Breaking- Plea In Allahabad High Court Challenges UP Government's Ordinance On Religious Conversions "In The Name of Love Jihad"

Advocate Saurabh Kumar has moved the High Court stating that the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 is both morally and constitutionally repugnant.

He has urged the Court to declare this law as ultra vires the Constitution and in the interim, direct the authorities not to take any coercive action in pursuance thereof.

On October 31, the Chief Minister of Uttar Pradesh, Yogi Adityanath, had made a statement that his government will bring a law against 'love-jihad', a term used to discredit marriages between Muslim men and Hindu women as part of a conspiracy to cause the conversion of Hindu women. During his public statement, the Chief Minister referred to a single bench judgment of the Allahabad High Court in the case Priyanshi @ Kum Shamreen and another v State of UP which observed that religious conversion just for the sake of marriage was invalid.

Significantly, a few days later, a division bench of the High Court overruled the single bench verdicts which had disapproved religious conversions for the sake of marriage. (Salamat Ansari & Ors. v. State of UP & Ors.)

Also Read: Upholding Love : In Last One Month, Allahabad High Court Grants Protection To Over 125 Inter-Faith/Caste Couples

"Right to live with a person of his/her choice irrespective of religion professed by them, is intrinsic to right to life and personal liberty", the division bench comprising Justice Pankaj Naqvi and Justice Vivek Agarwal observed while holding the single bench judgments as not good in law.

Nevertheless, the impugned Ordinance was brought into force on November 27, 2020.

In this backdrop, the Petitioner has submitted that the impugned Ordinance assumes a 'tone-deaf' position to the latest ruling of the High Court in Salamat Ansari case, which is in line with the expansive meaning given to 'personal liberty' by the Supreme Court in its decisions in KS Puttaswamy v. Union of India (Right to privacy judgment).

In Right to privacy case, the Top Court had laid down a three-fold test to determine whether any State action violates the fundamental right to privacy. The three criteria to be met are: 'legality', 'need', and 'proportionality'.

The Petitioner has submitted that the passing of the Ordinance could satisfy the first condition of 'legality', however, the State action falters when it comes to the tests of 'need' and 'proportionality'.

Significantly, Section 3 of the Ordinance prohibits one person from converting the religion of another person by marriage. Section 4 enables any person related to the converted person by blood or marriage or adoption to lodge an FIR against the conversion. Section 6 empowers Courts to declare any marriage as void if it is done for the sole purpose of unlawful conversion or if unwlaful conversion is done for the sole purpose of marriage.

It is submitted that these provisions give the State "policing powers over a citizen's choice of life-partner or religion" and thus, militate against the fundamental rights to individual autonomy, privacy, human dignity and personal liberty guaranteed under Article 21 of the Constitution.

Also Read: UP Ordinance Criminalizing Religious Conversion By Marriage Is An Assault On Personal Liberty

The impugned Ordinance also requires every religious conversion to be scrutinized and certified by the state.

As per its provisions, an advance notice of a 60 days has to be given to the District Magistrate before the intended conversion, which is to be followed by a police enquiry into the circumstances of conversion. The religious priest doing the conversion is also required to give such prior notification. After the conversion, the person has to appear before the District Magistrate for confirmation. The authority will notify the conversion and will invite public objections, before confirming the conversion.

Taking exception to this, the Petitioner has submitted that the very concept of forcing an individual to explain and justify a decision, which is closely personal to him/her, before an officer of the State is contrary to Constitutionalism.

"The Constitution imposes limitations on State power and burdens the State to explain and justify the decisions taken by it affecting the rights and lives of citizens. The Ordinance inverses this equation," the plea states.

It adds,

"obligation to seek permission for conversion two months in advance is fundamentally arbitrary and a violation of the 'right to privacy'. The state has no role to play in the personal choice of individuals in consummating a union and embracing the religion of the partner. The state can certainly regulate acts of forced conversion but the starting point of such regulation has to be a complaint made by the individual who opts to convert."

The Petitioner has relied upon the Supreme Court's verdict in Shefin Jahan v. Asokan KN, (2018) 16 SCC 368, where it was held that the right to change of faith is part of fundamental right of choice and "the consent of the family or the community or the clan is not necessary once the two adult individuals agree to enter into a wedlock".

The plea points out that Section 12 of the Ordinance reverses the burden of proof inasmuch as a person who has caused the conversion is liable to prove that such conversion was not effected through misrepresentation, force, undue influence, coercion, etc.

Raising concern over this, the Petitioner has submitted that the effect of such a law will be to bring a shadow of criminality over every interfaith marriage.

"The law empowers disgruntled family members to slap criminal cases on couples who got married defying their diktats…complaints could be prosecuted at the mere ipse dixit of the infuriated family members even without any evidence," the plea filed though Advocates Devesh Saxena, Shashwat Anand and Vishesh Rajvanshi states.

It may be noted that this Ordinance, along with Uttarakhand's Freedom of Religion Act, 2018 have already been challenged before the Supreme Court by Advocates Vishal Thakre, Abhay Singh Yadav and Pranvesh. The PIL prays that these laws made in the name of "love jihad" be declared null and void because "they disturb the basic structure of the Constitution".

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