The Supreme Court on Wednesday issued notice on pleas that challenged the Uttar Pradesh ordinance regulating inter-faith marriages and religious conversion. However, the top court declined to stay the law.
Several pleas have been filed challenging the constitutional validity of the Uttarakhand Freedom of Religion Act, 2018 and Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020.
UP governor Anandiben Patel on November 28, 2020, promulgated the new ordinance which was fast-tracked by the state cabinet to combat 'Love Jihad'—a term that has gained popularity in recent years. This law, like the 2019 law in Uttarakhand, bars religious conversions for the purpose of marriage.
Anti-conversion law obnoxious and instrument of oppression: NGO to SC
The Supreme Court bench led by Chief Justice of India SA Bobde was initially reluctant to issue notice when Solicitor General Tushar Mehta submitted that the respective state high courts are already adjudicating on this issue.
"The challenge is pending in Uttarakhand and Allahabad high court. Why don't you go there? Not saying you have a bad case, but saying, in the first instance go to the high courts and then come here," CJI Bobde told advocate Pradeep Kumar Yadav, who was representing petitioner Vishal Thakre.
Yadav argued that when a matter of "public interest" is pending in different high courts, the apex court was within its powers to examine the issue and call for records. "The whole society is affected [by the law], Yadav argued. "Now as per media reports, Madhya Pradesh has also enacted a similar law, while Haryana is also planning to do so," he added.
Senior advocate CU Singh, representing the NGO Citizens for Justice and Peace (CJP), also sought a stay on the provision that required prior permission to convert from a competent authority before getting married. However, his request was denied by the bench that also comprised Justices V Ramasubramanian and AS Bopanna.
Singh argued that the new ordinance issued by UP was obnoxious, horrifying and had become an instrument of oppression. "There are rampaging mobs moving about, lifting people in the middle of marriage ceremonies," Singh said. "There is a reverse burden of proof on a person to prove that they are not converting for marriage. On the face of it, it is an oppressive clause, if a person does marry a person of another faith it is an offence that attracts 10 years jail time. And it is non-bailable," he added.
"The reverse burden of proof is unsustainable. There are daily reports of people being physically picked up by force. This has now become an instrument of oppression. Prior permission to marry is obnoxious," Singh argued. Referring to the 2018 top court verdict, Singh argued that in Shafin Jahan case, the court had ruled that neither the state nor society could interfere in issues of marriage. Singh was referring to the Shafin Jahan case where the top court had overturned a Kerala High Court order which annulled Hadiya's—born Akhila Asokan before she converted to Islam—marriage to Shafin Jahan.
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