep-fold of our blessed Saviour" through "the use of the means of Grace" (Pascoe 1901, p. 8). However, unless blessed by God, this charitable work is worth nothing, as a popular English hymn about missionary work from this period, titled *God is working his purpose out*, made clear: "All that we do can have no worth, unless God bless the deed; vainly we hope for the harvest-tide, till God gives life to the seed" (Pascoe 1901, p. iii).

For Christians, then, the propagation of faith has an extraordinary status: it is propagating the Word of God, rather than any human message or ideology; it is part of proclaiming and establishing the kingdom of God throughout the world, rather than spreading the scope of some human tradition, movement, or institution. Here, it would be unacceptable to reduce the propagation of religion to 'propaganda', similar to propagating mere human ideas and institutions, and to suggest that the right to propagate religion is redundant since it is already covered by the freedom of speech or expression. This would be to reduce the Word of God to the status of human opinion and the doing of God's work to the equivalent of ideological propaganda. In the Christian religion, this will always be intolerable.

### *4.6. The Limits of Propagation?*

By now, it should be clear that the conflict about conversion in India is not a clash between a party that opposes the freedom to propagate religion and one that defends this freedom; it is not a question of being pro- or anti-conversion; and it is certainly not a conflict between Hindu nationalists, who feel threatened by the recognition of the right to convert, and progressive or liberal-minded secularists, who wish to safeguard this fundamental right for the minorities and lower castes. This type of explanation amounts to misrepresentation of the Indian dispute about the right to propagate.

The intensity of the conflict over conversion has only grown in India in the decades that followed the enacting of the Constitution in 1950. The challenge confronting our alternative analysis is to make sense of this enduring conflict. How would our proposal allow us to predict the structure and dynamics of the lasting disputes about conversion?

Currently, we can only take a few steps towards answering this question. One crucial step is the realization that we are not only facing a conflict between two background frameworks or clusters of ideas: an Indian conception of the dissemination of tradition and Christian claims about the process of conversion. The two parties involved in the dispute also experience the conflict in *two incompatible ways*. One sees it as a question of imposing reasonable limits on (the excesses of) the Christian practices of conversion, which are viewed as instances of the human dissemination of tradition; for them, attempts to convert others that go beyond these limits are violations of the freedom of religion and conscience. The other sees it as the imposition of unreasonable limits on the process of conversion, which is primarily shaped by the biblical God; for them, it is obvious that the freedom to convert is essential to the freedom of religion and conscience. Both share a blindness to each other's experience of the conflict.

If this is the case, we can infer some basic predictions as to the further development of the conflict over conversion in India. The same set of issues should recur over and again, without giving rise to effective legal solutions. In fact, as the implicit clash becomes visible at surface level, these issues will get exacerbated. People reasoning against the background of one framework will find it increasingly difficult to digest that the propagation of religion should allow certain groups to try and convert members of other groups by means considered intrusive and unreasonable. When it becomes clear to them that Christian conversion cannot fit within the propagation of religion, as they intuitively understand this category, they will find this practice objectionable and call for legal restrictions. They will not see any conflict between recognizing the constitutional right to propagate religion and yet imposing such restrictions on conversion. Groups reasoning against the second background framework, in contrast, will find it increasingly objectionable that their practices of conversion are subordinated to unreasonable and discriminatory legal constraints.

Do these predictions help us to understand the clash over conversion in India as it has developed since the 1950s? This is what future research will have to examine. At first sight, the hypothesis looks promising, since it appears to allow us to make sense of specific developments. For instance, during the past decades, legislation has been passed by several state governments that seeks to restrict conversion *in the name of freedom of religion*. As noted, the Supreme Court also argued that the freedom to propagate religion does not entail a right to convert others, since conversion conflicts with the freedom of conscience once it goes beyond propagation understood as the transmission of the tenets of a religion. Our proposal holds the potential to show why such apparently unreasonable laws and legal decisions nevertheless make sense to Indian legislators and judges.

### **5. Conclusions**

Before concluding, we need to highlight some potential risks of misunderstanding our analysis. The first can be put in the form of a question: Are we arguing that Indian Christians or Muslims are any less Indian, because they do not share the same conception of tradition? This type of question is misguided, since there is no sound way of conceptualizing and measuring the 'Indianness' of individuals. Moreover, it is also unproductive, for it conceals far more promising research questions.

In the Constituent Assembly, we saw a Muslim representative take positions that appear to be constituted by the Indian conception of tradition. He questions the right to propagate religion: "Why should you interfere with my religion and why should I interfere with your religion?" (CAD, 3 December 1948, Tajamul Husain). From this, we can infer that some Indian Muslims adopted these background ideas about tradition. A similar phenomenon is visible in Frank Anthony's explicit declaration that his community of Anglo-Indian Christians neither propagates nor converts (CAD, 1 May 1947). To allow for this, the way in which such Indian Muslims and Christians experience and practice their respective religions in India must have taken a distinct form, where the spreading of 'true religion' is subordinated to other dynamics.

This raises the general question as to how religions like Islam and Christianity begin to change when they are embedded in a cultural setting constituted by the phenomenon of tradition, such as Indian culture. How do their attitudes and ideas concerning religion take new and different forms, when they operate in a larger framework of Indian traditions? Obviously, formulating and answering this question requires extensive research, but it indicates that there are routes to think about the relationship between Indian culture and a religion like Christianity, which are more fruitful than the increasingly barren debates about religion and conversion in contemporary India.

A second risk of misunderstanding the hypothesis is that we are merely suggesting that the Constituent Assembly members failed to understand Western-Christian notions of 'religion', 'conversion', 'rights', and 'freedom'. This is not our claim. Instead, we wish to draw attention to the fact that cultural difference is relevant to understanding the dispute about conversion and religion in India. When people with a background in the Indian traditions voice concerns about propagation and conversion, they are implicitly stating a cultural conception of tradition, which has so far been ignored in the debate and in academic analysis. The fact that they appear to use the English language—and its vocabulary like 'religion', 'propagate', and 'conversion'—fluently has been misleading. Because of their usage of these words, their concerns are easily distorted. Many of their concerns about conversion and propagation of religion have been swept under the rug as though they simply reflect a 'Hindu nationalist ideology' and are irrelevant to the question of religious freedom. This not only misrepresents the Indian conflict about conversion but also prevents us from understanding the real concerns and finding solutions.

Even more, it covers up another question: how is it possible that Indian 'secularists' and political leaders like Nehru and Ambedkar found it obvious that the freedom of conscience and religion should entail the right to convert others to one's own religion? Why did they ignore the reasoning of the critics of conversion in the Constituent Assembly and elsewhere? And why is it so self-evident to Western commentators and to international bodies like the United Nations that the legal restrictions on conversion in India constitute violations of the right to religious freedom? These questions are significant because the secular intelligentsia seem to be reproducing a Christian position on the freedom of conscience and the right to convert, as though this is *the* self-evident and rational option, while ignoring the concerns generated by the Indian conception of tradition.

Understood against the background of a culture constituted by tradition, the fact that one argues for constraints on religious conversion is not incoherent with simultaneously advocating the freedom to propagate religion. From this perspective, the freedom of religion includes the freedom for the Christians to continue their practices, even if one of those practices comprises a peculiar and often objectionable form of 'transmitting the tenets of religion'. So long as this practice of conversion remains within certain limits of reason and ethics, Christians should be free to partake in it; when it goes beyond those limits, it becomes an intrusion into the freedom of religion of others. Against this background, then, Article 25 includes the freedom for Christians to continue their practices ('conversion') but within the limits set by the Indian conception of tradition and its notions of dissemination ('propagation'). Future research will have to show whether this hypothesis can help unravel the continuing dispute about conversion and religious freedom in India.

**Author Contributions:** Both authors have contributed equally to this research article.

**Funding:** This research received no external funding.

**Conflicts of Interest:** The authors declare no conflict of interest.

#### **References**


Heredia, Rudolf C. 2007. *Changing Gods: Rethinking Conversion in India*. New Delhi: Penguin Books.

Huff, James Andrew. 2009. Religious Freedom in India and Analysis of the Constitutionality of Anti-Conversion Laws. *Rutgers Journal of Law and Religion* 10: 3–7.

Jaffrelot, Christophe. 2010. *Religion, Caste and Politics in India*. Delhi: Primus Books.


© 2019 by the authors. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (http://creativecommons.org/licenses/by/4.0/).

## *Article* **The Trend to Discriminate Christians: Shifting from the 'Post-Christian' West to the Global South**

**Nataliya S. Semenova 1,\*, Ekaterina V. Kiseleva <sup>2</sup> and Aleksandr M. Solntsev <sup>2</sup>**


**\*** Correspondence: semenovanataliya@mail.ru

**Abstract:** To date, various international treaties have been adopted at the universal and regional levels, guaranteeing the protection of every person's freedom of conscience and religion. Moreover, international monitoring mechanisms have been established to protect this human freedom within the framework of the UN, as well as various regional organizations (OSCE, Council of Europe, African Union). (1) In this article, the authors analyze these mechanisms and identify both positive practices and negative discriminatory practices against Christians—citizens of the states of the Global South. (2) The methodological basis of the study involves a combination of general scientific (dialectical, historical, inductive, deductive, analytical, synthetic) and particular scientific methods (formal–legal, comparative–legal, interpretative, statistical, procedural, and dynamic). (3) The use of these allowed the authors to identify a number of key problems in the indicated discourse and to draw conclusions. With regard to abortion, the authors conclude that current trend is that, in multiple and various ways, states are pressed to prioritize a woman's right to life, a woman's freedom of "reproductive choice" over a doctor's right to freedom of conscience. The situation is similar with the prioritization of the so-called "rights" of LGBT persons in relation to the rights of believing Christians. Moreover, the authors pay much attention to the analysis of the situation of the prosecution and persecution of Christians in the countries of the Global South, especially in Africa. (4) In conclusion, it is noted that various instruments, both political and legal, have been established in international law which make it possible to identify facts of the violation of freedom of religion and call to account for such acts of discrimination, but they are not always effective.

