The Magistrate issued a clear direction on October 7, 2016, ordering the police to register an FIR and conduct an investigation. However, the Station House Officer (SHO) of Police Station Tikait Nagar, District Barabanki, ignored the order for four months. Due to this inaction, the petitioner filed the present writ petition, seeking a mandamus directing the police to comply with the judicial order.

Issues

1. Can the police ignore a judicial order passed under Section 156 (3) CrPC for registering an FIR and conducting an investigation?
2. What are the consequences of non-compliance by police officers with a court’s directive regarding FIR registration?
3. Is the petitioner entitled to compensation for the delay and harassment faced due to police inaction?

Observations

The High Court took a stern view of the police’s refusal to comply with a clear judicial direction. It noted that:

• The registration of an FIR is mandatory when a cognizable offense is disclosed, as per Section 154(1) CrPC. The police have no discretion to ignore such information.

“…It is thus unequivocally clear that registration of FIR is mandatory and also that it is to be recorded in the FIR book by giving a unique annual number to each FIR to enable strict tracking of each and every registered FIR by the superior police officers as well as by the competent court to which copies of each FIR are required to be sent…” (Para 23)

• The Magistrate had already applied judicial mind under Section 156(3) CrPC before ordering the registration of an FIR. The police had no authority to question or delay the implementation of this order.

“In the considered opinion of the court. the police has no discretion not to register F.I.R. in a case in which direction has been issued by a Magistrate under Section 156(3). Cr.P.C. in such cases, as held in the above noted judgment, the Magistrate has already applied his mind in regard to prima facie commission of a cognizable offence, before issuing a direction under Section 156(3). Cr.P.C. it therefore follows that once a direction is issued by the Magistrate under Section 156(31. Cr.P.C. to register a case and investigate, law mandates that substance of the information is entered in the prescribed form and start investigation. The police in such cases has no discretion to delay registration of the case so as to verify facts, or even to consider whether cognizable offence has been committed.” (Para 19)

• Ignoring a judicial order for several months undermines the administration of justice and erodes public confidence in the criminal justice system.

“The court would be failing in its duty by merely disposing of this petition as infructuous, the crime having been registered. A large number of cases of this nature are coming up before this court wherein even though a judicial order is passed directing registration of case and investigation, yet the orders are ignored by the Station House Officers of the concerned Police Station in total disregard to the administration of justice and their statutory duties.” Para 10

• The delay in registering the FIR weakened the case, as evidence is often lost or destroyed over time, especially in cases of sexual assault.

“Needless to say that on account of delay in registering the crime and consequent investigation, the evidence is not only lost or diluted, the victim of offence is also harassed and tormented. After offence of rape is committed, the victim in any case is physically and mentally shattered. To make the matter worse, the crime was not registered, whereas it is the statutory duty of the Station House Officer of the concerned Police Station to register a cognizable case. Even after passing of order by the Magistrate, the Station Officer ignored the order for no reason.”   (Para 18)

Outcome and Significance

• The court imposed exemplary costs of ₹50,000, to be recovered from the responsible police officers, as a deterrent against such misconduct.

“Vide order dated 7.2.2017, above extracted, we asked for a cause as to why exemplary costs in the sum of Rs. 50,000/- be not imposed for non-compliance of order dated 7.10.2016. No satisfactory or other explanation has come forth from the Station Officer. Rather Superintendent of Police, Barabanki has made it evident through his affidavit that Station Officer was at fault in ignoring the order passed by the Magistrate.” (Para 19)

• The High Court reiterated that compliance with judicial orders is not optional and that law enforcement officers must act with diligence. (Para 20)
• The Superintendent of Police was directed to ensure compliance with court orders in future cases. (Para 21)

This judgment is significant in upholding judicial authority over law enforcement and reinforcing the principle that police officers cannot arbitrarily refuse to register FIRs when directed by a court. It also underscores the right of victims to seek legal remedies when law enforcement agencies fail in their duty.

The judgment in the case Sangita Devi v. State of U.P & Ors. 2017 (5) ALJ 705, Allahabad High Court may be read here:

(The legal research team of CJP consists of lawyers and interns; this primer has been worked on by Shailendar Karthikeyan)

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The post Judicial orders must be followed, rules Allahabad High court appeared first on SabrangIndia.

