By Prof Upendra Baxi
Rajendra Bihari Lal and Another vs State of Uttar Pradesh and Others (delivered on October 6, 2025) is a very important Supreme Court of India (SCOI) decision reaffirming the secular character of the Indian Constitution against the battle cry of those who believe and urge that the term “secularism” inserted in the Preamble, by the 42nd Amendment during the infamous internal emergency of 1975-76 should be deleted. One must distinguish though between what I have termed constitutional secures from political secularism, a distinction that was quoted verbatim in the Bommai case (1994, per Dr Jeevan Reddy, J).
Constitutional “secularism” does not disable legislation that protects religious values judicially considered as “essential practices of religion” [EPR]. Inbuilt into EPR test is the high judicial duty of upholding constitutional rights of conscience and EPR pursuits guaranteed to all Indian citizens and persons within the jurisdiction of India.
Constitutional secularism “does not extend patronage to any particular religion. The State is neither ‘pro’ any particular religion nor ‘anti’ any religion”. The State “maintains neutrality in matters of religion” and provides via EPR equal protection to all religions subject to reasonable restrictions on the grounds of “morality”, “public health” and “other constitutional provisions of this part”.
Which, whose, and why “morality ” may determine my right to conscience and EPR has proved a contentious issue, but the judicial discourse now responds to these questionings according to the doctrine of “constitutionals morality” of legislation and public policy involved. And in keeping with the time-tested 75-plus years judicial policy of self-restraint not to invalidate the entire law as unconstitutional, the decision does not problematize the power of the State to make laws and policies. Yet, at the same time, it reiterates the limits on this power.
THE TWO AVATARS: BLURRING THE LUMINESCE OF DIFFERENCE BETWEEN PROSECUTION AND PERSECUTION?
Before the Court was an amendment of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Bill, 2021, whose main object was to give “meaningful” effect to the constitutionally guaranteed right of religious freedom by ensuring that gullible persons are not converted from one religion to another by use of “misrepresentation, force, undue influence, coercion, allurement or fraudulent means”. No doubt, the last six words as applied to so-called gullible (vulnerable) persons offer many a conceptual minefield, but the SCOI does not here tarry awhile on that!
Rather, it is concerned here with the two avatars of Section 4. The first stipulated that “any aggrieved person, his/her parents, brother, sister, or any other person who is related to him/her by blood, marriage or adoption may lodge a First Information Report (FIR) of such conversion which contravenes the provisions of Section 3”. However, the second avatar was an amendment (2024) that enlarged the scope by adding the words “any person”.
The “Statement of Objects and Reasons” of the Bill invoke the protection of the dignity and social status of women, and to alleged activities of foreign and “anti-national” elements and organisations leading to “unlawful religious conversion” and “demographic change”. Even if one concedes the need for a stronger anti-conversion law, does this inclusion of “any person” in the Bill legitimise direct involvement of vigilante groups or anyone who otherwise objects to an act of religious conversion? Further, it remains eminently arguable that constitutional guarantees of the rights of the Article 25 (fundamental rights to freedom of conscience, and ERP), stand endangered by this amendment, disturbing and even destroying the balance between religious freedom and forced conversion. In effect, the Amendment impermissibly obliterates the distinction between prosecution and persecution.
IS THE NATIONAL ADJUDICATIVE TIME TO BE DEDICATED TO AN EXAMINATION OF FIRS?
In this case, an elaborate examination of many FIRs was undertaken on various grounds for which there exist ample judicial precedents. One may still ask: is it a fair use of national judicial time to oblige the SCOI with a duty to consider carefully the constitutionality of all the FIRs? Are the police and the prosecutors not bound by any prior constitutional obligation to ensure that only manifestly constitutional FIRs are registered?
Should the prosecution have a license to act “mechanically and without due care”(ordue diligence), totally unmindful of the proverbial judicial delays? Can the police and prosecution be authorised to convert the process into punishment during criminal justice administration? The fundamental duty of all citizens, under Part IV-A of the Constitution, is to develop “the scientific temper” and the “spirit of reform”, not to speak here of the duty to develop excellence in all walks of life, mandates this interlocution by each and every citizen, not as a matter of rights but also of constitutional obligation of Part IV-A.
SUGGESTIVE JURISPRUDENCE
But before Justices JB Pardiwala and Manoj Misra, the validity of 2004 Amendments was not a direct issue, yet they made certain observations concerning the “conspicuous” nature of the involvement and interference of government authorities in the process of “religious conversion”. In a revival of the practice of (what I have named as) “suggestive jurisprudence”—the power to make constitutional suggestions for State practices of legislation and enforcement processes. We know about the power of constitutional suggestions by the Court in such diverse areas such as sexual harassment, use of firecrackers, people’s right to know, freedom of information, and Holi ragging in campuses and other public places.
In suggestive jurisprudence, the Court expresses, descriptively “thick” normative concepts which are action-oriented towards a rigorous fidelity to the observance of the Constitution by all organs of governance and people of India whose core duty is to uphold the basic values of the Preamble, and especially Parts 111, IV, and IV-A of the Constitution. Far from constituting any notoriously alleged judicial overreach, suggestive jurisprudence extends to situations of constitutional underreach and often of no reach at all!
We, the people of India, who gave this Constitution 75-plus year ago have always welcomed suggestive jurisprudence for better enlargement of core human rights and for a more anxious, and studious, enhancement of the Directive Principles of State Policy. Suggestive jurisprudence is also a desperate adjudicative response—a judicial crie de Coeur—anguished can’t help of constitutional adjudicatory policy.
This was clearly reflected again in this case: “The constitutional validity of the provisions of the UP Conversion Act does not fall for our consideration in the instant case. Nonetheless, we can’t help but observe that the provisions of the said Act pertaining to the pre- and post-conversion declaration seem to introduce a very onerous procedure to be followed by an individual seeking to adopt a faith other than the one he professes”. Furthermore, “the statutory requirement of making public the personal details of each person who has converted to a different religion may require a deeper examination to ascertain if such a requirement fits well with the privacy regime pervading the constitution” [Para 55], under the right to privacy under Article 21 of the Constitution, as enunciated recently in Justice Putuswamy’s case (2017). But an act of “suggestive jurisprudence” merely paves the way for later “deeper” examination of constitutionality of the legislative validity of an Act, or its Amendment. In this context, the SCOI notes the “conspicuous involvement and interference of the State authorities in the conversion procedure, with the District Magistrate having been legally obliged to direct a police enquiry in each case of intended religious conversion”. The statutory requirement of “making public the personal details of each person who has converted to a different religion may require a deeper examination to ascertain if such a requirement fits well with the privacy regime pervading the constitution”.
It is crucial to highlight that the Court considered it fit to point to the Preamble and the secular nature of Indian Constitution and again declared that the Preamble is extremely important and the Constitution should be interpreted in the light of its “noble and grand” vision [Para 56]. It also underscored that though the word “secular” was inserted into the Constitution through an amendment in 1976, secularism is an intrinsic part of the basic structure of the Constitution as was held in the 1973 world-making decision in Kesavananda Bharati vs State of Kerala. The Court emphatically added that people of India are given the liberty of thought, expression, belief, faith and worship and that the liberty is an embodiment and expression of the secular nature of the country, providing for social welfare and reform [Para, 56, 57].
One of the cases filed by a member of Vishwa Hindu Parishad (VHP) was registered against 35 names and 20 unknown accused pertained to an alleged event of mass religious conversion at the Evangelical Church of India in Fatehpur’s Hariharganj. In another case, the Vice-Chancellor (VC) of Sam Higginbottom University of Agriculture, Technology and Sciences (SHUATS), Dr Rajendra Bihari Lal, was made an accused. In the judgment dated October 17, the top court quashed the case of religious conversion against Lal and others. In total, the Court quashed five FIRs. Regarding the sixth FIR, the Court found that the Allahabad High Court had committed an error in refusing to quash charges of illegal religious conversion. It allowed the case to proceed only in respect of other charges under IPC, stating that the matter needs further consideration. However, the SCOI clarified that “insofar as FIR for the alleged offences under Sections 307, 386 and 504 of the IPC respectively are concerned, the matter requires further consideration once all the relevant documents are brought on record and is thus ordered to be de-tagged from the present batch, during which period the interim protection granted… earlier by this Court shall continue till the matter is finally heard and decided.”
Commenting on the evidence in one of the cases of religious conversion, the SCOI found the affidavits submitted by the victim-witnesses to have been prepared in a cyclostyled manner, with the “same draft having been copied and pasted after changing their personal details”. It also questioned how the statements of certain witnesses, who had neither undergone conversion nor been at the place of alleged mass conversion, could help the prosecution case”. Importantly, it observed that the criminal law cannot be allowed to be made “a tool of harassment of innocent persons, allowing prosecuting agencies to initiate prosecution at their whims and fancy, on the basis of completely incredulous material”.
MINDWARE AND SOFTWARE
Although the judicial “mindware” (roughly put, cultural software) is distinctly different than the legislative mindware, the SCOI did not quite cognise two different concepts of liberty: liberty as non-interference and liberty as non-dominance, put forth by political philosopher Philip Petit in his germinal work, Republicanism: A Theory of Freedom and Government (1997). Yet, the power of suggestive jurisprudence lies precisely here: while legislatures may at times justifiably interfere with liberties specially as ordained by a democratic and republican constitution, it may not seek to exercise sheer domination, or a mere will to power.
Perhaps, it is high time, in an era celebrating 75-plus years of constitutionalism that we begin to realize that political theory and constitutional jurisprudence are Siamese twins, as I have striven to demonstrate, since my The Indian Supreme Court and Politics (1980).
—The writer is an internationally-renowned law scholar, an acclaimed teacher and a well-known author in the pursuit of Part IV-A fundamental duties of all Indian citizens