"All Conversions Can't Be Said To Be Illegal' : Supreme Court Refuses To Stay MP HC Order Against Declaration Before DM To Change Religion

However, the bench of Justices M. R. Shah and C. T. Ravikumar refused to stay the impugned order.

Finding this provision to be prima facie unconstitutional, the HC division bench of Justice Sujoy Paul and Justice Prakash Chandra Gupta, on 14.11.2022, further directed the state to not prosecute the adult citizens if they solemnise the marriage of their own volition.  

Solicitor General of India Tushar Mehta: "Here, the pith of the Act is stayed despite a similar provision being upheld by a Constitution bench of this court. Section 10 of the Act. The High Court goes wrong”

Justice Shah: “The Section is not stayed, the action under section 10 is stayed”

SG: “Yes, On the ground that there is one stay granted by the Gujarat High Court. Section 10(1) says any person who desires to convert shall submit a declaration to that effect 60 days prior to that conversion in prescribed form to the district magistrate stating that he desires to convert on his own without allurement, coercion, undue influence. There is no penal consequence. Subsection (2) says any religious priest or person who intends to organise conversion will give 60 days prior notice. Giving of notice is upheld by the Constitution bench. Kindly see (4). Penal consequence is not on the person who converts. Whoever contravenes the provisions of subsection (2) will be punished with imprisonment. So under 10(1), he is supposed to intimate the collector”

Justice Shah: “Which is the judgment under which it is upheld?”

SG: “1977 1 SCC 677. This very Act of Madhya Pradesh incidentally is involved”

Justice Shah: “That is the 1968 act. That provision was somewhat different. 10(1) was not there”

SG: “But the intimation provision was there”

Justice Shah: “No, intimation only with respect to converting any person, not the person who is being converted. 10(1) is a different person”

SG: “10(1) is where I am converting myself so I will intimate”

Justice Shah: “such a provision was not there in the 1968 act”

SG: “The provision in the 1968 Act says whoever converts any person from one religion to another either by performing any ceremony by himself for such conversion as a religious priest or takes part directly or indirectly in such ceremony shall take prior permission for such proposed conversion from the District Magistrate concerned by applying in such form as may be prescribed"

Justice Shah: “it is para materia to 10(2)”

SG: “In the CB judgment, your lordships had said, 'we have no doubt that it is in the sense that word ‘propagate’ in article 25(1) has been used, for what the article grants is not the right to convert but to transmit or spread by an exposition of its tenets. Article 25(1) guarantees freedom of conscience to every person and not merely the followers of one particular religion and that in turn postulates that there is no fundamental right to convert one person to one’s own religion because if one person purposely undertakes conversion to his religion as opposed from his efforts to transmit or spread the tenets of his religion, that would impinge on the freedom of conscience guaranteed to all citizens of India alike'”

SG: “If you look at the reasoning of the High Court in the impugned order, it looks to an interim order passed by the Gujarat High Court which is subject matter of SLP before your Lordships. The basis of judgment in Stainislaus has been totally given a go by and the HC is Relying upon Puttaswamy. The HC says that a Similar enactment was introduced by the government of Gujarat and a division bench of the Gujarat High Court headed by chief Justice has protected the petitioner; that a Similar protection is prayed for by the present petitioner‘s counsel. The High Court is pleased to reread Kesavananda Bharati, Puttaswamy, Joseph Shine- which do not deal with conversion issue. There can’t be any objection to marriage, but marriage resulting in conversion? And what does it require? It requires intimation to the district magistrate. There is no penal consequence provided. This will set a precedent for the nation. We cited a judgment that at the stage of interim relief, there is a presumption of constitutionality, you cannot stay the effect of the provision also! Conversion takes place in two forms broadly- one is organised conversion, and the other is by way of allurement which is by marriage which is the form of allurement. The conversion in the country, your lordships can take judicial notice, is based upon the marriage. You marry a person outside your religion and convert that person”

Justice Shah: “before the High Court, it was a PIL?”