In response to Public Interest Litigation (PIL) No. 909 of 2024 filed by the Association for Protection of Civil Rights (APCR), a division bench of Justices AR Masoodi and Subhash Vidyarthi also noted that the notices issued to occupants for proposed demolition did not indicate the number of houses situated on kilometre 38 of Kundasar-Mahasi-Nanpara-Maharajganj, District Road, that have been authorised for construction.

Though the court did not explicitly stay the demolition in its order and observed that the court have no reason to believe that order passed by the Supreme Court on September 17, 2024 (halting nationwide demolition) shall not be carried out by the State of Uttar Pradesh in the letter and spirit.

The bench observed that “Evidently, unauthorized structures in any public place such as roads, streets, footpath, abutting railway line or any river body or water bodies and also cases where there is an order for demolition made by a court of law are the exceptions to the general rule. In the present case, we find that on kilometer-38, of Kundasar-Mahasi-Nanpara-Maharajganj, District Road some notices have come to be issued to some persons for raising unauthorized constructions”

According to Live Law, the division bench, however, took strong exception an association’s filing of the PIL, saying that such petitions would have far-reaching consequences.

Background of the case

On October 13, 2024 (Sunday), a violent incident unfolded in Maharajganj, Bahraich, Uttar Pradesh, during a Durga Puja immersion procession. Tensions escalated when loud music was played near a mosque, leading to gunfire that tragically claimed the life of 22-year-old Ram Gopal Mishra, a local resident participating in the procession. This incident ignited widespread violence and communal unrest in the area. In the aftermath, mobs retaliated by vandalising and setting fire to numerous properties, including homes, shops, hospitals, and vehicles. Disturbingly, a video emerged showing Ram Gopal in a heated moment, removing a green flag from a rooftop and replacing it with a saffron flag, moments before he was shot. Authorities quickly responded, arresting five suspects linked to Mishra’s death following an encounter with Uttar Pradesh Police, during which two of the suspects sustained gunshot wounds. The suspects, identified as Mohammad Faheen, Mohammad Sarfaraz, Abdul Hameed, Mohammad Taleem (alias Sabloo), and Mohammad Afzal, were reportedly attempting to flee to Nepal. By October 18, the situation escalated further, with 87 individuals arrested in connection to the riots, and around 1,000 people booked after at least 11 FIRs were registered.

Following this, the families of the accused, along with 23 others, received notices from the Public Works Department (PWD) allowing them just three days to respond before proposed demolition actions against their properties. The Association for Protection of Civil Rights (APCR) challenged these notices, arguing they were served illegally and in violation of the Supreme Court’s earlier directive on September 17.

Simultaneously, a petition was also moved before the Supreme Court against the demolition issued by the Uttar Pradesh authorities Bahraich violence.

Unclear whether responded filed any reply or not: HC

While granting the time extension over the impugned demolition notices, the bench also commented on the uncertainty on whether the aggrieved individuals have filed any replies or sought recourse through other forums. Then bench observed that “The notices are issued to the persons concerned for participation in the proceedings through a reply to be submitted by them within three days. It is unclear in the pleadings as to whether the persons aggrieved have filed any reply or have approached any forum or not. In any case, notices issued against a limited number of persons who are to participate in the proceedings cannot be viewed to be a matter of general public importance, which may be taken cognizance of in a public interest litigation unless the vulnerability of an aggrieved person is such that he is established to be the one who is unable to approach the court for availing the remedy available under law”

High court granted 15 days’ time to affected families to file reply

The order is a significant intervention that emphasises the importance of direct involvement from those facing the notices in the proceedings. The bench stressed that those who have been served notices for demolition of the illegal structures on Kundasar-Mahsi-Nanapara-Maharajganj Road in Bahraich, have been directed to file their replies within 15 days and also ordered the State Authorities to consider the said replies and pass ‘speaking and reasoned’ orders on these replies..

“We expect the persons faced with the notices to participate with the proceedings in the meantime. We further provide that in case they file their reply to the notice within a period of 15 days from today, the competent authority shall consider and decide the same by passing a speaking and reasoned order which shall be communicated to the parties aggrieved” the bench directed.

