Remove scurrilous remarks against minority religions, SC tells Ashwini Upadhay: petition against ‘mass coversions’

law Image courtesy: Law Trend

The Supreme Court on Monday, December 12, took exception to certain tasteless and scurrilous statements made against minority religions in the PIL filed by BJP leader Ashwini Upadhyay alleging “mass conversions” taking place across the country, reports LiveLaw. The Court clearly asked Senior Advocate Arvind P Datar, who is appearing for the petitioner, to ensure that such remarks do not come on record.

It was senior advocate Dushyant Dave, appearing for certain Christian organisations which are seeking to intervene in the matter, who told the bench comprising Justices MR Shah and Justice S Ravindra Bhat that the petitioner has made extremely distasteful allegations against other religions. Dave also pointed out that the petitioner Ashwini Upadhyay himself is facing a hate speech case.

“Certain averments that some religions are perpetuating rapes and others crimes have been made by the petitioner in his affidavit from paragraph 20 onwards. These should be withdrawn. It cannot be before your Lordships”, Dave submitted. Taking note of the seriousness of these baseless averments that are also prejudicial, the bench asked Datar to ensure that such allegations are removed from the record.

“Mr.Datar, please consider what are these allegations. These allegations being made, you consider it and moderate this. You should not have all these on record”, Justice Bhat told Arvind Datar.

“If it is a scurrilous remark or a bad remark, they will be removed”, Datar assured. “Please do that”, Justice Bhat said. “You look into it. You personally look into it”, Justice Shah also joined.

“Para 20 onwards they say. I will see it again”, Datar agreed.

The bench adjourned the hearing to January 9 to also await the affidavit of the Central Government. The counsel appearing for the Union Government sought pass over saying that Solicitor General of India Tushar Mehta was engaged in another bench. In the brief hearing today, Dave requested the bench to allow the applications filed by organisations seeking intervention in the matter. Justice Shah said that it will be considered on the next date of hearing.

On December 12, today, there was a change in the composition of the bench which considered the matter today. A bench comprising Justices MR Shah and S Ravindra Bhat heard the matter, with the latter replacing Justice CT Ravikumar, who was unavailable today.

On the earlier occasions, first in the end of November and thereafter on December 5, the bench comprising Justices MR Shah and CT Ravikumar had observed that forceful conversions were a “serious issue”. Commenting also that charity cannot be used for conversion, the bench had asked the Centre to collect information from States regarding the steps taken against conversions through force or allurement.

The bench had also then –at its last hearing–categorically stated that it will not accept the objections raised against the maintainability of the PIL by certain intervenors, who pointed out that the Supreme Court had earlier refused to entertain a similar PIL filed by the same petitioner on the same issue. The intervenor had then alleged that the petitioner was indulging in forum-shopping after unsuccessfully pursuing the matter before other benches in the Supreme Court and the Delhi High Court. Several intervention applications have been filed in the Supreme Court alleging that the PIL has been filed on the basis of Whatsapp forwards and unattributed sources to create a false narrative of mass conversions.

Last week, December 5, the first intervention in this matter was filed by the Kerala Rationalist Association. Apart from providing state-wide figures on the issue of conversions that punctured the false propaganda of “mass conversions” the KRA also argues that Upadhyay’s Writ Petition in the form of a PIL engages in forum shopping and has been pursued with a political motive. The Petitioner claims to be a member of a political party and has on previous occasions approached the Supreme Court of India and the Delhi High Court with the self-same reliefs claimed in the present petition. That the Petitioner in the present Petition has tactfully suppressed details of other petitions that he filed before the Hon’ble Delhi High Court (W.P.(C)2786/2020 and W.P(C) 9442/2022) seeking similar reliefs on issue of conversion of religion. In both the aforementioned cases he withdrew his petition because of his failure to show any evidence of religious conversion, to avoid costs. Thus such acts by the Petitioner amount to forum shopping, the association argued.

Arguments made by senior counsel CU Singh also went on then to give details of the two cases pursued by the petitioner earlier which were withdrawn by him. The KRA through its counsel had stated that this petitioner had approached the Hon’ble Court vide WP(C) 393/2021 wherein a three judge bench headed by Hon’ble Mr. Justice RF Nariman (as His Lordship then was) sternly objected to the petition and remarked that it was nothing but a Publicity interest litigation which was of a harmful kind. The bench also warned the Petitioner that heavy costs will be imposed if the matter was pressed. Following that, the Petitioner withdrew the petition.

