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"It Allows State To Police And Mediate Choices Of Consenting Adults As To Their Life partner": Two More PILs In Allahabad High Court Against Love Jihad Law

Akshita Saxena
17 Dec 2020 2:57 PM GMT
It Allows State To Police And Mediate Choices Of Consenting Adults As To Their Life partner: Two More PILs In Allahabad High Court Against Love Jihad Law
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Two PILs have been filed in the Allahabad High Court against the controversial ordinance law passed by the UP Government in November this year, to prohibit religious conversions in the name of 'love jihad'. Earlier, a petition was filed by Advocate Saurabh Kumar, challenging the constitutional validity of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion...

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Two PILs have been filed in the Allahabad High Court against the controversial ordinance law passed by the UP Government in November this year, to prohibit religious conversions in the name of 'love jihad'.

Earlier, a petition was filed by Advocate Saurabh Kumar, challenging the constitutional validity of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020.

Plea In Allahabad High Court Challenges UP Government's Ordinance On Religious Conversions "In The Name of Love Jihad"

All the three pleas are likely to be listed for hearing tomorrow, before a Division Bench of Chief Justice Govind Mathur and Justice Piyush Agrawal.

One of the two writ petitions has been filed by one Ajit Singh Yadav, through Advocates KK Roy and Ramesh Kumar and the other one is filed by a retired government servant, Anand Malviya through Advocate Talha Abdul Rahman.

The Petitioners have submitted that there were no emergent grounds for the Governor to exercise her law-making power under Article 213 of the Constitution. It is submitted,

"The Ordinance making power is the most important legislative power of the Governor which has been vested in him to deal with unforeseen or urgent situations. But the State has been failed to explain and show urgency.

The Ordinance has been promulgated in the pretext of breach of Public Law and Order but no data/survey or studies has been done in this regard by the State which reflect emergence of Urgent situation."

Reliance is placed on RC Cooper v. Union of India, (1970) SCR (3) 530, where it was held that President's decision to promulgate Ordinance could be challenged on the ground that 'immediate action' was not required.

The Petitioners pointed out that in one year, around 36,000 inter-faith marriages have been solemnized in India and about 6,000 of such marriages were solemnized in Uttar Pradesh. However, the State fails to mention that how many such cases posed a threat to the law-and-order situation.

In this backdrop it is alleged that it has become a general Phenomenon of the UP Government to exercise the power under Article 213.

"In the year 2019-20 around 14 Ordinance has been promulgated and re-promulgated by the State. It is the infringement of Principal of Separation of Powers because of the power of executive to issue Ordinance which goes against the Principal of Separation of Powers as Law making is the domain of Legislature," the plea states.

Another important issue raised by the pleas is that the impugned Ordinance was promulgated 'illegally' inasmuch as it is in teeth with an authoritative pronouncement of the High Court in Salamat Ansari & Ors. v. State of UP & Ors., whereby a Division Bench overruled the single bench verdicts that had disapproved religious conversions for the sake of marriage.

It is submitted that the right course of action for the UP Government would have been to file an appeal against the said judgment but the State proceeded to "abuse" its powers under Article 348(1) of the Constitution, instead.

Inter alia, it is contended that Section 3, 5, and 6 of the Ordinance confers unbridled 'policing power' to the State over a citizen's choice of life partner or religion, and it thus militates the fundamental rights to individual autonomy, privacy, human dignity and personal liberty guaranteed under Article 21 of the Constitution.

It is alleged that after promulgation of the impugned Ordinance, the State Police has lodged cases against various couples marrying with their own consent as well as the consent of their family members.

"The Police has unnecessarily interfered in between the solemnization of the marriage ceremony and violated their fundamental rights to choice and harassing and defaming them and their family members."

It is further alleged that one hidden purpose of the impugned ordinance is to control the sexuality of women and treat the human body as a subject of subjugation and it is also gender biases which curves the exercise of the free will of the women in the matter of selection his/her life partner.

It is submitted,

"A plain reading of Section 6 of the Impugned Ordinance assumes that only a man will convert a woman and regards women as objects and does not recognise the individual agency of women that stands on an equal footing."

On the provisions requiring notice to the Magistrate and other follow ups before intended conversion, the plea states,

"provisions have the potential to give State Sanction and administrative support to the societal hostilities to the persons intending to have inter-faith marriages for numerous petitions filed in the High Court seeking police protection for inter-faith couples the level of community threat and social ostracism which they have to face. The provisions of the ordinance energize the community groups and reinforce the social asymmetries to further dis-empower an individual."

Other grounds:

  • Impugned Ordinance is discriminatory as it creates a "hostile discrimination" between two sects of religious groups and thus violates Article 14 of the Constitution.
  • The stringent punishment prescribed for contravention of the imagined Ordinance is against the Jurisprudence of penology.
  • The reverse burden of proof on the accused under the Ordinance is against the Doctrine of Criminal Judicial System as well as Indian Evidence Act, 1872.
  • Right to freedom of religion under Article 25 of the Constitution gives all persons the complete entitlement of freedom of conscience and the right to freely profess practice and propagate any religion but this right is violated by the Ordinance.
  • Impugned ordinance has the characteristics of diluting the provisions of the law enacted by the parliament such as the CrPc, IPC, Special Marriage Act 1954, the Hindu Marriage Act, 1955, the Shariat Application Act 1937, the Indian Christian Marriage Act 1872, etc.
  • Recognition of validity of marriages cannot have any connection with the religious conversion of the person, and since the Ordinance does so, it violates the principle of anti-subordination and dignity of individual and her choice.
  • Impugned Ordinance takes away judicial discretion from the Family Court concerned to adjudicate on the issue of consent and marriage, and mandates that any such marriage would be void.
  • Ordinance violates India's obligation under international law which have now all been read into the fundamental rights under the Part III of the Constitution of India. Such instruments include UDHR, ICCPR, CEDAW etc.
  • State cannot discriminate in recognizing any sort of marriages or partnerships, and declaration of marriages as void is outside the legislative competence of State Government, and in any event, the law loathes to declare marriages as void.

It may be noted that this Ordinance, along with Uttarakhand's Freedom of Religion Act, 2018 have already been challenged before the Supreme Court by Advocates Vishal Thakre, Abhay Singh Yadav and Pranvesh. 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".

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