The Supreme Court on Wednesday issued notices to the Centre, Uttar Pradesh and Uttarakhand on a petition questioning respective state legislations that outlaw and punish religious conversion by marriage, deceit, coercion or enticement.
The three-judge bench headed by Chief Justice of India SA Bobde issued the notices, but refused to stay the two laws despite arguments by petitioners that the law was being misused to harass individuals who married outside their faith.
The court was hearing two petitions, one by a group of lawyers, and another by social activist Teesta Setalvad’s NGO Citizens for Justice and Peace.
The persons who filed the first PIL are advocates Vishal Thakre and Abhay Singh Yadav and law researcher Pranvesh, based in Prayagraj. The petition said, “The Ordinance passed by the State of Uttar Pradesh and law passed by Uttarakhand are against the public policy and society at large and violates basic structure of the Constitution.” It pointed out that a similar law is being contemplated Madhya Pradesh, Karnataka, Haryana and Assam.
The Uttar Pradesh ordinance titled “Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020” outlaws religious conversions by marriage, coercion, deceit or enticement.
It was promulgated on November 24. The law prescribes a jail term varying between one and five years, in addition to fines of up to Rs15,000 for those convicted under the law. The jail term goes up to 10 years and fine up to Rs25,000 for conversions of women belonging to scheduled caste or scheduled tribe communities or who are minors.
The law was promulgated about a month after Uttar Pradesh chief minister Yogi Adityanath vowed to end “love jihad”, a term used by right-wing activists to describe marital relationships between Muslim men and Hindu women.
“This ordinance can become a potent tool in the hands of bad elements of the society to… falsely implicate anyone…there are probabilities to falsely implicate persons who are not involved in any such acts and it will be a grave injustice if this ordinance is passed,” said the petition.
Senior advocate CU Singh who appeared for Setalvad’s NGO sought a stay on the UP ordinance. “Rampaging mobs are moving around lifting people from marriage ceremonies. This law requires prior reporting of marriages and burden of proof is on individual to show that he has not converted for marriage. These provisions are obnoxious particularly when the Supreme Court in 2018 held that state cannot interfere with individual’s right to marry as held in Shafin Jahan case.”
The Uttarakhand law, called Freedom of Religion Act, was passed in 2018.
The bench, also comprising justices AS Bopanna and V Ramasubramanian, said, “Can a law be stayed if prosecution is oppressive or false. This is the problem when you come directly to Supreme Court.”
While initially taking up the case, the bench was of view that the matter should go to the high court. A similar challenge is pending before the Allahabad and Uttarakhand high courts. But Singh told the Supreme Court that it was not just a matter concerning these states as a similar law had also been passed by Himachal Pradesh in 2019.