**Keywords:** international law; human rights; discrimination; Christianophobia; freedom of conscience; freedom of religion; abortion; UN; OSCE

### **1. Introduction**

On 22 August 2019, the United Nations celebrated the first annual International Day Commemorating the Victims of Acts of Violence Based on Religion or Belief. The establishment of such an international day testifies to a serious problem with respect to human rights, primarily the right to freedom of thought, conscience, and religion, in various countries.

"According to the Organization for Security and Cooperation in Europe (OSCE),

[E]very 5 min a Christian is killed for their faith ... More than 100 million Christians are being persecuted today ... These figures should make the international community not only think and talk about the problem of discrimination against Christians, but also take decisive action in their defense".<sup>1</sup>

**Citation:** Semenova, Nataliya S., Ekaterina V. Kiseleva, and Aleksandr M. Solntsev. 2021. The Trend to Discriminate Christians: Shifting from the 'Post-Christian' West to the Global South. *Religions* 12: 108. https://doi.org/10.3390/rel12020108

Academic Editor: Waheeda Amien

Received: 30 December 2020 Accepted: 29 January 2021 Published: 6 February 2021

**Publisher's Note:** MDPI stays neutral with regard to jurisdictional claims in published maps and institutional affiliations.

**Copyright:** © 2021 by the authors. Licensee MDPI, Basel, Switzerland. This article is an open access article distributed under the terms and conditions of the Creative Commons Attribution (CC BY) license (https:// creativecommons.org/licenses/by/ 4.0/).

<sup>1</sup> Combating discrimination against Christians in the world as a contribution to the development of the concept of human rights. Speech by the Chairman of the DECR, Metropolitan Hilarion of Volokolamsk at a meeting of the III UN Committee (New York, 23 October 2012). Available online: https://pravoslavie.ru/56968.html (accessed on 20 December 2020).

For the period 1945 to 2019, an independent branch was formed within the framework of international law—international human rights law. One of the basic principles of international law on which this branch is based is "respect for human rights and fundamental freedoms, including freedom of thought, conscience and religion".<sup>2</sup> This principle is a peremptory norm of *jus cogens*, the violation of which is unacceptable. It is important to pay attention to the fact that it is the freedom of thought, conscience, and religion that is especially highlighted within the framework of this principle and even included in its name.

Moreover, states have committed themselves to respecting the right to freedom of thought, conscience, and religion in the framework of numerous international treaties, which were based on the Universal Declaration of Human Rights of 1948 (Articles 18, 19, 20). The basic universal international treaty that enshrines the right to freedom of thought, conscience, and religion is the International Covenant on Civil and Political Rights of 1966 (Articles 18, 19, 20, 26, 27), as well as the International Covenant on Economic, Social and Cultural Rights of 1966 (para. 3, Article 13).

At the regional level, international treaties have also been adopted that consolidate and detail the right to freedom of thought, conscience, and religion, taking into account local cultural characteristics. In addition, all international human rights treaties contain provisions prohibiting discrimination based on religious attitudes.

Thus, it can be stated that, at the international level, there is a solid legal basis for international obligations of states to guarantee the right to freedom of conscience, thought, and religion. It should also be noted that compliance with these guarantees is ensured at the international universal level by the existence of a developed system of statutory and contractual control mechanisms, within the framework of which states report on the fulfillment of their obligations.

Nevertheless, despite the existence of a well-developed international legal system for protecting the right to freedom of thought, conscience, and religion, the problem of the implementation of this right, including persecution and discrimination based on religion, is acute in many countries of the world.

As stated by Konstantin Dolgov, commissioner of the Ministry of Foreign Affairs of the Russian Federation for Human Rights, Democracy and the Rule of Law,

In recent years, despite the measures taken by the states, the OSCE area has seen a serious increase in intolerance on religious grounds towards Jews, Muslims and especially Christians. Christianity, its shrines and followers are subjected to prosecution, violence, persecution, discrimination ... Among such manifestations are attacks on clergy, opposition to religious events, destruction and desecration of Christian churches and cemeteries, attempts to remove religious symbols from public places, infringement of the freedom of expression of Christians, discrimination in economic life and other spheres. The number of acts of vandalism, arson, theft of Christian values and cultural heritage is on the rise.3

For the past 10 years, the Russian Orthodox Church has constantly drawn the attention of the international community to the problem of the persecution and discrimination of Christians.

It should be noted that the term "Christianophobia" has come into widespread international use since it was first voiced at the 2009 UN World Conference against Racism, where the participating states regretfully noted the global rise in the number of incidents of racial or religious intolerance and violence, including Christianophobia.4

<sup>2</sup> Final Act of the Conference on Security and Cooperation in Europe 1975. Available online: https://www.osce.org/helsinki-final-act (accessed on 20 December 2020).

<sup>3</sup> The Foreign Ministry Announced the Surge of Christianophobia in the West. Available online: https://www.interfax.ru/russia/511239 (accessed on 20 December 2020).

<sup>4</sup> Clause 12 of the Outcome Document of the Durban Review Conference (2009), United against Racism, Racial Discrimination, Xenophobia and Related Intolerance New York, 2012, p. 96. Available online: https://www.un.org/ru/letsfightracism/pdfs/united\_against\_racism.pdf (accessed on 20 December 2020).

This article will touch upon two types of discrimination against Christians, the most common in the Global North, and which are increasingly resonating in the Global South, including as a result of significant pressure in the human rights sphere, as well as the direct prosecution and persecution of Christians for professing their own faith in the Global South. With regard to the discrimination against Christians, the article will study examples of prosecution (disciplinary, administrative, and criminal) for refusing to perform an abortion on grounds of conscience and religion and for refusing to provide services to LGBT people when this conflicts with the Christian conscience of the provider. The prosecution and persecution of Christians for their faith in the countries of the Global South will be considered in the context of the international obligations assumed by states to respect the right to freedom of thought, conscience, and religion.

### **2. Refusing Abortion Is a Right and Duty of a Christian**

This section provides a comparison of the rights of various subjects who find themselves connected through abortion (a woman, an unborn child, and a medical worker). The scope and protection of these rights are exemplified by the International Bill of Human Rights5 at the universal level and the practice of the ECHR at the regional level as international legal basis for comparison and several cases from the practice of the states of the Global South.

The authors reveal the disproportion of the attention to "abortion rights" in comparison with the right to freedom of religion in the interpretation of human rights treaties. The authors also stress that the disbalancing of human rights is, firstly, in place and leads to the violation of religious rights entitled to protection, even in cases where the balance could easily be found, and, secondly, disbalancing is carried out by gross distortions when the obligations of the states are being presented as obligations of individuals or when the proportionality of measures affecting the religious rights is one-sidedly assessed (only right against right and not, additionally, severity of limiting measures against other measures available). Here, the issue is not even about the uniformity of Christian denominations in abortion questions (although the "pro-choice" position is marginal among the Christian denominations; cf. (Schlesinger 2017) but about the right to be protected by international law on the part of those who, from a religious point of view, consider abortion to be a murder, as literally proven by the Ecclesiastical position of, e.g., Orthodox and Catholics, as cited below.

An abortion in medicine means "termination of pregnancy in the first 28 weeks, when the fetus is not yet viable".<sup>6</sup> In this way, the development of medicine makes it possible to save the life of an infant at an ever earlier stage and with the decreasing weight of the child at birth. In connection with the physiology of a pregnant woman, abortions are of two types: spontaneous and artificial. This article discusses exclusively the latter.

Starting from the second half of the twentieth century, abortion legislation has been steadily liberalized, often while retaining the provisions of relevant national regulations that allow medical practitioners to refuse to perform abortion for the reasons of conscience (Chavkin et al. 2017, p. 55).

The fact of artificial termination of pregnancy raises human rights issues in relation to three subjects (a woman carrying a child, an unborn child, and a medical practitioner who performs an abortion or refuses to perform it). Accordingly, in the International Bill of Human Rights and General Comments issued by the United Nations Human Rights Committee and the United Nations Committee on Economic, Social and Cultural Rights, we can find in the context of abortion the rights of women (right to life, right to the highest attainable standard of health, principle of non-discrimination and others), the rights of the child (but not the unborn), and the rights of the medical practitioner (the right to freedom of thought, conscience, and religion).

<sup>5</sup> The "International Bill of Human Rights" is a collective name for the Universal Declaration of Human Rights (1948), the International Covenant on Economic, Social and Cultural Rights (1966), and the International Covenant on Civil and Political Rights (1966) and its two Optional Protocols.

<sup>6</sup> Great medical encyclopedia of Petrovsky B.V. Available online: https://бмэ.орг/ (accessed on 20 December 2020).

The right to life is enshrined in Art. 3 of the 1948 Universal Declaration of Human Rights and Art. 6 of the International Covenant on Civil and Political Rights of 1966. The International Covenant on Civil and Political Rights 1966 in paragraph 1 of Art. 6 contains provisions prohibiting arbitrary deprivation of life. Derogation from the right to life is not permitted in any situation (UN HRC 2018, para. 1).

The voluminous paragraph 8 of the Human Rights Committee's General Comment No. 36 (2018) is devoted entirely to abortion in the context of the right to life (UN HRC 2018). Paragraph 8 contains a range of restrictions on the states party to the covenant in limiting the voluntary termination of pregnancy; it includes a series of "positive obligations" of states to guarantee "safe, legal and effective access to abortion" and advocates against unsafe abortions, where "unsafe" is used as a synonym for "illegal", as if abortion per se is a harmless manipulation.