On Friday, December 9, LiveLaw also reported that, awardee and a former member of the Planning Commission of India, Dr. Syeda Hameed has moved the Supreme Court seeking impleadment in the PIL filed by BJP leader and Advocate Ashwini Kumar Upadhyay against forced religious conversions, which is violative of Article 25 of the Constitution. Hameed has already filed a petition before the Top Court raising concerns over rising incidents of hate speech. In the present application, she claims that there is an “intrinsic relationship” between hate speech and free exercise of freedom of religion under Article 25.

In this intervention, she highlights four classes of instances where an individual is curtailed from exercising freedom of religion and conscience:

First, when ‘Hate Speech’ is systemic and widespread and explicitly targets particular religions. She submits that hate speech feeds into social discrimination, affects marginalized communities and causes loss of ‘agency’ required to exercise freedom of religion and conscience.

“Right to freedom of conscience feels affected and restricted by the stigmatizing and the push towards social and political exclusion…there have been rallies replete with speeches that directly and hatefully target a religious community.”

Second, when there is targeted sexual violence or threats of sexual violence for adhering to certain beliefs, or for professing, identifying with a religion. The application states,

“Sexual violence, or threats thereof remain one of the most potent attacks on free agency and the right to profess/ identify with a group.”

Third, repeated calls for economic and spatial apartheid.

Hameed refers to two recent events at Haridwar that allegedly targeted Muslim community and propagated violent speeches inciting their killings.

“Contents of the speech feed into an already prevailing discourse… which has no space for other cultures, traditions and practices… creating paranoia and a completely manufactured feeling of being under siege amongst ordinary Hindu citizens…such actions evoke fear, and also have the effect of inducement to the poorest vendors, who might feel compelled to hide their religious identities.“

Fourth, when such calls are made by persons holding public offices, or by persons in the media with widespread following, or even in the state’s response to the same.

Hameed claims that there have been cases where State lodged criminal cases against persons offering namaz in public spaces but no such action was taken over other forms of worship in public places.

Certain media persons with large following are also said to have openly encouraged economic and social boycott based on religious identities.

This, she claims evokes both fear and an inducement to hide personal religious convictions.

Activist John Dayal has filed an Impleadment Application in the Writ Petition Ashwini Kumar Upadhyaya vs. Union of India Writ Petition (C) No. 63 of 2022 alleging that the petition filed by the Petitioner Ashwini Kumar Upadhyaya is frivolous, without basis, misconceived, vague, unsubstantiated, malicious and defamatory.

The application alleged that the Additional Application for Directions to Central government which was filed by the Petitioner carries derogatory and inflammatory statements against the Christian and Muslim community. The IA states that the statements made in the Writ Petition affect the communal harmony and secular fabric of the country.

The IA further states that, “It is apposite to submit here that the people of India having solemnly resolved to constitute India into a Sovereign Socialist Secular Democratic Republic, have secured and guaranteed all its citizen, irrespective of caste, creed and colour, certain fundamental rights embodied in the Constitution. In this backdrop the Indian Christian community is at liberty to preach, practice and propagate its religious views by exhibiting and transforming its Christian faith into actions as they are enjoined upon these rights which flow to them through Articles 19, 25 and 26 of the Constitution of India.”

Countering the argument that Christians and Muslims engage in increasing their population through forceful conversion, the IA argues, “The Christian community of India has over the many years contributed dedicatedly towards nation building. The community has sought to live out the Biblical mandate to love thy neighbors as thy self and served the marginalized and the poor. The term “forceful conversion” is misleading and cannot be termed as conversion at all.

It further states that, “religion is a personal affair, and no third party or outsider can ever have any influence on a relationship that man enjoys with his cosmos.”

It is further submitted in the IA that the “Petitioner does not have clean antecedents and is known for creating animosity between various religious groups. He is a political leader who has on many occasions filed frivolous PILs for his oblique propaganda and politics, wasting precious judicial time…Earlier this year, on 08.08.2022, the Petitioner was arrested by the Delhi police along with 5 others for organizing an event where several anti-Muslim slogans were raised.

Academician Dr. Sakhi John has also filed an application for Intervention in the Writ Petition titled Ashwini Kumar Upadhyaya vs. Union of India W.P. (C) No. 63 of 2022 stating that the petition is not maintainable and deserves to be dismissed at the outset (in limine) as the prayers made in it by the petitioner are not tenable inasmuch as they pray for the court to legislate on the issue of forceful conversion which is the parliament’s task.