The matter is listed for October 23, 2024 for next hearing.

The order of Allahabad High Court dated October 20, 2024 may be read here:

Related:

Supreme Court halts nationwide demolitions through interim order, emphasising the ethos of the Constitution

Supreme Court rebukes “Bulldozer Justice,” plans to issue nationwide guidelines to prevent arbitrary demolitions

Report: 294 houses demolished on a daily basis in 2023 in India

The post Bahraich Violence: Allahabad High Court grants 15 days to affected persons to respond on demolition notices appeared first on SabrangIndia.

While declining the bail application of a Maulana, Mohd Shane Alam, the Allahabad High Court bench of Justice Rohit Ranjan Agarwal said that any ‘religious converter’ partaking in any manner to facilitate ‘illegal conversion’, would be liable to be punished under the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021. The case against Alam had been filed under the UP anti-conversion law at the Ankur Vihar Police Station in Ghaziabad (Case Crime No.183 of 2024).

As per the complainant, the accused “Amaan had physically exploited her and forced her to accept “Islam” and Nikaah was performed on March 11, 2024, performed by a ‘Religion Converter’, the applicant.” Alam pleaded that “he had only performed Nikah of the Informant with the accused Amaan and had not forcibly converted the Informant to ‘Islam’. He does not have any criminal history and is languishing in jail since June 2, 2024.” Alam also said that he had no role to play beyond providing his stamp and signature on Nikaahnama.

Justice Agarwal wrote that “Section 2(a), (b), (c), (d) & (i) of the Act, 2021 define ‘Allurement’, ‘Coercion’, ‘Conversion’, ‘Force’, ‘Religion Convertor’” and “Similarly, “Religion Convertor” means person of any religion who performs any act of conversion from one religion to another religion and by whatever name he is called such as Father, Karmkandi, Maulvi or Mulla etc.” He further explained that Section 3 of the anti-conversion law prohibits unlawful religious conversion while Section 8 mandates that necessary declaration has to be obtained before conversion from the District Magistrate (DM). These are clearly words of slur and stigma used in the judgement

The verdict notes that in present case, “the applicant, who comes under the definition of “Religion Convertor”, as defined in Section 2 (i) of Act, 2021, had got the Nikaah ceremony of the Informant performed with accused Amaan” without providing necessary declaration to the DM as required under Section 8 of the Act and the breach of this requirement is punishable under Section 5 of the given Act. The judgement reads that “…she was forced to accept ‘Islam’ and Nikaah was performed. The applicant being “Religion Convertor” is equally liable under the Act, 2021.”

Commenting on the issue of conversion and the anti-conversion legislation created by the state of Uttar Pradesh, the judge remarked that “The statement of objects and reasons for enacting this Act was to sustain the spirit of secularism in India. The Constitution of India guarantees the religious freedom to all persons which reflects the social harmony and spirit of India.” “However, in the recent past many such examples came to light where gullible persons have been converted from one religion to another by misrepresentation, force, undue influence, coercion, allurement or by fraudulent means.”

The court dismissed the bail application of the petitioner noting that prima facie an offence under the anti-conversion law is made out against the accused.

The copy of the judgement can be found here:

Related:

Allahabad HC’s recent judgement dubbed “saffron-tinged”, “fuelling fear among Christians,” says United Christian Forum | SabrangIndia

Conversion approval not required for interfaith marriage registration: Allahabad HC | SabrangIndia

Right to choose a partner is intrinsic to Right to life & personal liberty: Allahabad HC | SabrangIndia

Allahabad HC rejects bail plea in alleged conversion case; stating Article 25 does not provide right to convert religion | CJP

The post Allahabad HC: Religious converter, “Father, Karamkandi or Mulla” assisting in ‘forceful religious conversion’ can be prosecuted under UP anti-conversion law appeared first on SabrangIndia.

He added, that it is against the Constitutional mandate of Article 25 of the Constitution which does not provide for religious conversion, it only provides freedom of conscience and free profession, practice and propagation of religion. The Court also noted that in several cases unlawful activity of conversion of people of SC/ST castes and other castes including economically poor persons into Christianity is being done at rampant pace throughout the State of Uttar Pradesh. The Court on expected lines, denied bail to the accused.