Paragraph 8 states that

"restrictions on the ability of women or girls to seek abortion must not, inter alia, jeopardize their lives, subject them to physical or mental pain or suffering that violates article 7 of the Covenant, discriminate against them or arbitrarily interfere with their privacy"7.

It specifically recommends, inter alia, the removal of barriers that deny effective access by women to safe and legal abortion, "including barriers caused *as a result of the exercise of conscientious objection by individual medical providers*" (emphasis added by the authors).

In 2016, the Committee on Economic, Social and Cultural Rights adopted General Comment No. 22 on the right to sexual and reproductive health (Article 12 of the 1966 International Covenant on Economic, Social and Cultural Rights) (UN CESCR 2016). According to the provisions of this document, it is important to consider the availability of qualified medical personnel, medicines, including medicines for abortion and for post-abortion care (para. 13); access to and dissemination of information on sexual and reproductive health issues (para. 18); access, on an equal basis with men, to medical services, medicines, and legal methods of termination of pregnancy, and contraceptives (para. 28); elimination or restriction of state's adoption of such laws, the action and implementation of which causes the restriction of the ability of individuals or groups of individuals to have the last rights to sexual or reproductive health, including the prohibition of abortion or criminal liability for them (para. 34); compliance with medical data (p. 40); cancellation of such a right in the future, restricting the rights of individuals to sexual and reproductive health, interference with such rights by third parties (para. 41), and others.

In 2000, the Human Rights Committee issued its General Comment No. 28 on Article 3 of the International Covenant on Civil and Political Rights of 1966, where the abortions appeared as indicators (para. 5) and consequences (paras. 10, 11) of inequality between men and women and where certain regulatory measures on abortions were named among examples of discriminatory violations of women's rights (para. 20) (UN HRC 2000).

The considered human rights documents pass over in silence the unborn child, the reason for which can be considered the lack of consensus between states regarding the legal basis of the very beginnings of human life. The Universal Declaration of Human Rights implicitly links legal personality to birth, since its Article 1 begins with the following words: "All human beings *are born* free and equal in dignity and rights (emphasis added)". However, the American Convention on Human Rights of 22 November 1969, in Art. 4.1, states the following: "Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception".

In solidarity with the Christian view of the origin of human life from the moment of conception, see (Ling 2017; Disney and Poston 2010), and taking into account the attention that is paid to arbitrary deprivation of life (UN HRC 2018, para. 6, para. 7, Section II "Prohibition against arbitrary deprivation of life"), the eradication of the death penalty

<sup>7</sup> Mentioning women and girls separately is based on the age gradation of adults (over 18 years old) and children (up to 18 years old, inclusive).

(UN HRC 2018, paras. 32–51) in the context of the right to life, we cannot call the provisions of para. 60 of General Comment No. 36 (2018) anything other than a mockery:

"When taking special measures of protection, States parties should be guided by the best interests of the child, and by the need to ensure *survival*, development and well-being of *all children* /emphasis added, footnotes omitted/". (UN HRC 2018)

From a human rights perspective, a physician who refuses to perform an abortion for reasons of conscience must be protected by the right to freedom of conscience, religion, or belief.

As of 16 October 2020, the interpretation of Article 18 of the International Covenant on Civil and Political Rights of 1966 was given for the last time as long ago as in 1993 (UN HRC 1993). General Comment No. 22 (48), recognizing the right to freedom of thought, conscience, and religion (including freedom of belief) as "far-reaching and profound" (para. 1), is only four typewritten pages long, has 11 paragraphs8, and is rather general (UN HRC 1993). Of the actions that may be due to religious beliefs, the document mentions only refusal to perform military service (para. 11). It also states, "no manifestation of religion or belief may amount to ... advocacy of ... hatred that constitutes incitement to discrimination, hostility or violence" (para. 7). The latter provision, in light of the aforementioned links of inequality between men and women with the problem of abortion in General Comment No. 28 (2000) (UN HRC 2000), in fact, is directed against the right of a medical practitioner to refuse abortion on grounds of conscience.

General Comment No. 24 (2017) of the Committee on Economic, Social and Cultural Rights, dedicated to the obligations of States under the International Covenant on Economic, Social and Cultural Rights in the context of business, also mentions the right of a physician to refuse an abortion on grounds of conscience when analyzing "the increased role and impact of private actors in traditionally public sectors, such as the health or education sector ... " (para. 21) (UN CESCR 2017). The Committee recommends to the states that "Private providers should be subject to strict regulations that impose on them so-called "public service obligations". For instance, where health practitioners are allowed to invoke conscientious objection to refuse to provide certain sexual and reproductive health services, including abortion, they should refer the women or girls seeking such services to another practitioner within reasonable geographical reach who is willing to provide such services" (para. 21).

Three significant problems are present in the two quotes above. Firstly, again, it is about ensuring the rights of pregnant women and girls, and not the doctors, while the entitlement to protection of the latter should have been mentioned or even stressed, too. Secondly, the obligation is shifted to the doctor and does not remain with the state or, in this case, with the business entity—for example, in the form of the obligation to ensure the availability of abortion, despite the presence of religious health workers and without infringing on the right to freedom of belief of the latter. Thirdly, the document refers to General Comment No. 22 (2016) on the right to sexual and reproductive health, but not to General Comment No. 18 (1993) on the right to freedom of thought, conscience, and religion. This omission could have been easily avoided with the use of a more balanced text.

The European Court of Human Rights (hereinafter referred to as the ECHR or Court) has considered a number of cases related to abortion: cases concerning the abortion procedure and the violation of women's rights to perform it (ECHR 1980; ECHR 2010; ECHR 2004, etc., as well as Council of Europe: European Court of Human Rights 2016; see also Puppinck 2013), as well as concerning the right to religion and non-abortion (ECHR 2007; ECHR 2011; ECHR 1989, etc.). It can be said that the position of the Court is generally pro-abortion. It seems that the reason for this state of affairs is the de-Christianization of Western European society, expressed, among other things, in the development of the concept of so-called somatic human rights.

<sup>8</sup> For comparison: General Comment No. 36 (2018). Article 6: Right to life consists of 25 pages and 70 paragraphs (UN HRC 2018), General Comment No. 28 (2000). Article 3 (equality between men and women) has 7 pages and 32 paragraphs (UN HRC 2000).

Paragraph 3, clause XII.2 of the 2008 Fundamentals of the Social Concept of the Russian Orthodox Church states that "faithfulness to the biblical and patristic teaching on the holiness and invaluableness of human life from its very origins is incompatible with the recognition of a woman's "freedom of choice" to dispose of the fate of the fetus" (Fundamentals of the Social Concept of the Russian Orthodox Church 2008). However, it is precisely this "freedom of choice" that is the human rights consequence of the development of the concept of so-called somatic human rights, which are increasingly asserted at the universal and regional levels of human rights protection by international legal means.

In 2020, the European Court of Human Rights rendered judgments in the cases of two nurses from Sweden (Ellinor Grimmark and Linda Steen) who trained as midwives and were refused employment in Sweden due to their conscientious objection to abortion (ECHR 2020a, 2020b). After the judgments were made against Ellinor Grimmark and Linda Steen by the Swedish courts, the nurses appealed to the European Court of Human Rights, but the latter refused to consider these cases as manifestly unfounded.

The grounds for the appeal to the ECHR are similar for the two applicants. Each of them completed midwifery training funded by a Swedish government program and received a license to practice midwifery in Sweden but were subsequently denied midwifery work when they declared their Christian faith and refusal to participate in abortion. The nurses referred to norms of discrimination and violation of their freedom of conscience.

In both decisions, the Court found that it was a Christian belief that prevented the applicants from participating in abortion and that per se this civil stance is entitled to protection (para. 25 Grimmark case, para. 20 Steen case). Or, in other words, conscientious objection to abortion constitutes the exercise of religion within the meaning of Art. 9 of the Convention, and therefore, in both cases, there was an interference with freedom of religion (para. 25 of the Grimmark judgment, para. 20 of the Steen judgment). However, such interference is subject to the provisions on limiting the exercise of religion, "which are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others", as enshrined in Art. 9 (2) of the Convention.

The Court unreasonably noted that the domestic courts carefully balanced the different rights against each other and provided detailed conclusions that were based on sufficient and relevant reasoning. A proper balance was thus allegedly struck between the different, competing interests (para. 27).

It seems that here, just like in the judgment on the Eweida case, which will be discussed in the next section of the article, the Court again confuses whose rights it is intended to balance. Obviously, the balance as sought by the Court here is between the "women's right to abortion", Sweden's "positive obligation" to organize the healthcare system for this "right", the employer's right to demand from all employees the entire scope of work, but not the right to freedom of religion of the health worker. In no way can a conclusion be made from the brief findings of the Court that the religious convictions of believers were recognized as eligible to be taken into account and be adapted to by the state, as is done with the healthcare system where the state adapts to the interest of a woman to get rid of a child she is carrying.

Under Art. 14 of the Convention (on discrimination), the Court also refused to consider the case as manifestly unfounded. The European Court of Human Rights agreed with the conclusion of the Swedish Discrimination Ombudsman, that the religious faith as such was at stake because "another midwife refusing a part of the work other than on religious grounds would not have been treated any differently from the applicant" (para. 10). Here, one can only regret that the applicant did not formulate the comparison groups as "midwives with convictions of conscience that do not allow abortion" and "midwives without convictions of conscience that do not allow abortions".

