The South Asian Law Discussion Group, in conjunction with the Socio-Legal Discussion Group, hosted Dr. Jahid Bhuiyan, Associate Professor of Law at Northern University, Bangladesh for a talk on ‘Proselytisation and Religious Freedom in Bangladesh’. Dr. Farah Raza, a stipendiary lecturer at Pembroke College, University of Oxford was the primary discussant. 

Dr. Bhuiyan’s research studies the freedom to proselytise under the Constitution of Bangladesh against the framework of religious freedom in international human rights law. Although proselytisation is not expressly protected by any international human rights treaty, Dr. Bhuiyan argues that proselytization falls within the right to manifestation of religion. Proselytism is considered central to religious freedom because believers of their faith often feel the obligation to share their path to the divine. This was endorsed in Kokkinakis v Greecewhere the ECtHR observed that freedom to manifest one’s religion comprises the right to make efforts to convince one’s neighbour.  However, the case drew a distinction between proper and improper proselytisation. If, proselytisation is motivated by the right reasons and not encouraged through material benefits, states should promote the freedom to proselytise. Therefore, the extent to which this freedom is protected is far from settled even in international law. 

While Islam is the state religion, Article 41 of the Constitution of Bangladesh provides the right to freedom of religion. Interestingly, Article 41 is identical to Article 25 of the Constitution of India, which on the other hand, is a secular country. Provisions of the Penal Code 1860 (identical to the colonial-era Indian Penal Code 1860) are relied upon to target proselytisation. The Digital Security Act 2018 punishes electronic material that hurts religious beliefs with imprisonment of 10 years and a fine of 1 million. Therefore, charges can be pressed for a variety of online and offline activities. 

While the freedom to proselytise has not been addressed under Article 41 of the Constitution of Bangladesh, Dr. Bhuiyan advocates for its constitutional status on two grounds. First, a similar question was addressed in the affirmative under Article 25 of the Constitution of India. The freedom to propagate one’s religion includes the ability to spread the truth about one’s own faith. However, this fundamental right does not extend to forcible conversions. This distinction is resoundingly similar to the distinction between proper and improper conversion drawn in Kokkinakis. This claim raises an interesting jurisprudential question – does the identical language of Article 41 and Article 25 provide a sufficient ground for similar interpretation in the otherwise distinct constitutional orders of Bangladesh and India, respectively?

Second, the Constitution of Bangladesh is silent on the applicability of international law. In BNWLA v Bangladesh, the Supreme Court ruled that in the absence of any direct provision in the domestic law, international law can be followed. Equally, in Bangladesh v Sheikh Hasina, the Court ruled that an international treaty is not automatically enforceable unless international law is made part of the domestic law. On the basis of the freedom to proselytise under international human rights treaties, Dr. Bhuiyan claims that there is scope to argue that the proselytisation is already protected under Article 41. 

Dr. Bhuiyan concluded his presentation by taking stock of the situation at hand and offering suggestions for better protecting the freedom to proselytise. The government should ensure that operational difficulties such as visa hurdles are not posed to Christian missionaries invited to Bangladesh. Further, law enforcement agencies should promptly respond to punish violence inflicted against minorities. This would call for increased commitment of human and financial capital.  

Dr. Farah noted that Dr. Bhuiyan’s research addressed three contemporary themes that pose global challenges. First, the issue underscores the duties of the state in protecting the rights of religious minorities. While freedom from persecution is certainly granted, how far should states go in protecting minorities is an open-ended question, especially when minorities pose a challenge to the state’s normative order. Second, the scope of the right to promote one’s own religion is controversial. She drew a contrast between cases such as Dahlab v Switzerland and Leyla v Turkey (where a prohibition on wearing a headscarf to educational institutions was upheld to avoid influencing other people) and Lautsi v Italy (where the display of a crucifix in public school classrooms was permitted) to argue that there is a cultural aspect to the extent of religious freedom enjoyed by different communities. Finally, she observed that across the subcontinent, religious rights were legal issues contested through political realities. 

With increasing polarisation and oppression of minorities across the sub-continent, Dr. Bhuiyan’s timely research brings forth an interesting parallel. It opens opportunities for further comparative research in addressing challenges that are faced by religious and cultural minorities in the area.