SC: Notice issued to 5 states in challenge to ‘love jihad’ laws

anti conversion Law Image Courtesy: smishdesigns

The Supreme Court has issued notice in the fresh writ petition filed by Citizens for Justice and Peace (CJP) and in other petitions too,, challenging anti-conversion laws of Chhattisgarh, Gujarat, Haryana, Jharkhand and Karnataka. The anti-conversion laws of UP, Himachal Pradesh, Madhya Pradesh and Uttarakhand have been challenged by CJP under a separate writ petition [WP (Crl) 428/2020]. The bench of CJI DY Chandrachud and Justice PS Narasimha issued notice to the states of Chhattisgarh, Gujarat, Haryana, Jharkhand and Karnataka, making them returnable within 3 weeks.

CJP is the lead petitioner in these matters (WP Criminal Nos 428/2020 and Nos 14/2023). In the first petition in any constitutional court filed in December 2020, CJP had challenged the laws filed by Uttarakhand, Uttar Pradesh ( UP), Himachal Pradesh (HP) and Madhya Pradesh (MP). Notice had been issued in this petition on January 6, 2020. In December 2021 when these pending matters were mentioned, CJP was given leave to amend the original writ (as in two states at the time ordinances had been invoked and these had, since become laws) as also to file a fresh petition challenging the anti-conversion laws passed by Chhattisgarh, Gujarat, Jharkhand, Haryana and Karnataka (Writ Petition Criminal Nos 14/2023).

CJP has even filed a rejoinder affidavit (February 2, 2023), in response to the preliminary affidavit filed by the Union government (January 30, 2023). The Union government had challenged the locus standi of CJP in challenging these laws. The court has taken on record CJP’s rejoinder. The union of India’s affidavit, filed by an officer of the ministry of Home Affairs made scurrilous remarks that received wide publicity and which have been responded to in CJP’s rejoinder.

The laws challenged by CJP in the new petition are as follows:

a. Chhattisgarh Dharma Swantantraya Adhiniyam [Freedom of Religion] Act, 1968 (as amended by the Chhattisgarh Freedom of Religion (Amendment) Act, 2006)

b. Gujarat Freedom of Religion Act, 2003 (as amended by the Gujarat Freedom of Religion (Amendment) Act, 2021)

c. The Haryana Prevention of Unlawful Conversion of Religion Act, 2022

d. Jharkhand Freedom of Religion Act, 2017, along with the Jharkhand Freedom of Religion Rules, 2017

e. Karnataka Protection of Freedom of Religion Act, 2022

At the outset, the petitioners have submitted in the writ petition that the draconian provisions in the impugned legislations also place interfaith couples in the way of harm, by making such inter faith marriages inherently suspect, and sanctioning societal interference in decisions that are fundamental to the exercise of the freedoms of such interfaith couples.

Several of the problematic provisions of these laws are pari materia which means they are identical in implication. Some of these include:

A. Prior or post facto reporting requirements: These requirements impose onerous burdens on persons wishing to convert to give prior notice as well as post facto notice, in some cases, or take prior permission of the District Magistrate/ authorities, before conversion.

B. Over-broad definitions of ‘inducement’ or ‘allurement’: includes material gratification, promise of a better lifestyle promises of divine displeasure, or divine / spiritual rewards. Such definitions essentially outlaw any kind of proselytization, or even religious teaching.

C. Declaring conversion for the purposes of marriage illegal: The legislations equate conversion for the purposes of marriage to conversion by force, coercion and undue influence, and in doing so, essentially tar all interfaith marriages as inherently suspect

D. Declaring marriages that are a result of conversion to be void: some of the impugned laws go to the extent of declaring marriages, that are a consequence of a conversion that falls foul of the Act, as void ab initio

E. Reversed burden of proof: Many of the impugned legislation cast the burden of proof on the accused persons to show that the provisions of the impugned laws have not been violated. This is not the norm in criminal jurisprudence and only in cases of sexual assault or rape is such onus placed on the accused

F. Locus to complain given to relatives/ any aggrieved person: Such provisions give impetus to families and members of the community to further harass interfaith couples

G. Offences are cognizable and non-bailable: Many of these legislations declare the offences to be cognizable and non-bailable

Right to choose religion

The petitioner CJP has also submitted that when an adult individual exercises his or her choice to convert to a religion different to the one in which he or she was born in, it is not a conversion at all, but the first real exercise of one’s right to conscience, which is covered under Article 25 of the Constitution. As per the petitioner, the provisions by them place fetters on an individual’s right to freedom of conscience.