It is noteworthy that the Court links the proportionality of the restriction of the right to religion only with the protection of another right, but not with the fact that the restriction itself must be proportionate to other means available to the state to achieve a legitimate goal (to provide certain services, in this case)—for example, availability of personnel who agree to perform abortions; see (Domenici 2020).

Surprisingly, the ECHR "does not see" that its decisions, reducing the entire work of a midwife to abortion, and not, in fact, to obstetric aid, deprive Christian believers of the opportunity to participate in the accompaniment of labor. In other words, in this judgment, the Court did not even try to strike a balance between the woman's right to abortion, enshrined in Swedish law, which is *derived* in the Court's practice from the right to privacy under Art. 8 of the Convention, and the right to freedom of religion *directly* guaranteed by the 1950 European Convention on Human Rights. On the contrary, the Court established a rigid hierarchy of rights that is not envisaged in the Convention. Roughly, the right to freedom of religion is the last human right to be protected; precedence should be given to any other human right. The Court limited the employment opportunities of Christian believers in a certain area of medical activity (obstetrics) in a discriminatory manner on the basis of religion. Notably, the employment in obstetrics generally lies outside the scope of the Convention and, in the considered case, cannot be related to the protection of the right to life of a woman due to the general nature of the prohibition actually imposed by the Court and the classification of abortion in general as the right to respect for private and family life.

As a matter of fact, the Court shifted the responsibility for the state's implementation of its obligations to provide abortion services to the applicants, as if depriving Christian believers of obstetric activity because of their refusal to perform abortions was the only means available to the state to achieve access to abortion throughout the country.

Three cases from the law enforcement practice of the Global South states indicate the spread of similar approaches in this region.

In 2009, in Brazil, the Catholic Church excommunicated the mother of a nine-year-old girl who was raped by her stepfather, who gave her consent to an abortion, and doctors who performed the abortion.9 This decision was approved by the head of the Vatican Congregation for Bishops, Cardinal Giovanni Battista Re, but was strongly condemned by a part of society, including the President of the country, who spoke out "as a Christian and a Catholic", although the measures taken are ecclesiastical, not secular—the stepfather accused of rape was arrested to investigate the case.

In 2014, press covered the case of Bogdan Chazan, a Polish physician who, on Christian grounds, refused to perform an abortion on a woman whose child was unlikely to survive, according to doctors. The doctor did not inform the woman that after 24 weeks of pregnancy, she would not be able to have an abortion legally (according to Polish law, abortion procedures are allowed before the 25th week of pregnancy, "unless the life of the expectant mother or her child is in danger, as well as cases of incest or rape").<sup>10</sup> During the court proceedings, it was established that the doctor "had the right to refuse the procedure because it contradicted his Catholic faith, but was legally obliged to refer the patient to another doctor for an abortion procedure".11 The Catholic Church condemned the actions of the authorities regarding the dismissal of Bogdan Chazan from the post of director of the city's Holy Family hospital in Warsaw, but the decision remained in force.

The third case is the one of a doctor from Argentina who refused to abort the fetus of a woman in her 23rd week of pregnancy.<sup>12</sup> In this case, a pregnant woman who was raped by a member of her family came to the Fernandez Oro hospital, where her condition was assessed by doctors. As a result, the woman was referred to the Pedro Mogillaski hospital in Cipoletti to terminate the pregnancy. The facts of the case further indicate that, at the

<sup>9</sup> The Vatican supported the excommunication of a Brazilian woman who allowed her 9-year-old daughter to have an abortion. Available online: https://www.newsru.com/religy/10mar2009/abort.html (accessed on 20 December 2020).

<sup>10</sup> Polish doctor dismissed in "abortion refusal" case, 9 July 2014. Available online: https://www.bbc.com/news/world-europe-28225793 (accessed on 20 December 2020).

<sup>11</sup> Ibid.

<sup>12</sup> Argentinian doctor found guilty for refusing to abort 23-week-old baby. 22 May 2019. Available online: https://www.lifesitenews.com/news/ argentinian-doctor-found-guilty-for-refusing-to-abort-23-week-old-baby (accessed on 20 December 2020).

Cipoletti hospital, Dr. Rodriguez did not become fully persuaded that the woman had been given oxaprost (misoprostol) to induce an abortion, as generally this medication is given at yearly stages of pregnancy, but came to the conclusion of a risk of a serious and even life-threatening infection and prescribed relevant treatment. According to the testimony of the accused Dr. Rodriguez, the woman in the hospital was told that the intention of the doctors was to keep her until the possibility of a caesarean section, to which she gave her consent. As a result, a healthy child was born at 7.5 months of pregnancy, who, at the time of the hearing, was two years old.

The case was opened by the state prosecution and was legally related to the violation of the abortion law by inaction by Dr. Leonardo Rodriguez Lastra, whose refusal to perform an abortion late in pregnancy (23 weeks) was qualified by the court as "obstetrical violence", for which a penalty was imposed in the form of a suspended sentence of two years, subject to its replacement with a real imprisonment in the event of a repetition of a similar incident. The doctor was also under threat of being removed from the register of licensed doctors. According to the state prosecution, Dr. Rodriguez could not be convicted of violating the principle of conscience, since he "did everything possible not to perform the abortion procedure". They therefore demanded that he be convicted for "obstruction of the legal abortion procedure", since the woman who Rodriguez refused to perform an abortion on was raped by a family member in Fernandez Oro, and according to the Supreme Court, a woman reporting a rape does not have to prove that her pregnancy is the result of sexual assault, and she does not have to disclose the identity of the aggressor. In this case, Dr. Rodriguez Lastra did not question his patient's sincerity. Dr. Rodriguez Lastra, in his defense, referred to "the laws of his conscience" that prevented him from inflicting death on a child, as well as the dire consequences of late abortions.

The lawsuit has attracted a lot of media attention in Argentina, as abortion is illegal in the country but not punishable in so-called "extreme cases", which include pregnancy as a result of rape.<sup>13</sup> It is noteworthy that the trial itself was initiated by the deputy of the Rio Negro, Marta Milesi, who advocates for abortion and the introduction of relevant provisions into legislation. It was established during the questioning of the victim that she did not support the charges against Dr. Rodriguez.

Despite public support and approval for the actions of the accused Dr. Rodriguez, an indictment was brought against him.

Summing up, it is important to note that the Orthodox Church adheres to the position of the beginning of human life from the moment of conception, as reflected, for example, in the 2008 Fundamentals of the Social Concept of the Russian Orthodox Church:

"Since ancient times, the Church has considered the intentional termination of pregnancy (abortion) as a grave sin. Canonical rules equate abortion with murder. This assessment is based on the conviction that the birth of a human being is a gift from God, therefore, from the moment of conception, any attempt on the life of a future human person is criminal". (para. 1, clause XII.2)

Regarding the doctor's actions, the Concept says:

"Sin falls on the soul of the abortion doctor. The Church calls on the state to recognize the right of medical workers to refuse abortion for reasons of conscience. *It cannot be recognized as normal when the legal responsibility of a doctor for the death of the mother is incomparably higher than the responsibility for the destruction of the fetus*, which provokes health workers, and through them patients, to perform an abortion /emphasis added/. The physician should exercise maximum responsibility for making a diagnosis that can push a woman to terminate her pregnancy; at the same time, a believing physician must carefully compare medical indications and the dictates of the Christian conscience".

The Catholic Church, in stating a similar position, adds another important emphasis: "It is completely unacceptable ... to resort to abortion, even if it is done for the purpose of healing" (Humanae Vitae 1968).

Unfortunately, current trends in the interpretation of states' human rights obligations go in exactly the opposite direction: the murder of an unborn child is not simply recognized as murder but is regarded as a welcome element of "a woman's decent life without pain and suffering", while the Church makes no exception in its qualification of abortion as a sin, even for cases of conceiving children as a result of heinous crimes against women or girls.

States are encouraged by a plurality and variety of ways to prioritize a woman's right to life on earth, a woman's freedom of "reproductive choice" and her equality with a man over a doctor's right to freedom of opinion with implications for eternal life.

From the point of balancing different rights, the authors wish to stress that their position is not in proclaiming that it is only the freedom of religion that is entitled to protection. On the contrary, the authors attempted to demonstrate that the right to religion is entitled to protection, too, even in a time when abortion is considered by some to be a norm. The unjustified lack of balance is proven to be at the expense of the freedom of religion only. Point by point, the remedies were offered above, namely, in one case, the balance could be gained by a reference to one more document; in another case by the correct distributing of obligations between the state, the employer, and the employee; in the last case by the correct proportionality test of measures that limit human rights.

The situation is similar with the prioritization of the so-called "rights" of the LGBT persons in relation to the rights of the faithful Christians.

### **3. Christians' Right to Freedom of Religion vs. LGBT "Rights"**

First of all, it is important to note with regard to the "rights" of LGBT persons that LGBT persons do not have special rights that belong only to them. LGBT persons have all the same rights that non-LGBT individuals have, including the right to non-discrimination based on their relationship to any social group.

As the Vice Chairman of the UN Committee on Economic, Social and Cultural Rights, Professor Aslan H. Abashidze, points out, we are talking about an attempt to construct particular cases of individuals associated with their so-called "оrientation" to the rank of a global problem and also about giving them a legitimate character in the absence of any international legal framework. The requirement to legislate additional signs of nondiscrimination on the basis of "sexual orientation" and "gender identity" and to allow the registration of same-sex marriages, adoption/adoption of children by same-sex couples, etc., is unfounded from an international point of view. Professor Abashidze gives an example of a conversation with the nature of a paradox: "The ambassador of one of the African countries in Geneva witnessed a conversation between a diplomat from the UK and a diplomat from the countries of the former British colony. A diplomat from Great Britain rebuked a diplomat from a country—a former colony for the fact that same-sex marriage is criminalized in his country. In response to this reproach, the diplomat began to justify the position of his country, referring to the common law of Great Britain, according to which same-sex marriage is considered a crime against the human race (against nature of human), in other words, a more serious act than a criminal offense. And then the diplomat concluded: if Great Britain abandoned its own precedent, then his country is not obliged to do this, because it is no longer a British colony" (Abashidze and Klishas 2015, pp. 138–39).

