24, Nov 2022 | Sohini Chowdhury
The Supreme Court, on Tuesday, agreed to hear the petitions challenging the Freedom of Religious Acts introduced by some States Legislatures in the name of ‘love jihad’ against religious conversions for the sake of marriages.
Senior Advocate, Mr. C.U. Singh, appearing on behalf of social activist Teesta Setalvad’s NGO ‘Citizens for Justice and Peace’, one of the petitioners, mentioned the pleas before a Bench comprising the Chief Justice of India, D.Y. Chandrachud, Justice Hima Kohli and Justice J.B. Pardiwala, for urgent listing.
“These are challenges to the Freedom of Religion Acts…”
The CJI enquired –
“What is the next date?”
Mr Singh apprised him –
“No indicated date.”
To demonstrate urgency in the matter, Mr. Singh informed the Bench that the Court had already decided the issue of right of change of faith being a part of fundamental right of choice in Shafin Jahan‘s matter [Shafin Jahan v. Asokan K.M. And Ors. Criminal Appeal No 366 of 2018]
The CJI assured the Senior Counsel that he would provide a specific date for hearing the matter.
“We will give a date.”
The petitions mentioned by Mr. Singh, specifically, challenges the constitutional validity of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020 and the Uttarakhand Freedom of Religion Act, 2018.
Notice was issued by the Apex Court in this batch of petition in January 2021.
Later, by way of an amendment application similar laws introduced by Madhya Pradesh and Himachal Pradesh were also challenged.
The CJP, in its PIL filed through Advocate Tanima Kishore, has contended that the provisions of the impugned Act and Ordinance, both violate Article 21 of the Constitution as it empowers the State to suppress an individual’s personal liberty and impinge upon an individual’s right to freedom of choice and right to freedom of religion.
It is averred that the “right to convert” oneself to another religion is manifested in Article 25 of the Constitution. But, the said Ordinance and the Act is in the teeth of this right as it imposes unreasonable and discriminatory restrictions 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.
Another PIL filed by lawyers Vishal Thakre, Abhay Singh Yadav and Pranvesh prays that these laws made in the name of “love jihad” be declared null and void because it is against the basic structure of the Constitution.
The Uttarakhand Freedom of Religion Act was enacted in 2018 with the stated objective “to provide freedom of religion by prohibition of conversion from one religion to another by misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage and for the matters incidental thereto“. If any person comes back to his “ancestral religion“, it shall not be deemed conversion under the Act, as per proviso to Section 3. As per Section 6 of the Act, marriages done for sole purpose of conversion can be declared null and void on a petition filed by either party to the marriage.
The UP Ordinance is modeled mostly on the Uttarakhand legislation. However, the UP Ordinance specifically criminalizes conversion by marriage.
Section 3 of the Ordinance prohibits one person from converting the religion of another person by marriage. In other 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.
Subsequently, another petition was filed challenging the Madhya Pradesh Freedom of Religious Ordinance, 2020 for blatantly and flagrantly violating Articles 14, 19, 21 and 25 of the Constitution of India.
The petition is filed by Advocate on Record, Aldanish Rein and drawn by Advocates Rajesh Inamdar, Shashwat Anand, Devesh Saxena, Ashutosh Mani Tripathi and Ankur Azad.
The petition also assails the process of passing the impugned Ordinance as “a textbook example of blatant abuse of the powers vested under Article 213 of the Constitution” and a “fraud on the Constitution”
It highlights the absence of requisite data available with government agencies or departments on the “forced conversions” as stipulated in the Ordinance. The petition argues –
“The law which seeks to preserve the power asymmetries in the existing social hierarchies negates the concept of transformative constitutionalism by coercing an individual to lay down his treasured fundamental rights before the State-sponsored status quo. Furthermore, the law acts as a juggernaut for hateful, divisive and schismatic propaganda by fanning communal passions, and this Hon’ble Court must denounce it and strike it down to the abyss of oblivion.”
The original piece may be read here