Exactly a week later, on 9 July, the same judge Agarwal sang the exact same tune, denying bail to yet another accused in a case of alleged ‘illegal conversion’. He observed that the right to freedom of conscience and religion cannot be constituted as the right to convert others! He once again categorically stated that, “The Constitution confers on each individual the fundamental right to profess, practice and propagate his religion. However, the individual right to freedom of conscience and religion cannot be extended to construe a collective right to proselytize; the right to religious freedom belongs equally to the person converting and the individual sought to be converted.” 

The High Court referred to certain sections of the UP Government’s anti- conversion law of 2021. It noted that Section 3 of the 2021 Act clearly prohibits conversion from one religion to another based on misrepresentation, force, fraud, undue influence, coercion, and allurement. It further observed, that the Act provides for punishment for contravention of the provisions of the section, which also restricts a person from abetting, convincing, or conspiring to such conversion. Further, the Court stated, that the Act was enacted keeping in view Article 25 of the Constitution of India, which does not allow or permit any citizen to convert any citizen from one religion to another religion. Bail was also denied to the accused in this case!

Within a week, the same judge gave similar orders (patently unconstitutional) and denied bail to the accused. The charges against the alleged accused are unwarranted and unsubstantiated. The counsel of the accused, in the second case, had categorically submitted to the High Court that, ‘the FIR does not identify any “religion converter” as defined by Section 2(I)(i) of the 2021 Act. It was further submitted that the witnesses’ statements alleging undue influence for conversion were unsubstantiated. Finally, it was contended that no person who had converted to Christianity came forward to lodge a complaint. On the other hand, the AGA submitted that a case under Section 3/5 of the Act of 2021 was made out against the applicant, a resident from Andhra Pradesh.’ 

The points in contention, are the following:

• Article 25 of the Constitution (Freedom of conscience and free profession, practice, and propagation of religion) guarantees the freedom of conscience, the freedom to profess, practice, and propagate one’s religion, to all citizens;
• whoever has claimed that Article 25 gives one ‘the right to convert’?
• however, if one (an adult) freely embraces (converts to) another religion of one’s choice or for that matter, ‘stops believing that God exists’, who is the State or the Court to intervene?
• where is it written that ‘collective’ propagation of one’s religion, is not permitted?
• Article 18 of the Universal Declaration of Human Rights (to which India is a signatory) states, “everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief in teaching, practice, worship and observance”.
• denying a person bail, when it is not a serious crime, goes against the principle of natural justice

Interestingly, several BJP- ruled States in the country have enacted anti-conversion laws (Rajasthan may be the next State to do so).  This is clearly a ploy, a bogey, to defocus from more serious issues which plague the country today!  Without any statistics to defend his arguments, Justice Agarwal is very frightened that “the majority population will become a minority in India one day” Even if his funda ‘fears’ are true, he will first need to answer the question WHY? Why are the people of India embracing Christianity or for that matter, any other religion?

Instead of ‘criminalising conversions’, the learned judge should take a cue from Dr B. R. Ambedkar and his conversion to Buddhism! Ambedkar’s conversion to Buddhism was not born of fantasy nor was it a sudden overnight decision. He had spent over twenty years studying various religions and discerning which one would be most suited for him and the down-trodden masses for whom he spoke. Addressing a huge gathering of Mahars in Bombay in May 1936 he transparently shared his ideas on conversion and why he considered it to be the best and only route towards emancipation. He unequivocally and courageously stated, “I tell you all very specifically, religion is for man and not man for religion; to get human treatment, convert yourselves”

Significantly, on 1 April 2021, the Gujarat Legislative Assembly amended the Gujarat Freedom of Religion Act 2003 which deals with instances of forcible religious conversions for marriage. This newly enacted amendment was challenged before the Gujarat High Court through writ petitions, on the grounds that it violated certain fundamental rights.  The Gujarat High Court passed an interim order prohibiting its application to inter-faith marriages. Observations of the Court in the aforementioned order provide useful insights in the aspects of freedom of marriage, free choice, and their significance under Article 21 of the Constitution of India (Right to Life). The Court also questioned the constitutional validity of such an “anti-conversion” law in light of established judicial precedents.