However, at the international level, there is a lobby that is trying to create some special rights for LGBT persons, leading to a conflict with the international obligations of states to provide equal protection to all people, regardless of their sexual orientation, without any discrimination. The creation of special "rights" leads to a violation of the religious rights of Christians, including the right to live in accordance with their beliefs and not to participate in what is contrary to their religious beliefs—for example, in the registration of same-sex unions that are considered to be a grave sin. The Scripture defines sodomy as a mortal sin (1 Epistle to the Corinthians 6:9; Epistle to the Romans 1:26–27, 32). St. John Chrysostom in the 4th Homily on the Epistle of Apostle Paul to the Romans calls this sin the most serious of all sins (St. John Chrysostom n.d.). This doctrine is professed by the majority of Christian denominations (Orthodox, Catholics, most Protestant churches, including Seventh-Day Adventists, most Baptist, Methodist, and Pentecostal churches), the total number of which is more than 2 billion; see (Melton and Baumann 2010).

From a formal point of view, it is quite difficult to prove direct discrimination when a person is fired from work for Christian beliefs. Indirect discrimination is much more common when, for example, an employer implements a generally applicable policy, scheme, or practice that has a seemingly legitimate business purpose. Examples of indirect discrimination might include an internal requirement that all employees attend horse races with clients or a rule that requires all employees to wear badges or other similar items to support a cause that is contrary to Christian beliefs.14

At the same time, it should be recognized that the line between direct and indirect discrimination is not always clearly visible. Especially under the guise of "good goals", states remove cases of direct and indirect discrimination from the category of violations of the right to freedom of conscience. In this sense, the decision of the European Court of Human Rights (ECHR) in the case of Eweida and others v. Great Britain is illustrative (ECHR 2013). This case brings together four cases of discrimination against Christians for professing their faith (Ms Nadia Eweida, Ms Shirley Chaplin, Ms Lillian Ladele, and Mr Gary McFarlane). All cases relate to dismissal from work for professing the Christian faith, but in the context of this section of the article, it is important to consider two of them (Ms Lillian Ladele and Mr Gary McFarlane), which related to the "rights" of LGBT people.

In the case involving Lillian Ladele, the registrar of births, marriages, and deaths, she refused to register same-sex civil partnerships because it was contrary to her Christian beliefs. The ECHR found that the employer's requirement that all registrars be involved in registering same-sex civil partnerships had a harmful effect on L. Ladele, conflicting with her religious beliefs. However, the ECHR did not find a violation of Art. 9 of the ECHR in this case, since it considered that the policy of the local registration authority is aimed at ensuring the rights of others, who are also protected by the ECHR; therefore, the national authorities did not go beyond their discretion.

In this case, the position of the ECHR and the national authorities can hardly be considered adequate. L. Ladele never expressed any disrespectful attitude towards samesex couples. Of course, these couples did not know that she was informally negotiating with her colleagues to replace her in order not to participate in such registrations. In other similar local registration authorities, workers were allowed not to participate in registering same-sex civil partnerships due to their religious beliefs. Therefore, one can hardly talk about any discrimination against same-sex couples. Two judges of the ECHR, Vucinic and De Gaetano, who participated in this case, took this position (there was not any discrimination against same-sex couples).

In addition, it is important to note that when L. Ladele signed an employment contract when she was hired, there was no obligation to participate in registering same-sex civil partnerships. These requirements were introduced later. As a result, L. Ladele preferred to lose her job than to compromise with her conscience (Semenova and Kiseleva 2017, p. 59–66).

It appears that, in this case, there is no legitimate aim for interference with the law, and such interference cannot be considered "necessary in a democratic society". It should also be added that there is the state religion established in Great Britain—Anglicanism. In light of this fact, the refusal to protect the Christian beliefs of a citizen of the United Kingdom for the sake of sexual perversion that is contrary to the culture-forming religion looks at least strange.

<sup>14</sup> For more information on direct and indirect discrimination, see, for example, An Employer's Guide to Christian Beliefs. Christianity in the Workplace. Vienna, 2018, p. 12. Available online: https://adfinternational.org/resource/christianity-in-the-workplace-an-employers-guide-tochristian-beliefs/ (accessed on 20 December 2020).

In the case of G. McFarlane, the applicant worked as a consultant for a confidential sex therapy and relationship service. He was fired for refusing to counsel homosexual couples because he considered it incompatible with his religious beliefs. The ECHR found that his refusal to provide counseling for homosexual couples amounted to a practice of his religion and belief. However, the Court considered that the "policy of providing services without discrimination" was a legitimate purpose for interference with the law; therefore, the Court did not establish violations of Art. 9 of the ECHR.

These precedents give rise to well-grounded concerns, since the practice is being formed of refusing Christians to live and act in accordance with their religious beliefs, especially, in a culturally Christian country.

On the one hand, the member states of the Council of Europe are trying to provide additional guarantees to religious minorities, saying that this is an important step towards preventing religious persecution in the future. Thus, according to the Preamble of the 1995 Council of Europe Framework Convention for the Protection of National Minorities, the member states of the Council of Europe and other states signatory to this Framework Convention believe that "a pluralist and genuinely democratic society should not only respect the ethnic, cultural, linguistic and religious identity of each person belonging to a national minority, but also create appropriate conditions enabling them to express, preserve and develop this identity".<sup>15</sup> According to the position of the Council of Europe, "cultural diversity should be seen as a matter of enrichment rather than division" (Murdoch 2012, p. 15). "A Europe of much diversity and many faiths calls for special concern for the protection of the exercise of the freedom of thought, conscience and religion" (Murdoch 2012, p. 16).

On the other hand, the ECHR takes the directly opposite position, refusing to practice their religion not to a religious minority but to a religious majority, in order to defend the so-called "rights" of persons with non-traditional sexual orientation and in those cases where there is in fact no discrimination against these persons.

It is quite obvious that "in the same way that a national or ethnic identity cannot be 'switched off' at work, an individual should not be expected to leave their faith at home".<sup>16</sup>

However, it should be noted that there are positive trends in countries such as Poland. For instance, on 26 June 2019, the Polish Constitutional Court confirmed that service providers and business owners have the right to conduct their business in accordance with their religious beliefs, without being subject to criminal prosecution. The decision of the Constitutional Court overturned a previous decision of the Supreme Court of Poland, which upheld a criminal charge against the owner of a printing house in Lod Await, who refused to print documents advertising an event contrary to his conscience and was found guilty on the grounds that his religious beliefs were not a "just cause" for refusing to provide their services. The Constitutional Court noted that the words "without a valid reason" cannot be clearly defined; therefore, "punishment for refusing to provide services without a valid reason" in accordance with Art. 138 of the Polish Criminal Code constitutes a violation of the service provider's freedoms, particularly the freedom of contract, the right to express one's opinion or to act in accordance with one's conscience. The reporting judge added that the fight against discrimination cannot be fought at the expense of these freedoms. As a result, the Constitutional Court declared Article 138 of the Polish Criminal Code unconstitutional.<sup>17</sup>

This positive example is rather an exception to the rule, since, as noted by Robert Clarke, director of the European law firm ADF International, recently, the right to freedom of conscience

<sup>15</sup> Council of Europe Framework Convention for the Protection of National Minorities. Strasbourg, 2013. Available online: https://www.coe.int/en/ web/minorities/text-of-the-convention (accessed on 20 December 2020).

<sup>16</sup> An Employer's Guide to Christian Beliefs. Christianity in the Workplace. Vienna, 2018, p. 10. Available online: https://adfinternational.org/ resource/christianity-in-the-workplace-an-employers-guide-to-christian-beliefs/ (accessed on 20 December 2020).

<sup>17</sup> For more details, see Le Tribunal constitutionnel polonais se prononce en faveur de la liberté de conscience. Available online: https://adfinternational. org/news/polish-constitutional-tribunal-rules-in-favour-of-freedom-of-conscience-fr/ (accessed on 20 December 2020).

"has regularly been challenged in various countries in Europe. Across Europe, citizens are facing an impossible choice: either violate their conscience or face punishment by the state. This ranges from medical professionals to bakeries, who are forced to choose between their convictions and their profession. They risk criminal charges, fines, loss of reputation, and social discrimination. Nobody should face this simply for living in accordance with what they believe".18

Strange as it may seem, the reason for this state of affairs is the policy of tolerance. How this policy manifests itself can be traced in some quotes from the round table "Religion and Religious Freedoms in International Diplomacy", which was organized on 22 September 2016 by the UN Special Rapporteur on Freedom of Religion or Belief in cooperation with the World Council of Churches. Some examples are as follows: "Tolerance is not about ignoring other religions"; "One religion nourishes another. I am because you are"; "Without the Buddha, I may not be a Christian", etc.<sup>19</sup> It seems that these quotes do not require additional comments due to their obvious absurdity. However, for a correct understanding of the "policy of tolerance", it is important to briefly define the concept of the term "tolerance".

Regarding the concept of tolerance, it should be noted that in some languages, e.g., in Russian, there are two different terms translated into English by the same term "tolerance" (cf. in Russian "терпимость"—*terpimost* and "толерaнтность"—*tolerantnost*).

