The Supreme Court on Monday issued notice on the petitions challenging the laws made by Uttar Pradesh and Uttarakhand in the name of 'love jihad' against religious conversions for the sake of marriages.A bench comprising Chief Justice SA Bobde, Justices V Ramasubramanian and AS Bopanna was considering the petitions filed by Vishal Thakre & others and social activist Teesta Setalvad's NGO 'Citizens for Justice and Peace'(CJP).
The bench however declined to stay the provisions of the laws which require prior permission for religious conversions for marriage.
Senior Advocate Chander Uday Singh, appearing for the CJP, sought for a stay on the provisions of the law which mandate that prior permission should be obtained for religious conversions for marriage. CU Singh submitted that the provisions are 'oppressive' and that 'prior permissions to marry is absolutely obnoxious'. He submitted that many innocent persons have been picked up by police on the basis of UP Ordinance alleging 'Love Jihad'.
The bench was not inclined to entertain the petitions and asked the petitioners to approach the respective High Courts.
Solicitor General Tushar Mehta told the bench that the Allahabad High Court was already considering the challenge against the laws.
"The challenge is already pending in High Courts. Why don't you go there? We are not saying you have a bad case. But you must approach the High Courts in the first instance instead of coming to SC directly", CJI repeatedly said.
But the CJI changed his mind after CU Singh and Advocate Pradeep Kumar Yadav(appearing in the connected matter) submitted that they are challenging laws of two states, which are creating widespread problems in the society. The lawyers submitted that more states, like Madhya Pradesh and Haryana, are mulling similar laws.
When cases are pending in more than one High Courts, it is appropriate that the apex court considers the matter, Yadav submitted.
"Alright. We will issue notice", CJI said after much persuasion by CU Singh and Yadav.
However, the CJI was not inclined to consider CU Singh's prayer for interim relief at present saying that it required detailed hearing.
"You are asking for a relief which we cannot entertain under Article 32. Whether provision is arbitrary or oppressive needs to be seen. This is the problem when you come directly to the Supreme Court", CJI remarked while ordering notice. The notice is returnable within 4 weeks.
The petitions challenge the constitutional validity of the recently passed Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020 and the Uttarakhand Freedom of Religion Act, 2018.
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 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."
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.
The other 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 "they disturb the basic stricture 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, promulgated in November, is modeled mostly on the Uttarakhand legislation. However, 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 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.