Addressing a public gathering on the 2003 Gujarat Law at the Nehru Centre in London on 11 June 2003, eminent Jurist and former Solicitor General of India, the late Mr. Soli Sorabjee said, “The Gujarat legislation goes one step further and provides that the person who is converted has also to seek permission from the District Magistrate about the fact of such conversion. Failure to comply with these statutory provisions invites severe punishment of imprisonment and fine. These provisions are objectionable. They intrude on a person’s right to privacy. One’s religious belief is essentially a private matter as is conversion from one’s religion to another.  It is a result of deep-seated inner convictions. The State laws have the effect of deterring genuine conversions and impairing the substance of religious freedom guaranteed by the Constitution. These laws have further shaken the confidence of the minority communities and accentuated their sense of insecurity.”

Instead of pathetically exposing his communal mindset, there is plenty, which the Allahabad High Court judge, needs to learn on Constitutional matters: justice and propriety!

(Fr. Cedric Prakash SJ is a human rights, reconciliation & peace activist/writer. Contact: cedricprakash@gmail.com )

The post Criminalising ‘Conversions’! appeared first on SabrangIndia.

Stating that Christians are as much citizens of India as anyone else and deserve equal protection under the law, the statement says that the constitutional Court should have limited its focus to the criminal law aspect of the case rather than being swayed by “majoritarian religious considerations and making sweeping statements about a specific religious community.” Further, the statement says that the UCF is concerned that these observations could expose the Christian community to further persecution.

The UCF has also pointed out that Christians in several parts of India, including Uttar Pradesh, Chhattisgarh, Madhya Pradesh, Manipur, and Rajasthan, face targeted violence. Analysing constitutional provisions, the statement says that the High Court failed to distinguish between voluntary and forced conversions and made several statements, such as:

• “It (conversion)is against the Constitutional mandate of Article 25.”
• “…such religious congregation should be immediately stopped where conversion is taking place and changing the religion of citizens of India.”
• “Unlawful activity of conversion of people of SC/ST castes and economically poor persons into Christianity is rampant throughout Uttar Pradesh.”
• “…it (Article 25) does not provide for conversion from one faith to another.”

Article 25 guarantees individuals the freedom to change their religion according to their conscience. The Court’s judgement suggests that conversion is against religious freedom, which contradicts various Supreme Court decisions upholding the right to change one’s faith. Additionally, the constitutional validity of several “anti-conversion” laws is currently under challenge before the Supreme Court.

“Despite no convictions for conversions via allurement in Uttar Pradesh, many cases have been filed under anti-conversion laws. In 2023, 733 hostile acts against Christians were reported to the UCF Helpline alone, and nearly half came from Uttar Pradesh. A People’s Union for Civil Liberties (PUCL) report titled Criminalizing Practice of Faith documented police collusion with self-described ‘Hindutva’ groups, noting frequent disruptions of Christian practices. Such mobs typically mobilise attackers, alert police about purported ‘forced conversions,’ and vandalise churches, recording and circulating videos of these actions. A petition calling for stringent measures against such vigilante groups remains pending before the Supreme Court.”

“Several ‘anti-conversion’ legislations mandate that only an affected person register a complaint. However, police often arrest Christians based on complaints from these self-ascribed “Hindutva” groups claiming prior knowledge of ‘forced conversions.’”

Article 14, a legal research group, has analysed over a hundred FIRs filed under the anti-conversion law in Uttar Pradesh and discovered that of these, 63 were based on third-party complaints, including 26 from organisations affiliated with the “Hindutva” political ideology. Researchers have documented how anti-conversion laws are used to target religious minorities. False cases can persist for years, justifying brutality and violence against Christians accused of conversion, violating their rights to life and liberty.

Despite the violent consequences we saw in Manipur after the communally coloured baseless statement of the Manipur High Court in W.P.(C) No. 229 of 2023, which was recalled after the Supreme Court’s observations, it is unfortunate that such incidents are repeated with impunity. Earlier in the murder case of Graham Stains, the Apex Court itself suo moto expunged the expression “Converting poor tribals to Christianity”, following public outcry and criticism from various quarters.

Given all these established precedents, the United Christian Forum has respectfully urged the Hon’ble Allahabad High Court to suo moto expunge the sweeping allegations made against the entire Christian community from the order dated July 1, 2024, considering the dangerous ramifications.