The first term "tolerance" ("*terpimost*") has Christian roots and is reduced to the commandment "Judge not, that ye be not judged" (Matthew 7:1). This commandment means that we have no right to condemn specific people for their sins. However, as Christians, we are obliged to condemn the very behavior or deeds as a sin, if the Holy Scripture testifies to it.

The second term, "tolerance" ("*tolerantnost*"), is derived from the medical term "tolerance", which was introduced in 1952 by the English biologist Peter Brian Medawar (who received the Nobel Prize "for discovery of acquired immunological tolerance"), namely the immunological state of the organism, in which he is not able to synthesize antibodies in response to the introduction of a specific antigen while maintaining immune reactivity to other antigens, cf. (Billingham et al. 1953). Complete tolerance is death.

After this term found its way into the humanities, it became interpreted in different ways. In Russian, two different terms easily show the difference, but in English, there is a confusion of concepts.

For the purposes of this study, it is important to point to the second term "tolerance", which means a calm, indifferent, incurious attitude towards any behavior of people, which does not directly affect their own rights and does not violate the current legislation (Semenova 2014, pp. 39–40). In other words, we can say that tolerance means not reacting to evil. Negative reaction to sin has been laid down in every human being since creation. However, with the departure from Christianity and, consequently, from the moral assessment of acts contrary to the Law of God (Semenova 2019, pp. 28–36), the mechanism of reaction to evil gradually atrophies, and a significant part of the Western European community does not see any problem in unnatural vices that are enshrined at the legislative level as a norm of behavior. Nevertheless, Christians who follow the moral law retain a negative reaction to sin, so they try to call on their fellow men to protect and preserve the traditional values of humankind, which have been the basis of European civilization. However, the response to this call is exactly the opposite.

Thus, at the universal level, in March 2016, the UN Committee on Economic, Social and Cultural Rights adopted General Comment No. 22 "On the Right to Sexual and Reproductive Health" (Article 12 of the ICESCR), which was already mentioned in the previous section of this article. Comment 22 not only promotes abortion but also nontraditional relationships at the level of all UN members. The Committee requires states to

<sup>18</sup> Ibid.

<sup>19</sup> Religion and Religious Freedom in International Diplomacy. Workshop Summary Brief. 22 September 2016. Available online: https://www.ohchr. org/Documents/Issues/Religion/WorkshopReligion.pdf (accessed on 20 December 2020).

ensure full respect for the representatives of the so-called "sexual minorities" in relation to their "sexual orientation, gender identity and intersex status" (paragraphs: 23, 30, 59, etc.).

It should be noted that General Comments are not binding but serve as a guideline in the fulfillment by states of their obligations under the covenant, since they usually express the agreed position of states in the understanding and interpretation of a specific enshrined right. With regard to Comment 22, it can be confidently asserted that the indicated position to consolidate the so-called "LGBT rights" cannot be considered universally recognized and agreed. In particular, the position of the Russian Federation and a number of countries of the Global South in solidarity with it expresses a harshly negative attitude towards such an interpretation, considering it absolutely unacceptable.

Unfortunately, the above examples confirm the general trend in the countries of the Global North with Christian roots, which the states of the Global South are gradually beginning to follow. As His Holiness Patriarch Kirill of Moscow and All Russia noted, secularism is the reason for the loss of Christian identity in Europe:

[S]upporters of the secular idea believe that rejection of religion serves the common good of all people. Along with religiosity, traditional moral values such as marriage, the union of a man and a woman, and the inviolability of human life from the moment of conception to natural death are rejected. Those who find the strength and courage to publicly criticize unnatural and moral permissiveness are accused of intolerance by representatives of the secular idea. We take to heart the situation in Europe, which was once a stronghold of Christianity, and is now rapidly losing its religious identity.<sup>20</sup>

It should be noted that the policy of tolerance and the loss of Christian values in the countries of the Global North is a more terrible persecution against Christians than all the combined prosecution and persecution of Christians in some parts of the Global South. As St. John Chrysostom wrote, the most terrible of persecutions is the absence of persecution. "While people are saying, "Peace and safety," destruction will come on them ... " (1 Thess. 5, 3). However, prosecution and persecution of Christians in the 21st century for professing their faith is an international crime.

### **4. Prosecution and Persecution of Christians in the Global South**

At the end of December 2017, a meeting dedicated to the safety of Christians in the Middle East and beyond was held in Vienna on the sidelines of the OSCE Council of Foreign Ministers, initiated by Russia and Hungary. The meeting was attended by representatives of OSCE member states, Orthodox and Catholic churches, as well as religious and public figures, diplomats, and journalists. During the meeting, it was noted, in particular that in the Middle East and North Africa, believers and clerics come under attack by terrorist groups and are forced to leave places their communities have lived in for centuries; instances of desecration or destruction of Christian shrines are not uncommon and go unpunished; in Ukraine, desecration and seizure of temples by extremists and violence against clergymen and believers are supplemented by the attempts of official authorities to impose restrictions on the activities of the canonical Ukrainian Orthodox Church.21

Today, the African continent unites 55 states with a population of over 1.3 billion people. According to available statistics, 46% of the African population is Christian, i.e., approximately 600 million people.<sup>22</sup>

<sup>20</sup> Patriarch Kirill named the reason for the loss of Christian identity in Europe. Available online: https://ria.ru/20191114/1560925226.html?in=t (accessed on 20 December 2020).

<sup>21</sup> Message for the media. OSCE, "On a joint Russian-Hungarian meeting at the OSCE on the safety of Christians in the Middle East and beyond", Available online: http://www.mid.ru/foreign\_policy/news/-/asset\_publisher/cKNonkJE02Bw/content/id/2981209 (accessed on 20 December 2020).

<sup>22</sup> In Africa, the number of Christians has exceeded the number of Muslims, Site of the Church Scientific Center "Orthodox Encyclopedia". Available online: https://www.sedmitza.ru/text/3200526.html (accessed on 20 December 2020).

Christian sacred history and sacred tradition are inseparable from the ancient and early medieval history of the countries of North and North-East Africa. In the Old Testament and the New Testament, we repeatedly find references to Africa. The Coptic Church in Egypt deserves special attention. In the Eastern Desert and Upper Egypt, famous monasteries were built and masterpieces of original Coptic architecture, icon painting, and literature were created. In Alexandria and Cyrenaica, Christian literary works were written in Greek (Vasiliev 2010, p. 882). Yet today, various media give us horrifying examples in Africa of cases of the murder of Christians, violence against Christian women, forced conversion of Christians to Islam, accusations of insulting Islam, often punishable by death, destruction of churches, persecution of Christians from historical lands. The escalation of violence against Christians has recently become systemic. The mass exodus of Christians from Africa could upset the centuries-old religious balance.

One of the obstacles for this issue to be properly addressed at the international level is the lack of a legitimate mechanism for collecting information. One can rely on data from various non-governmental organizations (NGOs).<sup>23</sup> For example, the NGO "Gatestone Institute" calls what is happening in Nigeria "the genocide of Christians"—in June 2018 alone, 238 people were killed.<sup>24</sup>

In 2014, France published the "Black Book on the condition of Christians in the world", with the contributions of 70 French and foreign experts, historians, journalists, priests, and human rights activists. According to the authors' estimates, 150–200 million Christians in 140 countries of the world have become victims of discrimination, and the Christian religion has become the most persecuted in the world.25

To be objective, we shall note that there are certain positive aspects of special protection of the rights of Christians. For example, in 2016, the Egyptian Parliament passed a law to facilitate the construction of new Christian churches in the country.<sup>26</sup> According to the provisions of this law, the governors of the provinces of Egypt must respond within four months to inquiries regarding the building of new churches submitted to them by the Christian communities. In the event of a refusal, the governor must provide valid arguments to justify his decision, and the community that was refused is entitled to appeal to the administrative courts. The new law, among other things, states, "the size of the church should correspond to the number of citizens belonging to the Christian community and should take into account population growth".

The new law, despite its imperfection, is a step forward from the so-called "10 rules" added in 1934 to Ottoman legislation by the Egyptian Ministry of the Interior, which prohibited, among other things, the construction of new churches near schools, canals, government buildings, railways, and residential areas. In many cases, the strict application of these rules resulted in refusals to the requests and the prohibition of constructing churches in cities and villages inhabited mainly by Christians, especially in the rural areas of Upper Egypt.

The UK-based "Open Doors" NGO has been trying to help Christians around the world for over 60 years. This organization maintains a database of violations of the rights of Christians and the so-called "black list of states" where Christians are most discriminated

<sup>23</sup> Among such NGOs are "Open Doors", "Aid to the Church in Need", "Christian Solidarity International", "Observatoire de la Christianophobie", "Gatestone Institute", Catholic agency "Agenzia Fides", Protestant fund "Varnava" and "International Christian Concern", portal of the Church Scientific Center "Orthodox Encyclopedia" Sedmitsa.ru, "Blagovest-info" agency.

<sup>24</sup> Extremist Persecution of Christians, Gatestone Institute. Available online: https://www.gatestoneinstitute.org/13312/pure-genocide (accessed on 20 December 2020).

<sup>25</sup> La religion la plus persécutée au monde? Le christianisme (The most persecuted religion in the world?—Chrisitianity). Available online: http://www.slate.fr/story/93959/christianisme%20 (accessed on 20 December 2020); Christianity—the most persecuted religion. Available online: https://inosmi.ru/world/20141103/224051622.html (accessed on 20 December 2020).

