18, Dec 2020 | Akshita Saxena
Another public interest litigation (PIL) has been filed in the Supreme Court, challenging the constitutional validity of the laws passed by the states of Uttarakhand and Uttar Pradesh on religious conversions in the name of “love jihad”.
The PIL has been filed by a Mumbai based NGO, Citizens for Justice and Peace, against the recently promulgated Uttar Pradesh Prohibition of Unwlaful Conversion of Religion Ordinance 2020 and the Uttarakhand Freedom of Religion Act, 2018, ostensibly prohibiting forceful prohibition of conversion for the purposes of marriage.
The Petitioner-organization has contended that the provisions of the impugned Act and Ordinance, both violate Article 21 of the Constitution as it empowers the State to supress an individual’s personal liberty and impinge upon an individual’s right to freedom of choice and right to freedom of religion.
It has submitted,
“The Act and Ordinance seemed to be premised on conspiracy theories and assume that all conversions are illegally forced upon individuals who may have attained the age of majority. It mandates that a series of complicated procedures to be followed before and after conversion, taking the State into confidence to “ensure” that the act was an informed and voluntary decision by the individual. These provisions in both the impugned Act and Ordinance place a burden on individuals to justify their personal decisions for State approval.”
The impugned Act and Ordinance are also said to be opposed to individuals’ right to privacy inasmuch as individuals have to approach the District Magistrate to validate their conversion for purpose of marriage or otherwise.
It is further submitted that the “right to convert” oneself to another religion is manifested in Article 25 of the Constitution. However, the Ordinance and the Act impinge upon this right by imposing unreasonable and discriminatory restrictions on it by mandating that the administration be informed of such intention and a probe be launched in such a personal and intimate exercise of one’s right.
“That the Sanatan Hindu faith while not obviously proselytizing have, also from the period of Early India to Medieval India, by co-option absorbed those from Adivasi, Indigenous and Subaltern Faiths that were not until this co-option “Hindu.” Hence as a necessary corollary of the group right of a religion to propagate, an individual must have the right to convert to any religion other than his own,” the plea stated.
Reliance is also placed on Salamat Ansari & Ors v. State of Uttar Pradesh & Ors., where the Allahabad High Court recently 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. To disregard the choice of a person who is of the age of majority would not only be antithetic to the freedom of choice of a grownup individual but would also be a threat to the concept of unity in diversity.”
The impugned laws are also said to be antithetical to right to equality and right against discrimination under Articles 14, 15 and 16 of the Constitution because under the said Act and Ordinance, only residents of Uttar Pradesh and Uttarakhand will be subject to such inquiry and State intervention if and when they decide to convert from one faith to the other.
The Petitioner-organization has referred to the Law Commission’s 235th report titled ‘Conversion/ reconversion to another religion – mode of proof’ where it stated that “The reason for or propriety of conversion cannot be judged from the standards of rationality or reasonableness.”
- By making no exception for cases registered under the Special Marriage Act, 1954, which is a central act, both the ordinance and the Act are hit by repugnancy and hence liable to be struck down;
- The act and ordinance seek to shift the burden of proof on the person accused of the crime thereby equating these acts, which are otherwise not criminal acts, to acts of terror;
- The Act and ordinance fail to appreciate that the Constitution of India grants equality, liberty and freedom and as matters or right and these legislations encourage surveillance and grant unbridled powers to law enforcement;
- Both the Act and Ordinance are inherently anti women and discriminate against women, giving them no agency whatsoever and are therefore bad even on this count.
- The petition has been filed by AOR Tanima Kishore
A group of lawyers from Delhi, namely Vishal Thakre, AbhaySingh Yadav and Pranvesh, have already challenged the validity of these laws before the Top Court. 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“.
A writ petition has also been filed before the Allahabad High Court challenging the UP Government’s Ordinance.
The Original Piece may be viewed here