Anushka Mansharamani
A writ petition was filed in the Allahabad High Court by Advocate Saurabh Kumar challenging the legality, constitutionality, and validity of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020.
He called the Ordinance morally and constitutionally incorrect.
He approached the Court to declare the ordinance as ultra-vires to the Constitution.
The ordinance was brought into force on 27th November 2020.
On October 31st, 2020, the Chief Minister of Uttar Pradesh, Yogi Adityanath passed a statement in the public domain stating that the Uttar Pradesh government would introduce a law that would go against “love jihad.”
“Love jihad” is a term that is used to discredit marriages between Hindu women and a Muslim man.
The Chief Minister, while making this statement, cited the case of Kum Shamreen and Ors. v. State of UP, where the High Court of Allahabad observed that conversion of religion for the sole reason being marriage would be considered invalid in the eyes of law.
A few days later, after this verdict of the Allahabad High Court, in the case of Salmat Ansari and Ors. v. State of UP & Ors. the same court had overruled the judgement passed by a court, which stated that religious conversions would be considered invalid.
Justice Pankaj Naqvi and Justice Vivek Agarwal stated 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.”
According to the petitioners, the Ordinance passed does not consider the judgement passed in the case of Salmat Ansari and Ors. v. State of UP.
In this case, the scope and meaning of personal liberty were also expressed which is in line with the Right to Privacy Judgement. (KS Puttaswamy v. Union of India)
In the Puttaswamy case, the court had established a three-fold test to determine whether an action by the state infringes the Right to privacy. The three-fold test consists of legality, need, and proportionality.
The petitioner concludes that as per the three-fold test, need and proportionality cannot be established, and therefore, it infringes the right.
According to the petitioners, Section 3, Section 4, and Section 6 of the Ordinance passed goes against Article 21 of the Constitution of India. Section 3 prohibits a person from converting to religion for marriage.
Section 4 disallows a person who is related to the converted individual to lodge an FIR against the conversion, and Section 6 gives the right to the court to declare the marriage void if the conversion is done for the reason of marriage.
Section 12 of the ordinance also reverses the burden of proof to the person who has converted to prove that such conversion is not done under misrepresentation, undue influence, coercion, etc.
The effect of such a law with this provision would bring criminal law over every marriage where conversion of religion takes place.
The Ordinance makes the conversion of religion to be certified by the state and a 60 days notification to be given to the District Magistrate in advance before the conversion.
A police inquiry could also take place in case of conversion and the information of the priest doing the conversion is also to be notified.
The confirmation of the conversion would take place only if the concerned authorities do not have any objections and if the District Magistrate agrees.
The point put forward by the petitioners of unconstitutionality is based on the very concept of why a person has to give a justification of a decision taken by him/her.
The plea further mentions that the 60 days-notice is fundamentally arbitrary and violates the right to privacy of a citizen. The state has no power to question a person’s personal choice for conversion thereby making the provision unconstitutional.
The plea strongly states that “The Constitution imposes limitations on State power and burdens the State to explain and justify the decisions taken by it affecting the rights and lives of citizens. The Ordinance inverses this equation.”
The petition filed has cited the case of Shefin Jahan v. Asokan KN, a Supreme Court case where it was concluded that the Right to change faith comes under the ambit of the fundamental right of choice and that the consent of the society is not necessary if the two adult individuals agree to enter into a wedlock.
It is also pertinent to note that this Ordinance and the Uttarakhand’s Freedom of Religion Act have been challenged earlier before the Supreme Court of India.
This PIL filed before the Allahabad High Court has prayed to declare these laws null and void as they disturb the basic structure of the Constitution of India.