Related:

Allahabad High Court rejects bail plea in alleged conversion case; says Article 25 does not provide right to convert religion

Allahabad HC: Repeated rejection of police protection pleas of interfaith couples, here’s why this is problematic | CJP

Allahabad High Court quashes FIR against couple accused of ‘conversion’ accusations, upholds freedom of choice | CJP

Allahabad and Madhya Pradesh High Courts issue conflicting rulings on interfaith marriage under Special Marriage Act | CJP

Allahabad High Court stands firm on personal liberty interfaith marriage ruling | CJP

The post Allahabad HC’s recent judgement dubbed “saffron-tinged”, “fuelling fear among Christians,” says United Christian Forum appeared first on SabrangIndia.

On July 1, the single judge bench of Rohit Ranjan Agarwal at the Allahabad High Court rejected the bail plea of one Kailash, who is booked under Uttar Pradesh’s stringent anti-conversion law (The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021) and accused of ‘illegally’ converting villagers in Uttar Pradesh’s Hamirpur to Christianity. While rejecting the bail application, the court said “It has come into notice of this Court in several cases that unlawful activity of conversion of people of SC/ST castes and other castes including economically poor persons into Christianity is being done at rampant pace throughout the State of Uttar Pradesh. This Court, prima facie, finds that the applicant is not entitled for bail.” Pertinently, as per the FIR, the accused has been booked under Section 365 of the IPC (Kidnapping or abducting with intent secretly and wrongfully to confine person) and Section 3/5(1) of the U.P. Prohibition of Unlawful Conversion of Religion Act, 2021 (punishment for illegal conversion).

Significantly, in 1977, in a significant ruling –Rev. Stainislaus v. State of Madhya Pradesh [(1977) 1 S.C.C. 677)] – a five-judge bench of the Supreme Court made a distinction between propagation and conversion, and ruled that the former is a fundamental right while the latter is not an absolute right.

As per the complainant (“informant”) Rampali Prajapati, Kailash had taken away her mentally ill brother from Hamirpur to Delhi for attending the social gathering and ceremony for the “well-being”, and promised to treat her brother’s illness while assuring his return to the village in a week. As per the FIR registered at Maudaha Police Station in Hamirpur district (No.201 of 2023), when the informant asked about the whereabouts of her brother as he did not return after a week, no satisfactory response was provided by the accused. The FIR also mentions that many persons from the same village were taken to such gatherings and were converted to Christianity.

Kailash’s lawyer Saket Jaiswal rejected the charges and argued that Ramphal, brother of the complainant, was not converted to Christianity and he is not Christian to date. He further said that Ramphal had merely attended the gathering of Christian faith along with several other persons and the statements of various persons recorded by police cannot be taken into consideration at this stage. Jaiswal also brought to the notice of the court that Sonu Paster, who was holding such gathering, has already been enlarged on bail.

In response, the prosecution relied on the “statements of the witnesses” to contend that Kailash had been taking away people from his village for the purpose of converting them to Christianity, and for this act he was being paid huge money.

The problematic interpretation of Article 25 by the Allahabad High Court

After hearing both the parties, Justice Agarwal in his concluding remarks noted that “Article 25 of the Constitution of India provides for Freedom of conscience and free profession, practice, and propagation of religion, but it does not provide for conversion from one faith to another faith.”

The relevant part of the Article 25 of the Indian Constitution reads, “Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion. (2) Nothing in this article shall affect the operation of any existing law or prevent the State from making any law— (a) regulating or restricting any economic, financial, political or other secular activity which may be associated with religious practice…”.

On the interpretation of “Propagation” as mentioned in Article 25, the verdict notes that the said word “…means to promote, but it does not mean to convert any person from his religion to another religion.” Notably, it does not cite any judicial precedent or case law at any place in its order for supporting its interpretation or judicial reasoning.

Conclusion

The judgement notes that “serious allegations” have been raised against the accused and the statements recorded by investigating officer reveal that “Kailash had been taking away people to attend the religious congregation held at New Delhi, where they are being converted into Christianity.” Furthermore, the court said the brother of the informant never returned back to the village. Justice Agarwal wrote in its concluding remarks that “If this process is allowed to be carried out, the majority population of this country would be in minority one day, and such religious congregation should be immediately stopped where the conversion is taking place and changing religion of citizen of India.”

