CJP Urges Supreme Court To Stay Provisions Of Anti-Conversion Laws Mandating State Sanction To Change Religion

The Supreme Court bench comprising Chief Justice DY Chandrachud and Justice PS Narasimha on Monday adjourned the batch of petitions challenging religious conversion laws in various states. 

Senior Advocate CU Singh appearing for Citizen for Peace and Justice (CJP) submitted that the petitioners were seeking interim relief with respect to the Acts in Uttarakhand and Himachal Pradesh. The senior counsel pointed out that in 2012, the Himachal Pradesh High Court had struck down the provisions which mandated prior sanction from the District Magistrate for religious conversion. However, in 2019, the very same provisions were re-enacted. He submitted that such mandate to seek permission for conversion violates right to privacy.

"Section 3 of the 2006 Freedom of Religion Act of Himachal Pradesh was struck down by a division bench on account of right to privacy. The Himachal Pradesh government accepted the judgment and then 2019 Act was enacted which is more stringent than the 2006 one. This falls foul of 4-5 judgments at least, including Navtej Johar and Puttaswamy. I have culled out several passages in a note. In my submission there can be no answer to this because the Constitution Bench of Supreme Court has held that right to choose a partner is a part of privacy. These laws reverse the burden. It is on the persons who have converted saying that it was without coercion. Unless one month notice is given or police investigation is there in choosing partner then there is 3 years jail. On 17th Feb your lordships allowed us to amend and bring in other states. Meanwhile state after state is following suit. Maharashtra said they'll investigate all (inter-faith)relationships, not just marriages."

Senior Advocate Indira Jaising submitted that Gujarat and Madhya Pradesh High Court have passed detailed interim orders staying provisions which required intimation of intention to marry or intention to convert. Apprising that the Special Leave Petition filed by the State of Gujarat against the HC order is pending in the Supreme Court, she requested that all the matters be transferred to the Supreme Court from the High Courts. She sought permission to file a transfer petition in this regards.

The bench stated that it required clarity regarding what petitions were filed against which laws. At this juncture, Additional Solicitor General KM Natraj submitted that–

"Each state has a separate Act being considered by that High Court."

The UP Additional Advocate General stated that petitions challenging the UP law are  pending in the Allahabad High Court.

CJI DY Chandrachud stated that the bench had not yet taken a final call on whether the petitions were to be transferred to the Supreme Court or not. However, he clarified that the bench required some clarity regarding the matter. He stated–

"We require clarity – which are the petitions which are pending here, which are the acts which are under challenge here, and what is the position of the matters in their respective High Courts. If the provisions are para materia then we have three options– first, we allow all high courts to decide on their own and allow SLPs to come here thereafter; second, bring all petitions to one High Court; third, bring every thing here and we dispose of finally."

He clarified that the bench had not yet taken a call regarding which course of action it would adopt. The CJI further clarified that in order to take a call regarding the course of action, the bench would first need to understand the entire matter and have an overview regarding the same. Accordingly, he stated–

"We will adjourn this by two weeks, give us a note and tell us which plea was amended and what is the prayer and what is under challenge. Let Sr Adv Jaising also file the transfer plea. We need to see at what stage are the cases. If cases are for admission then one thing, but if arguments have made then of course we may have a different view. Please include this in the note as well."

While flagging another issue, Sr Adv Singh also added–

"There is another aspect I would like to flag. What happened was in 1977, in Rev. Stainislaus, a five judge bench stated that the word propagate was virtually written out of the Constitution. So now what has happened is, pursuant to your lordships judgement in Puttaswamy etc, that judgement has lost a great deal of its efficacy. Justice Dipak Gupta in Himachal Pradesh pleased to distinguish it. And now it is no longer just your choice of faith, it is also partner."

The bench reiterated that it would not pass any order as of yet and requested the counsels to submit a note regarding the matter. Therefore the matter was adjourned. 

CASE TITLE: Vishal Thakre And Ors. v UoI WP(Crl) No. 405/2020, Citizens for Justice and Peace vs UoI

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