A Writ Petition in the nature of P.I.L. was filed before the Allahabad High Court challenging the constitutional validity of the U.P. Government's controversial Ordinance, namely, Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020. The petition was filed by Advocates Devesh Saxena (Managing Partner), Shashwat Anand (Legal Consultant and Advisor), and Vishesh Rajvanshi.
The petition states that the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 is both morally and constitutionally repugnant and merely serves a political purpose & is motivated by communally divisive agendas to impact societal peace & harmony.
The said Ordinance was promulgated by the U.P. Government on 27.11.2020, soon after the Chief Minister of U.P. declared in his campaign during the Malhani Bypoll in District Jaunpur that his government would bring an “effective law” against “love jihad” (a slur politically used by the Hindu right-wing to target inter-faith relationships and marriages involving a Muslim man), and further issued a “warning” to those who “played with the honour” of “sisters and daughters” by concealing their identities and operating secretly, and further issued a threat that if they did not mend their ways, then their “Ram Naam Satya Yatra” (funeral processions) would be taken out.
The said ordinance has been passed and is being implemented in much haste and reckless manner without ensuring that the same does not curb one’s Fundamental Rights or hamper the national integration instead. This ordinance has completely failed to strike a balance between freedoms and mala fide conversions.
Section 3 of the Ordinance prohibits one person from converting the religion of another person by marriage. In another words, religious conversion by marriage is made unlawful. Violation of this provision is punishable with imprisonment for a term which is not less than one year but which may extend up to 5 years and a fine of minimum rupees fifteen thousand. If the person converted happens to be a woman, the punishment is double the normal term and fine. These provisions giving State policing powers over a citizen's choice of life-partner or religion militate against the fundamental rights to individual autonomy, privacy, human dignity and personal liberty guaranteed under Article 21 of the Constitution.
Moreover, the aforesaid provisions, inter alia, are antithetical to the law laid down by the afore-mentioned Division Bench judgment dated 11.11.2020 passed by Allahabad High Court in Salamat Ansari & 3 ors. v. State of U.P. and ors. [Cri. Misc. Writ Petition No. 11367 of 2020], wherein it was held that, “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. Interference in a personal relationship, would constitute a serious encroachment into the right to freedom of choice of the two individuals…….... Neither any individual nor a family nor even the state can have an objection to the relationship of two major individuals who out of their own free will are living together."
The Ordinance assumes a 'tone-deaf' position to this latest ruling of the High Court, which is in line with the expansive meaning given to 'personal liberty' by the Supreme Court in its decisions in K. S. Puttaswamy (privacy case), Navtej Johar (decriminalization of Section 377IPC), Joseph Shine (decriminalization of adultery), Shefin Jahan (Kerala Hadiya case) and Shakti Vahini (Khap Panchayat) cases.
The Ordinance leads to an unreasonable intrusion into the domain of a personal autonomy. The provisions mandate an advance notice of a 60 days 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.
The petition states, "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. In most of these cases, it is the parents who complain that their daughter has been fraudulently enticed into a relationship and is a victim of forced conversion. This makes the Ordinance an instrument of harassment in situations where interfaith marriages are voluntary."
The provisions contained in the Ordinance have the potential to give state sanction and administrative support to the societal hostilities which persons intending to have inter-faith marriages face. Numerous petitions filed in High Courts seeking police protection for inter-faith couples denote the level of community threat and social ostracism that they have to face. The provisions of the Ordinance energize the community groups and reinforce the social asymmetries to further dis-empower an individual.
Further, the State action falters when it comes to the tests of 'need' and 'proportionality'. There is no factual foundation for the public utterances about 'love-jihad’. Therefore, it is beyond one’s understanding as to what were those compelling circumstances which forced the State to bring this law using emergency executive powers when 'love jihad' remains merely a concept with only blurred contours, as it simply crops up from religious stereotypes being devoid of any factual evidence.
The petition further states, "the effect of such a law will be to bring a shadow of criminality over every inter-faith marriages. The law empowers disgruntled family members to slap criminal cases on couples who got married defying their diktats. Since, as per Section 12, the Ordinance reverses the burden of proof by forcing the accused to prove innocence in trial, complaints could be prosecuted at the mere ipse dixit of the infuriated family members even without any evidence."
Such a law will lead to a grossly disproportionate result by terrorizing inter-faith couples and by deterring such marriages. Most importantly, the practice of converting religion just for the sake of marriage might at worst be termed as “ethically objectionable”, however, the same cannot be criminalised. The penal provisions of the Ordinance against conversions for marriage militate against the core concepts of criminal jurisprudence.
Moreover, there have been a slur of cases cropping up where the police is registering cases under the aide of the Ordinance dated 27.11.2020 without even checking the veracity of the claims or allegations in a complete mechanical and arbitrary manner, and the same should not be permissible in the eyes of law.
Therefore the petition states that, provisions of the Ordinance dated 27.11.2020 are completely arbitrary, perverse, unreasonable and erroneous in law, besides being violative of principles of Article 14, 19, 21 and 25 of the Constitution of India and thus, the same should be declared ultra-vires the constitution.
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