The petition seeks that all impugned Acts and Ordinances of UP, Uttarakhand, Himachal Pradesh and Madhya Pradesh be declared unconstitutional and therefore, set aside.
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Citizens for Justice and Peace (CJP) has filed an application before the Supreme Court of India seeking to amend its original writ petition that challenged the Uttar Pradesh and Uttarakhand anti-conversion laws.
CJP now has sought to incorporate the Madhya Pradesh Freedom of Religion Ordinance, 2020 and the Himachal Pradesh Freedom of Religion Act, 2019 in its petition.
CJP has filed this intervention to amend the original petition, since the residents of these above mentioned four states will now be subject to scrutiny and investigation by the State if and when they decide to convert from one faith to the other, or even if an interfaith couple merely decides to get married, with or without conversion.
Grounds for challenge
The petition states that in 2012, the Himachal Pradesh High Court had struck down certain provisions of the Himachal Pradesh Freedom of Religion Act, 2006 and Rules of 2007 observing that prior notice to the State for subsequent police investigation violated Article 14 of the Constitution of India. (Evangelical Fellowship of India vs State of Himachal Pradesh).
Despite this ruling of the High Court, the CJP petition contends that the State re-enacted the struck-down provisions of the 2006 Act, and has done so in a form which is even more “obnoxious and unconstitutional under the Constitutional scheme” than the provisions which were struck down by Court in 2012.
The impugned Act has added several provisions dealing with conversion by marriage, reintroduced sections of prior notice, enquiry and investigation and also one that cast a reverse burden of proof upon the person converted, and made the offences, including the “offence” of getting married, cognizable and non-bailable.
Additionally, the petition also argues that the Himachal Pradesh Act was notified one month after the Uttar Pradesh Ordinance was promulgated and that it was not based on any substantial statistics of alleged “love jihad” instances but just following suit as other States were anticipating enacting similar laws.
The petition states that the Madhya Pradesh Ordinance has been modelled on the Uttar Pradesh Ordinance, Uttarakhand and the Himachal Pradesh Act that penalises conversion from one religion to another for marriage, and that this comes in the face of harassment of young vulnerable couples who are deprived of their right to marry any individual on their free will.
It also lays down the stringent provisions of the Madhya Pradesh Ordinance, that holds both, the person converted and the person who facilitated the conversion accountable for it and provides for imprisonment up to 10 long years and fine of rupees one lakh in cases of mass conversions (when two or more people are involved).
CJP’s plea also highlights the rhetoric of “Love Jihad” in the country that first surfaced in the States of Karnataka and Kerala to divide the country with no official numbers or evidence of forced conversions and that the fears of rising love jihad cases have been “baseless” from the very start.
The plea then, cites important judicial pronouncements like Anees Hameed v. State of Kerala (2017), where the Kerala High Court revealed that there were no cases of forced conversion in most cases of inter-faith marriages which are often sensationalised by the society and such marriages are either labelled as ‘Love Jihad’ or ‘Ghar Wapsi’.
It also cites Sri C Selvaraj vs State of Karnataka (2009), where the Karnataka High Court took cognisance of the status report filed by the Police where it admits there were no incidents of Love Jihad in the State of Karnataka.
CJP has also brought to the court’s attention, a recent Allahabad High Court judgment (Smt. Safiya Sultana) which ruled that the publication of notice of intended marriage under the Special Marriage Act is not mandatory and that it violates an individual’s Right to Privacy. Since, all legislations in question have similar conditions of notifying the District Magistrate prior to conversion, it is an outright violation of a couple’s privacy and needs to be struck down.
Background
CJP, through its Secretary Teesta Setalvad had moved the Supreme Court in December last year against the Uttar Pradesh and Uttarakhand anti-conversion laws on grounds that it violates personal liberty, freedom of choice of adults, right to privacy, conscience and autonomy. The laws also happen to be discriminatory and against the principles of secularism and ideologies of B.R Ambedkar, as contended by the human rights organisation. On January 6, 2021, the Supreme Court had issued notices to the states on the CJP petition.
In the present petition, CJP has humbly requested the top court to allow it to add additional grounds to the already existing ones, as Indian citizens enjoy certain fundamental rights but the Acts and the Ordinances are unconstitutional and attempt to control the life of the residents of Uttarakhand, Uttar Pradesh, Himachal Pradesh, and Madhya Pradesh, taking charge of the significant decisions in their life.
Pleadings
The CJP petition, via amendment, has prayed for writ to declare the Himachal Pradesh Freedom of Religion Act, 2019 and the Madhya Pradesh Freedom of Religion Ordinance, 2020 ultra vires of the Constitution of India.
In its original petition, CJP has already prayed for the same direction for both– the Uttarakhand Freedom of Religion Act (2018) and the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 to be declared anti-Constitutional and struck down.
On January 6, 2021, a three-judge Supreme Court Bench, headed by Chief Justice S.A Bobde and comprising Justices V Ramasubramanian and AS Bopanna, heard our original petition challenging the validity of the newly enacted Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020 and the Uttarakhand Freedom of Religion Act, 2018. The Bench issued notices to the respective states saying, “Issue notice returnable within four weeks.” Senior Advocate Chander Uday Singh, Advocate Aparna Bhat, AOR Tanima Kishore, Advocates Amjid Maqbool and Karishma Maria represented Citizens for Justice and Peace (CJP). The matter is slated to be heard in the week starting February 15.
The entire petition may be read here.