This intervention also argues that the petition’s several averments relating to the minority communities in India are objectionable. It states, “…to say that the entire Christian and Muslim community is practicing deceitful means to convert Hindus to their faith is objectionable and untruth.”

It further states, “Petition qualifies itself as having many averments which on the face of it looks like a deliberate act on the part of Writ Petitioner to make malicious averments which has propensity to cause an outrage of the religious feelings of a class of citizens in India especially the Christians and Muslims.”

Further, the application states that the petitioner in the abovementioned Writ Petition has not conducted any proper research before proceeding to the court under Article 32. It states, “That the Petitioner to the writ petition, who is praying for a central legislation should actually take a cue from the effectiveness of anti conversion laws which would clearly demonstrate the facts as to in how many cases force has been used, how many cases of fraud have been reported and how many cases of allurement have been brought to book. Without undertaking such an exercise, the Petitioner rushing to this Hon’ble Court invoking the jurisdiction of this Hon’ble Court under Article 32 is nothing but an abuse of process of law.”

Moreover, the IA states that the Petitioner has presented no data whatsoever to justify or support his averments relating to forceful conversion. It states, “a false narrative of conversion is stated in the instant Writ Petition – it is an admitted fact by the Petitioner that the Population of India as per the 2011 census shows that Christian population is only a meagre 2.30% and there is no demonstrated data to show that mass conversions are happening in the country at the behest of the Christian community.”

Making an argument in support of the constitutional guarantee of freedom of conscience the application states, “The fact that the criminal administrative system of the states are ineffective to book people who practice force, fraud on individuals should not be a reason for making legislation which actually causes an impediment in the free expression of one’s conscience.”

The application also further argues for existence of spiritual fluidity of citizens. It states, “A spiritual fluidity that is a psychological, mental construct needs to be appreciated by this Hon’ble Court and to be left alone to the individual to select, switch, revert, convert to the level of fluidity he or she wants at any time, any place, at any instance without interference from any State or non-State actors exercising any control over the will of the person.”

Contending that religion is a private affair and any interference with it would amount to violation of an individual’s right to privacy, the application states, “This Hon’ble Court having said that sexual orientation is a strictly private affair that State cannot look into, should also consider declaring their religious orientation or a spiritual orientation falls in the same category of a strictly private and personal aspect of a person.”

It further argues, “This Hon’ble Court speaking through a Nine Bench in Union of India vs KS Puttuswamy 2017 (10) SCC 1 has endorsed the fact that Right to Privacy is a fundamental right and part of Article 21. Thus, any effort to infringe into freedom of conscience of a person, either by a State or a Non-State actor is unconstitutional as it infringes on the Privacy of a citizen. Article 21 guarantees the Right to Privacy and the Right to Choose for every individual, that is, conversion to any religion is a private matter as well as the personal choice of the individual.”

Finally, the Application also vehemently opposes the petitioner’s statements in the writ petition stating that minorities in India are foreigners and not Indians. It states, “The Christians in India are not foreigners as stated by the Writ Petitioner. The Petitioner has tried to create a narrative that Christianity and Islam are foreign religions and has tried to demonstrate that all the followers of these two religions are also foreign.”

CJP’s challenge to the constitutionality of state anti-conversion laws, against autonomy and free choice

In the third week of November 2022, the Supreme Court has agreed to hear the earlier (2020-2021) batch of petitions challenging the Freedom of Religious Acts introduced by some states legislatures in the name of ‘love jihad‘ against religious conversions done for the sake of marriages. Senior Advocate, CU Singh, appearing on behalf of ‘Citizens for Justice and Peace‘, one of the petitioners, mentioned the pleas before a Bench comprising the Chief Justice of India, DY Chandrachud, Justice Hima Kohli and Justice JB Pardiwala, for urgent listing. Informing the court about urgency of the matter, CU Singh informed the bench that the court had already decided the issue of right of change of faith being a part of fundamental right of choice in Shafin Jahan’s matter.

The petitions mentioned by the senior advocate CU Singh particularly challenge the constitutional validity of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020 and the Uttarakhand Freedom of Religion Act, 2018.

The Apex Court had also issued a notice in these batch of petition in January 2021. The laws promulgated by Madhya Pradesh and Himachal Pradesh also have been challenged before the court. Last year, Madhya Pradesh government made it mandatory for people to inform the officials two months in advance about interfaith marriage or willful conversion to another religion. Section 10 of the Madhya Pradesh Freedom of Religion Act stipulates punitive actions including imprisonment and penalty if an individual fails to adhere to the law.