Petitioner CJP also submits that in illegalising the conversion of an individual for marriage, and for over-broad reasons such as ‘allurement’, the impugned laws violative an individual’s right to autonomy, privacy, conscience, and fall foul of Articles 14, 21 and 21 of the Constitution.

The petitioner also highlights that Article 25 which gives every person the right to freedom of conscience and the right to freely profess, practice, and propagate religion, subject to public order, morality and health, was added to the Constitution at the insistence of the Minorities Commission of the Constituent Assembly. The same was added based on the fact that many religions, including Christianity and Islam, are by nature proselytizing religions, and for that end, the right to propagate their faith was an essential feature of the religion.

Preferred religions

Petitioner CJP has stated in its petition that the laws appear facially neutral but they give certain religions a status of “preferred religions” and converting back to ones purported ancestral religion, is exempt from the rigors of the law. This, the petitioner states, is an attack on the secular fabric, and falls foul of Article 14 of the Constitution.

The Petitioner also submits that by making inter-faith marriages inherently suspect, the laws seek to dissuade inter-faith couples from exercising their liberties for fear of the reprisals which may result upon the free exercise of choice.

Ultra vires the Constitution

Besides, petitioner CJP asserts that the impugned laws are discriminatory and ultra vires the constitution as it equates “marriage” with other criminal acts like “force”, “coercion”, “fraudulent means”.

Freedom of choice

By making interfaith marriages inherently suspect, the laws seek to dissuade inter-faith couples from exercising their liberties for fear of the reprisals which may result upon the free exercise of choice, states the CJP petition. It is submitted that public spectacles involving a harsh exercise of State power prevent the exercise of freedom, by other individuals.

in Salamat Ansari and Ors vs State of Uttar Pradesh and Ors. (supra), 2020 SCC OnLine All 1382 the High Court of Allahabad observed that: “Right to live with a person of his/her choice irrespective of religion profess”.

The petition also asserts that in illegalizing the conversion of an individual for marriage, and for broad reasons such as ‘allurement’, the impugned laws violative an individual’s right to autonomy, privacy, conscience, and fall foul of Articles 14, 21 and 21 of the Constitution.

Sensationalizing inter faith marriages

The petitioner has pointed out that no case of forced conversion is made out in most cases of inter-faith marriages. The petitioner cited Anees Hameed v. State of Kerala (2017) 4 KLJ 600, wherein the Kerala High Court held, 10. “We are appalled to notice the recent trend in this State to sensationalize every case of inter-religious marriage as either ‘Love Jihad’ or ‘Ghar Wapsi’ even if there was platonic love between the spouses before.”

In Sri C Selvaraj vs State of Karnataka WPHC No. 158 of 2009, the Hon’ble High Court of Karnataka in 2013 recorded that there were no instances of ‘Love Jihad’ and disposed the petition.

Repugnant clauses

The petitioner also points out that the impugned laws are repugnant to the provisions of the Special Marriage Act, 1954, to the extent that they impose prior reporting requirements in cases of interfaith marriages, prior investigation or police scrutiny in interfaith marriages, or the need for prior permission of the District Magistrate or others in interfaith marriages. Since section 5 of SMA, prior intimation can be made to the Marriage Officer of any District in which either one of the intending spouses has resided for 30 days, which gives considerable leeway to individuals to marry their chosen partner without facing the wrath of their families.

Since, these impugned laws were not reserved for the assent of the President of India, the SMA prevails over these laws since they are bad to the extent of the repugnancy.

Absolute prohibition on interfaith marriages

The petition submits that some of these laws have the effect of creating an absolute prohibition on interfaith marriages which entail a prior or subsequent adoption of another faith. For instance, in the Haryana Act, there is complete prohibition on inter faith marriages as it states that the District Magistrate cannot issue certificate for conversion unless he is convinced that conversion not by marriage. In the Gujarat Act, marriage done for “unlawful conversion” will be declared void by the court.

The petitioner also contends that in equating marriage to force, coercion or fraudulent means, the law equates two things that cannot ever be placed on the same pedestal. Further, by making interfaith marriages inherently suspect, the laws seek to dissuade inter-faith couples from exercising their liberties for fear of the reprisals which may result upon the free exercise of choice.