<sup>26</sup> Egyptian Parliament passed a law that facilitates the construction of new Christian churches in the country, Pravoslavie.By. Available online: http://www.pravoslavie.by/news/parlament-egipta-prinjal-zakon-oblegchajushij-stroitelstvo-novyh-hristianskih-hramov-v-strane (accessed on 20 December 2020).

against. Thus, four African states are in the top ten: Somalia, Sudan, Eritrea, and Libya.<sup>27</sup> Islamic terrorist groups operate in a number of African countries—for example, Boko Haram (in May 2014, the UN Security Council included it in the list of terrorist organizations).

From this perspective, the adoption on 12 February 2016 in Havana (Cuba) of a Joint Statement following the meeting between His Holiness Patriarch Kirill of Moscow and All Russia and His Holiness Pope Francis is of great importance. Paragraph 8 of the Joint Statement states the following:

"Our eyes are primarily fixed upon those regions of the world where Christians are being persecuted. In many countries in the Middle East and North Africa, the whole families, villages and cities of our brothers and sisters in Christ are being destroyed. Their temples are subjected to barbaric destruction and plundering, their shrines desecrated and their monuments—destroyed".<sup>28</sup>

Do not forget that the functions of NGOs are limited. It is extremely important to discuss this problem in the international arena within the framework of interstate or expert forums, so that states listen and pay attention to the oppression of Christians. For this, there are special international human rights mechanisms, which include UN human rights treaty bodies, Universal Periodic Review (UPR), special procedures under the UN Human Rights Council.

For instance, in 2015, a joint statement was adopted by 65 States<sup>29</sup> Supporting the Human Rights of Christians and Other Communities, particularly in the Middle East"30, which was pronounced at the initiative of the Russian Federation, Holy See, and Lebanon in the course of the 28th session of the UN Human Rights Council. Among other things, this Joint Statement called on all states of the world "to reaffirm their commitment to respect the rights of everyone, in particular the right to freedom of religion, which is enshrined in the fundamental international human rights instruments".

For example, in Sudan, Christians have been persecuted for many years. In 2014, a Sudanese court sentenced a pregnant woman who converted to Christianity to death by hanging, which sparked a new wave of controversy over the punishment for apostasy in the country.<sup>31</sup> The international community is trying to combat these terrible phenomena in Sudan. Sudan has ratified the 1966 International Covenant on Civil and Political Rights, and the Human Rights Committee, after considering its periodic report in 2018, noted the following: On the one hand, the President of the Sudan granted amnesty to the Czech Christian activist Petr Jasek, who had been convicted of espionage, but on the other hand, expressed concern about restrictions, in law and practice, imposed upon the right to freedom of conscience and religious belief, including reports of the destruction of churches. For many years now, the international community has been asking Sudan to repeal Article 126 of the Criminal Code on the crime of apostasy. Although Sudan explains in response that in the entire history of law enforcement, there have only been four cases of prosecution

<sup>27</sup> The Open Doors World Watch List is an in-depth record of the 50 countries where it is most difficult to live as a Christian, Open Doors. Available online: https://www.opendoorsuk.org/persecution/countries/ (accessed on 20 December 2020).

<sup>28</sup> Joint statement of Pope Francis and His Holiness Patriarch Kirill, 12 February 2016, Havana, Official website of the Moscow Patriarchate. Available online: http://www.patriarchia.ru/db/text/4372074.html (accessed on 20 December 2020).

<sup>29</sup> Joint statement by the Russian Federation, Holy See, Lebanon, Albania, Andorra, Argentina, Armenia, Australia, Austria, Belarus, Belgium, Bosnia and Herzegovina, Brazil, Bulgaria, Canada, the Czech Republic, Congo, Croatia, Cuba, Cyprus, Denmark, El Salvador, Estonia, Finland, France, Germany, Greece, Guatemala, Haiti, Honduras, Hungary, Iceland, Iraq, Ireland, Israel, Italy, Japan, Liechtenstein, Luxemburg, Macedonia, Mali, Malta, Monaco, Netherlands, Norway, Panama, Paraguay, Peru, Philippines, Poland, Portugal, the Republic of Korea, Romania, San Marino, Serbia, Slovakia, Slovenia, Somalia, Spain, Switzerland, Syria, the United Kingdom, the United States of America, Venezuela, Zambia.

<sup>30</sup> Joint statement by 65 States "Supporting the Human Rights of Christians and Other Communities, particularly in the Middle East" pronounced at the initiative of the Russian Federation, Holy See and Lebanon in the course of the 28th UNHRC session, Geneva, 13 March 2015, Official website of the Ministry of Foreign Affairs of the Russian Federation. Available online: http://www.mid.ru/foreign\_policy/humanitarian\_cooperation/-/ asset\_publisher/bB3NYd16mBFC/content/id/1092273 (accessed on 20 December 2020); Joint Statement on "Supporting the Human Rights of Christians and Other Communities, particularly in the Middle East" at the 28th Session of the Human Rights Council, Geneva, 13 March 2015, Holy See Press Office website. Available online: https://press.vatican.va/content/salastampa/it/bollettino/pubblico/2015/03/13/0186/00415.html (accessed on 20 December 2020).

<sup>31</sup> Death Sentence in Sudan: apostasy controversy, 16 May 2014. Available online: https://www.bbc.com/russian/society/2014/05/140515\_sudan\_ death\_penalty\_apostasy (accessed on 20 December 2020).

for apostasy and that only open proselytizing is criminalized; the Committee reiterates that such practices are incompatible with Articles 18–19 of the International Covenant on Human Rights and recommended to repeal article 126 of the Criminal Code and amend legislative provisions that violate freedom of thought, conscience, religion, and expression. Moreover, the UNHRC recommended that Sudan refrain from interfering in worship by persons who do not follow the official religion (Islam is the predominant religion at 90.7% of the population while Christianity forms 5.4% of the population)—for example, by destroying places of worship—if the interference is not based strictly on the requirements of necessity and proportionality.32

In this regard, it should be noted that 21 countries provide criminal responsibility for apostasy, and in 12 countries—Afghanistan, Brunei, Islamic Republic of Iran, Yemen, Qatar, Mauritania, Malaysia, Maldives, Nigeria, United Arab Emirates, Saudi Arabia, and Somalia—apostasy is punished, ultimately, with death penalty33.

However, on 14 December 2014, Reverend Yat Michael Ruot Puk, a pastor from the Southern Sudan Evangelical Church, was arrested by National Security Service officers. On 11 January 2015, Reverend Peter Yein Reith was arrested at his residence. Both clergymen were arrested without any arrest warrant and were held incommunicado until 1 March 2015. On 4 May 2015, they were brought before a court, where they were both charged with undermining the constitutional system, waging war against the state, espionage, unlawful disclosure and receipt of official information or documents, arousing feelings of discontent among regular forces, breach of public peace, and offenses relating to insulting religious beliefs. Following these charges and subsequent hearings on 19 and 31 May 2015, both pastors were allegedly moved to a high security prison in North Khartoum. They were last seen by their families and pastors from their church on 3 June 2015.34 This fact is in contravention of Articles 18, 19, and 20 of the Universal Declaration of Human Rights.

Such violations are not uncommon and are reported on an ongoing basis by the UN Independent Expert on the Human Rights Situation in the Sudan35, which keeps the situation under the constant control of the international community.

Moreover, in relation to Sudan, the UN Independent Expert36 received information about arrests and restrictions on freedom of religion or belief of members of Christian communities.37 The independent expert noted that he had received numerous complaints in relation to the conviction of Mariam Ibrahim on charges of apostasy. She was subsequently released from custody by the decision of the Court of Appeal. The independent expert urged Sudan to fully respect the right to freedom of religion without discrimination of any kind.38

Moreover, the issues of discrimination against Christians in Sudan have been the subject of consideration in the regional African system of human rights protection. In 1999, the African Commission on Human and Peoples' Rights considered a lawsuit filed by the Association of Member Episcopal Conference in Eastern Africa for the oppression of Sudanese Christians and religious leaders; expulsion of all missionaries from Juba;

<sup>32</sup> Human Rights Committee, Concluding observations on the fifth periodic report of the Sudan, UN Dosc. CCPR/C/SDN/CO/5, 19 November 2018, paras. 49–50. Available online: https://tbinternet.ohchr.org/\_layouts/15/treatybodyexternal/Download.aspx?symbolno=CCPR/C/SDN/CO/ 5&Lang=En (accessed on 20 December 2020).

<sup>33</sup> Humanists International. The Freedom of Thought Report 2019: Key Countries Edition. 2019. Available online: https://fot.humanists.international/ download-the-report/ (accessed on 29 December 2020).

<sup>34</sup> Report of the Independent Expert on the situation of human rights in the Sudan. A/HRC/30/60, paras, 30–31, 24 August 2015. Available online: https://undocs.org/ru/A/HRC/30/60 (accessed on 20 December 2020).

<sup>35</sup> Independent Expert on the situation of human rights in the Sudan. Available online: https://www.ohchr.org/EN/HRBodies/SP/ CountriesMandates/SD/Pages/IESudan.aspx (accessed on 20 December 2020).

<sup>36</sup> Summary prepared by the Office of the United Nations High Commissioner for Human Rights in accordance with paragraph 15 (c) of the annex to Human Rights Council resolution 5/1 and paragraph 5 of the annex to Council resolution 16/21—Sudan. 2016, UN Doc. A/HRC/WG.6/25/SDN/2. Available online: https://digitallibrary.un.org/record/823938?ln=ru (accessed on 20 December 2020).

<sup>37</sup> Report of the Independent Expert on the situation of human rights in the Sudan, Aristide Nononsi, 2015, UN Doc. A/HRC/30/60, par. 30. Available online: https://digitallibrary.un.org/record/804337 (accessed on 20 December 2020).

<sup>38</sup> See Report of the Independent Expert on the situation of human rights in the Sudan, Mashood A. Baderin, 2014, UN Doc. A/HRC/27/69, paras. 29, 43. Available online: https://digitallibrary.un.org/record/780607?ln=ru (accessed on 20 December 2020).

arbitrary arrests and detention of priests; the closure and destruction of Church buildings; the constant harassment of religious figures, and prevention of non-Muslims from receiving aid.<sup>39</sup>

Investigations revealed that Christians were persecuted and forced to convert to Islam, prevented from preaching or building their churches, experienced limited freedom of expression in the national press, Christian clergy were subjected to harassment, arbitrary arrest, expulsion, and denial of access to work and food aid, and food distribution in prisons was not equal (Christian prisoners were blackmailed for food). Having considered all the evidence presented, the African Commission concluded that Sudan did not provide any evidence or excuses and, accordingly, violated Art. 8 of the 1981 African Charter on Human and Peoples' Rights that guarantees freedom of conscience and free exercise of religion (para. 76).40

Religious discrimination has been increasing over the last 15 years, but in interregional comparison, sub-Saharan Africa has a low level of discrimination. High levels of discrimination are embedded in problematic state–religion relations and existing cleavages become mobilized along religious lines through transnational influences and geography; see (Basedau and Schaefer-Kehnert 2019).

Religious violence is increasingly becoming a concern across sub-Saharan Africa. Failure to stem one can lead to the emergence of the other. While there may be several underlying factors in conflict or violence that do not have religious roots, the resulting divisions could forever alter Christian–Muslim and Muslim–Muslim relations. Currently, an effective response to address religious violence from secular states is lacking. The failure of international leaders of the Global North to understand African politics results in failed policies; see (Lado and Lynch 2014).

There are similar trends in the Middle East and Asia. Several mass killings by ISIS have targeted other religious groups in the Syrian Arab Republic, including Christians. More broadly, minority religious communities have been severely affected by the civil war in the Syrian Arab Republic, with the estimated Christian community declining from 360,000 in 2012 to 25,000 today41.

Hmong Christians live mainly in the northern provinces of Vietnam, along the border with Laos and China. Their exact number is unknown. According to various estimates, it ranges from 120 thousand to 500 thousand people. In Vietnam, Hmong and Montagnar Christians cannot obtain the necessary registration documents for citizenship.

In accordance with the principles of international humanitarian law, places of worship are under special protection during armed conflicts. Deliberate attacks on such objects are a war crime. For example, Jurgen Strup, who blew up a synagogue in Warsaw during World War II, was sentenced to death by the Warsaw Regional Court several years after the war. It is not always possible to bring to justice those responsible for committing such crimes. After the NATO war against Yugoslavia and the transfer of Kosovo and Metohija under the control of NATO troops, local Albanians began to destroy Serbian religious and cultural sites throughout the province. According to the letter of the Patriarch of the Serbian Orthodox Church Pavel from 2002 to the Special Representative of the UN Secretary General in Kosovo, Michael Steiner, and the Commander-in-Chief of the International Peacekeeping Forces in Kosovo (KFOR), General Marcel Valentin, after the peacekeepers entered Kosovo, the local Albanians destroyed more than 120 Orthodox churches, some of which were of medieval origin and part of the world cultural heritage (Guskova 2001).

According to Art. 8 (2) (e) (iv) of the Rome Statute, on the basis of which the International Criminal Court operates, one of the types of war crimes is "intentionally directing

<sup>39</sup> Amnesty International, Comité Loosli Bachelard, Lawyers' Committee for Human Rights, Association of Members of the Episcopal Conference of East Africa, Sudan. Available online: https://www.achpr.org/sessions/descions?id=106 (accessed on 20 December 2020).

<sup>40</sup> Ibid.

<sup>41</sup> See Bishop of Truro's Independent Review for the Foreign Secretary of FCO Support for Persecuted Christian. Available online: https:// christianpersecutionreview.org.uk/report/ (accessed on 20 December 2020).

attacks against buildings dedicated to religion, education, art, science or charitable purposes, historic monuments, hospitals and places where the sick and wounded are collected, provided they are not military objectives".42

The UN Secretary General presented the United Nations Plan of Action to Safeguard Religious Sites in September 2019.43 The plan was developed under the leadership of the High Representative of the Alliance of Civilizations in close collaboration with governments, religious organizations, civil society, and the private sector. The document contains specific recommendations for the protection of religious sites and the promotion of values such as tolerance and compassion.

### **5. Conclusions**

Over the past 75 years, an independent branch has been formed within the framework of international law—international human rights law—which is based on the principle of respect for human rights and fundamental freedoms, including freedom of thought, conscience, and religion; a significant international legal framework has been created that guarantees the observance of the rights to freedom of conscience, thought, and religion; systems of statutory and treaty control mechanisms at the UN level have been developed and are operating, as well as similar regional structures, within the framework of which states report on the fulfillment of their obligations to implement the right to freedom of thought, conscience, and religion and are responsible in case of violations of the rights of specific individuals. However, despite all these important achievements of modern international law, the problem of Christians exercising their right to freedom of thought, conscience, and religion is acute in many countries of the world.

The term "Christianophobia" is widely used in the international arena. All types of discriminatory violations by states of the right of Christians to freedom of conscience, thought, and religion can be basically divided into direct discrimination (persecution, prosecution) and indirect discrimination (when seemingly neutral norms actually exclude Christians from entire spheres of professional activity).

We show that the absence of a fight against discrimination against Christians in the Global North leads to the spread of this phenomenon in the Global South.

As follows from the conducted research, in a number of countries of the Global South, Christians continue to be persecuted and killed just because they are Christians. Sudan is a prime example.

In other countries of the Global South, which largely follow the practice of the countries of the Global North, Christians are not killed for their faith but are deprived of their right to work, just because they want not only to remain Christians by name but also to be guided by their conscience in their actions, including at the workplace and in the performance of professional duties. Moreover, this happens under various kinds of "apologetic" pretexts. Thus, the right to life, the right to private life of a woman, which includes the "right to abortion," is placed unequivocally higher than the right to life of an unborn child. If Christian healthcare providers are not willing to accept this, they commit themselves to abandoning their medical practice in the field of obstetrics. Active propaganda and promotion of the so-called "LGBT rights" result in discrimination against Christians when they are forced to participate in what they consider to be evil and sin. If they refuse, they are subject to sanctions up to a dismissal and a fine. At the same time, human rights bodies are substituting concepts in the analysis of discrimination, absolutizing and looking for remedies for the "right to abortion" and "LGBT rights" instead of analyzing different treatment of people with and without Christian convictions.

This trend can be clearly seen in the practice of the Council of Europe, followed by a number of countries in the Global South. On the one hand, the member states of the

<sup>42</sup> Rome Statute of the International Criminal Court (Rome, 17 July 1998). Available online: https://www.icc-cpi.int/resource-library/documents/rseng.pdf (accessed on 20 December 2020).

<sup>43</sup> The United Nations Plan of Action to Safeguard Religious Sites. Available online: https://www.un.org/sg/sites/www.un.org.sg/files/atoms/files/ 12-09-2019-UNAOC-PoA-Religious-Sites.pdf (accessed on 20 December 2020).

Council of Europe try to provide additional guarantees to religious minorities. On the other hand, the ECHR takes the directly opposite position, refusing to practice its religion not to a religious minority but to a religious majority, in order to protect the so-called "rights" of persons with a non-traditional orientation and in those cases where discrimination against these persons is in fact absent.

It is extremely important to discuss problems of discrimination of Christians in the Global South at the international arena within the framework of interstate or expert forums so that states listen and pay attention to the oppression of Christians. For this, there are special international human rights mechanisms, which include UN human rights treaty bodies, Universal Periodic Review (UPR), special procedures under the UN Human Rights Council.

In order to counteract the above phenomena, it seems important to implement a whole range of measures: to abolish laws that undermine the exercise of the human right to freedom of religion or belief, including the withdrawal of reservations to international human rights treaties that are incompatible with freedom of religion or belief; introduce principles of universality, non-discrimination, and equality, participatory decision-making methodology, the obligation to ensure accountability, and the recognition of the interdependence of rights in policymaking; take steps to empower religious minorities so that they can claim the exercise of all their human rights and fundamental freedoms; enact comprehensive anti-discrimination legislation prohibiting direct and indirect discrimination, harassment, and lack of reasonable accommodation based on religion and all other grounds recognized in international law and in all areas of life regulated by law.

It seems that both direct and indirect discrimination on the basis of religion is unacceptable in democratic rule-of-law states of the 21st century. States are obliged to stand up for Christians, reaffirming by deeds the interrelation and indivisibility of all human rights.

**Author Contributions:** Conceptualization, N.S.S., E.V.K. and A.M.S.; Methodology, N.S.S., E.V.K. and A.M.S.; Validation, N.S.S., E.V.K. and A.M.S.; Formal Analysis, N.S.S., E.V.K. and A.M.S.; Investigation, N.S.S., E.V.K. and A.M.S.; Resources, N.S.S., E.V.K. and A.M.S.; Data Curation, N.S.S., E.V.K. and A.M.S.; Writing—Original Draft Preparation of Section 2, E.V.K., of Section 3, N.S.S., of Section 4, A.M.S.; Writing—Review & Editing, N.S.S., E.V.K. and A.M.S.; Project Administration, N.S.S.; Funding Acquisition, N.S.S. All authors have read and agreed to the published version of the manuscript.

**Funding:** This research was funded by the Russian Foundation for Basic Research, grant number 18-011-00292.

**Institutional Review Board Statement:** Not applicable.

**Informed Consent Statement:** Not applicable.

**Data Availability Statement:** Not applicable.

**Conflicts of Interest:** The authors declare no conflict of interest.

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