SG: “Yes, not an affected person”

The bench then proceeded to dictate its order: “SG Tushar Mehta has taken us through provisions of section 10 of the Madhya Pradesh freedom of religion act 2021 which reads as under:…. He has also taken us through section 5 of the earlier legislation namely the MP Dharma Swatantrya Adhiniyam 1968. It is submitted that the vires and constitutional validity of section 5 of the act 1968 was the subject matter of challenge before this hon’ble court and the Constitution bench of this court in the reported decision in the case of 1977 1 SCC 677 has upheld the constitutionality/vires of this earlier legislation. It is submitted that Section 5 of the 1968 act is para materia to section 10(2) of the act 2021. It is further submitted by the SG that so far as section 10(1) of the 2021 act is concerned, any person who desires to convert is required to submit a declaration to that effect 60 days prior to such conversion in the prescribed form to the district magistrate stating that he desires to convert on his/her own free will and without any force, coercion, undue influence or allurement. It is submitted that on contravention of the provisions of subsection (1), no penal consequences is provided under the act of 2021 and that as per 10(4) of the 2021 Act, the penal consequences are provided only with respect to the contravention of the provision of subsection (2) of section 10 of the act 2021. It is submitted that therefore in view of the decision of the Constitution bench of this court in the case of Stainislaus, upholding the vires of section 5 of the 1968 Act which is para materia to section 10(2) of the 2021 act, the High Court has seriously erred in staying section 10 of the act 2021. It is submitted that looking to the larger public interest for which the act 2021 has been enacted to safeguard against the unlawful and illegal conversions by coercion, undue influence or allurement, it is required to consider the issue involved and the order of stay granted by the High Court regarding section 10 of the 2021. Considering the aforesaid aspects, the issue involved is of greater public importance, notice returnable on 13th February, 2023”

SG: “There is no prohibition to conversion. The only requirement under 10 is you intimate the magistrate. If you fail, there is a penal consequence. So would your lordships consider staying the impugned order? The apprehension is…”

Justice Shah: “That would be tantamount to allowing the SLP. We will consider on next date”

SG: “That is what the High Court has done, it has allowed the petition virtually”.

Justice Shah: “By granting stay, we will allow the SLP. The High Court has not allowed the petition. We can keep it earlier also if you want?”.

SG: “The problem is then in every state, persons can marry and convert without facing any penal consequences”.

Justice Shah: “So far as the person to be converted is concerned, there is no penal consequence”.

SG: “But the person who performed the conversion…”

Justice Shah: “We’ll consider it. If you want, we can keep it earlier”

SG: “The difficulty is that such orders have been replicating in the country…”

Bench (amending its order): Notice on SLP and notice on interim relief. Make it returnable on 7th Feb”

SG: “Your lordships may say that the responsibility to intimate the magistrate will continue. Let them marry but let them intimate the district magistrate, what objection can one have? That is all that section 10 says. There is no prohibition against marriage or conversion, you intimate the district magistrate so that he has an occasion to ensure there is no allurement, force, coercion”.

Justice Shah: “Suppose we say that they may intimate but no coercive action will be taken for contravention?”.

SG: “So that is why I am saying that your lordships’ staying this order will only mean they have to intimate. You are not prohibiting any marriages”.

Justice Shah: “10(2) is penal…”

SG: “If I am a priest, if I have to participate in an illegal conversion, penal provision would have to be there”

Justice Shah: “But all conversions cannot be said to be illegal conversions”.

SG: “I am not saying that. Even penal provisions start after some time. Generally we don’t press. But this is a national issue. If your lordships say 'no penal consequences', it will seem like a seal of approval. This will have a tendency of lingering and being replicated in other states”

Justice Shah: “We are ready to say that intimation may be given”.

SG: “Your lordships may say that only without giving any seal of approval that no penal consequences. Let them intimate. Because marriage is used for conversion. We cannot shut our eyes as a society”

Justice Shah: “We’ll do it next time”.