Case Laws

The petitioners have cited the following case laws, among others, to support their case:

Shafin Jahan vs Ashokan K.M reported in (2018) 16 SCC 368 it was held that intimacies of marriage, including the choices which individuals make on whether or not to marry and on whom to marry, lie outside the control of the state.

in Shakti Vahini v. Union of India, (2018) 7 SCC 192 it was held by this Hon’ble Court that, “Assertion of choice is an insegregable facet of liberty and dignity. This right of enjoyment of liberty deserves to be continually and zealously guarded so that it can thrive with strength and flourish with resplendence. The choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice. If the right to express one’s own choice is obstructed, it would be extremely difficult to think of dignity in its sanctified completeness.”

While asserting that the prior reporting clause strike at the heart of right to privacy, the petitioner cited the case of K.S. Puttaswamy (Privacy-9J.) v. Union of India, (2017) 10 SCC 1, whereby the court observed, “323. Privacy includes at its core the preservation of personal intimacies, the sanctity of family life, marriage, procreation, the home and sexual orientation. Privacy also connotes a right to be left alone. Privacy safeguards individual autonomy and recognizes the ability of the individual to control vital aspects of his or her life. Personal choices governing a way of life are intrinsic to privacy. Privacy protects heterogeneity and recognizes the plurality and diversity of our culture.”

In Rev Stanislaus vs Madhya Pradesh reported in (1977) 1 SCC 677, the apex court, while adjudicating the constitutional validity of the Madhya Pradesh Dharma Swatantraya Adhiniyam, 1968 and the Orissa Freedom of Religion Act, 1967, held that the fundamental right to “propagate” religion does not include the right to convert a person to another religion. However, the petitioner points out that after this judgment, the law has undergone a sea change, including upholding of right to privacy and recognition of the ground of ‘manifest arbitrariness’ to strike down laws. Further, after the judgement, the scope and provisions of the laws have changed and are vastly different and more draconian, particularly in as much as they impose prior restraints on those wishing to convert, declare conversions for the purposes of marriage to be illegal, declare such resultant marriages to be void. The petitioner submits that thus, the judgement in Rev Stanislaus will not be come to the aid of the impugned legislations.

In Evangelical Fellowship of India v. State of Himachal Pradesh reported in 2012 SCC OnLine HP 5554, the High Court of Himachal Pradesh struck down Section 4 of the Himachal Pradesh Freedom of Religion Act, 2006 and Rule 3 of the Himachal Pradesh Freedom of Religion Rules, 2007 and held that “7. …Conversions in our country are permissible if the conversion is by the free will of the convertee. We are also of the opinion that each and every citizen of this country has a right not only to follow his own beliefs but also has a right to change his beliefs.”

The court also referred to Rev Stanislaus and said that “while the court had upheld the right to propagate a religion, in no uncertain terms did it hold that right to propagate one’s own views does not give any person the right to convert anybody else except if the person converts of his own free will”.

In Shayara Bano v. Union of India, reported in (2017) 9 SCC 1, the court recognized ‘manifest arbitrariness’ as a test to strike down laws. The petitioner thus inferred that the impugned laws, in being excessive and disproportionate, curtailing human freedoms and being devoid of any determining principle that might pass constitutional muster, are manifestly arbitrary.

International covenants

Relying on statutes and treaties in international law, th petitioner also points towards Article 16 of the Universal Declaration of Human Rights (UDHR) which protects the rights of men and women who have the right to marry when they are legally able without limits due to race, nationality or religion; as also Article 18 which enumerates the right to freedom of thought, conscience and religion which includes freedom to change religion.

Further, Article 18 of the International Covenant on Civil and Political Rights (ICCPR) which includes the freedom to have or to adopt a religion or belief of his choice.

The petitioner CJP also points out that India is a signatory to the Universal Declaration of Human Rights and ratified the ICCPR in 1979, therefore has a responsibility to ensure that its domestic law is in harmony with international principles and safeguards.

The petitioner even submitted a chart showing that several provisions of all of the Acts challenged are pari materia (dealing with the same subject matter).

The fact that many of the provisions of these Acts read similarly, deal with the same subject and have the same implications, are some of the main reasons for challenging the Acts before a common forum, the Apex Court.

The matter is now likely to be heard in three weeks, that is towards the end of February 2023.

The order may be read here: