Invoking Section 144 of the Code of Criminal Procedure (CrPC) against individuals conducting religious activities on their property would infringe upon their fundamental right to practice, profess and propagate religion, the Bombay High Court at Goa held on Friday [Joan Mascarenhas E D’Souza v. State of Goa].

A Division Bench of Justices Mahesh Sonak and Valmiki SA Menezes made the observation while granting relief to a Christian couple accused of carrying out religious conversion activities on their property in Siolim.

In its order, the Court noted that Articles 25 and 26 guarantee to all persons the equal entitlement of freedom of conscience and the right to profess, practice and propagate religion.

“The right conferred upon a citizen to profess and propagate religion correspondingly casts a duty on the State and the Executive to ensure that every person should be allowed to freely practice, preach or profess his belief. The State has a duty to extend all possible protection to its citizens, through free speech and the freedom of expression, enshrined in Article 19(1) of the Constitution of India to indulge in public discourse and to propagate religious practice,” the Court said.

All persons, the Court added, have a fundamental right to form an institution, purchase property for their use and to profess and propagate religion.

The Court was hearing a petition filed by a woman challenging the imposition of Section 144 order by the District Magistrate (DM).

The authorities had alleged that she and her husband had been forcibly converting people to Christianity.

The DM’s order also prohibited the couple from continuing with religious activities on their own property, as it was contended by the authorities that it would lead to communal tension.

From the material on record, the Bench noted that there was no such complaint that the couple forced or coerced others to convert into any religion or Christianity as such. It noted that the Section 144 order does not cite a single incident or particulars of forced conversion being indulged in by the petitioners.

“In any event, if such was the allegation on a complaint before the Police authorities, there are other penal laws that could deal with such complaints against the Petitioner, and that by itself could not be a cause for the District Magistrate to exercise jurisdiction under Section 144,” the order stated.

The conclusion that the petitioner and her husband are carrying out religious activities which have raised communal tensions in the village or that they are involved in religious conversion by means of allurement or fraud, appears to be totally baseless, the Court said.

The petitioner and her husband are within their rights to propagate their own religion and to profess it in any manner that they please within the bounds of law, more so, when it is within their own private property, the Court added.

“We are of the opinion, that by claiming to exercise jurisdiction under Section 144 and prohibiting the petitioner and Domnic from carrying out any religious activities in their property, is a direct violation of their fundamental rights enshrined in Article 19(1), Articles 25 and 26 of the Constitution of India, as it seeks to deny them both of their freedom of speech and expression and to their freedom of conscience and the right to freely profess, practice, propagate their religion or form religious institutions,” the bench ruled.

With these observations, the Bench quashed the Section 144 order.

Advocate Ankur Kumar appeared for the petitioner. Additional Government Advocate Pravin Faldessai represented the State.