The judgement curiously maintains that Article 25 of the Indian Constitution does not allow religious conversion, but “only provides freedom of conscience and free profession, practice and propagation of religion.” Such judicial interpretation devoid of any reliance on judicial precedent is dangerous and deleterious for the fundamental rights of the citizens as it ends up upending the very purpose of Part III of the Indian Constitution which guarantees inviolable basic rights to its citizenry, including right to practice and propagate religion as contained in Article 25. Even the draconian anti-conversion laws enacted by several states across India, which severely restricts religious and personal freedom, including freedom to convert one’s religion, does not unqualifiedly ban the conversion as this judgement seems to do. Most importantly, while these anti-conversion laws have been challenged as unconstitutional and violative of Article 25, among others, the present judgement says that Article 25 itself proscribe religious conversion!

In the landmark case of Rev. Stainislaus v. State of Madhya Pradesh [(1977) 1 S.C.C. 677)], the five-judge bench of the Supreme Court made a distinction between propagation and conversion, and ruled that the former is a fundamental right while the latter is not an absolute right. The judgement said that the freedom to propagate religion does not include the right to convert another person to one’s own religion but qualified that such a conversion would be illegal only if it is done by force, fraud, or allurement.

The Allahabad High Court judgement can be read here:

Related:

Allahabad HC: Repeated rejection of police protection pleas of interfaith couples, here’s why this is problematic | CJP

Allahabad High Court quashes FIR against couple accused of ‘conversion’ accusations, upholds freedom of choice | CJP

Allahabad and Madhya Pradesh High Courts issue conflicting rulings on interfaith marriage under Special Marriage Act | CJP

Allahabad High Court stands firm on personal liberty interfaith marriage ruling | CJP

The post Allahabad High Court rejects bail plea in alleged conversion case; says Article 25 does not provide right to convert religion appeared first on SabrangIndia.

In a recent case involving Naziya Ansari and her husband Mohammad Umar brought further attention to the rights of individuals in interfaith marriages. The Allahabad High Court criticised the Uttar Pradesh Police for handing over 21-year-old Naziya to her uncle against her will. Naziya and Umar had filed a petition alleging police misconduct after Naziya claimed she ran away from home and married Umar in Hyderabad. Despite her statement to a magistrate expressing fear for her life if sent back to her uncle, the police disregarded her plea and threatened Umar with arrest.

The court emphasised that adults have the constitutional right to marry and live with whom they choose, protected under Article 21 of the Indian Constitution, which guarantees personal liberty. The court criticized the magistrate for failing to protect Naziya and held the police accountable for not ensuring her safety.

“Even if the petitioners have not married each other, no one can restrain an adult from going anywhere that he/she likes, staying with a person of his/her choice, or solemnizing marriage according to his/her will or wish. This is a right which flows from Article 21 of the Constitution”

The court ordered the quashing of the FIR against Umar, directed that Naziya be allowed to live freely without interference from her uncle, and made it clear that the police officers would be personally responsible if any harm befell her. The court also underscored the importance of protecting human life from honor killings or any form of harm due to societal or familial pressures by stating that the magistrate ought to have also taken adequate measures to secure the woman’s safety.

“Honour killing in such matters is not an unknown phenomenon and it is very important to save a human life from extinction on account of misguided emotions or notions of morality. This issue is quite independent of the issue of matrimony that the parties have entered into. No citizen can kill another for holding a different opinion and it is the foremost duty of the State to preserve human life,” 

The order may be read here:

Mixed, conflicting and contentious judgments

While this judgment is indeed a step in the right direction, interfaith couples in India continue to face significant challenges due to conflicting judicial rulings and societal attitudes. The legal landscape is fraught with inconsistencies, which often result in a lack of uniform protection for interfaith couples. For instance, despite the strong stance taken in Naziya Ansari’s case, other judgments have upheld restrictions on interfaith relationships under various state laws, such as the UP Prohibition of Unlawful Conversion of Religion Act, 2021. This act, and similar laws in other states, require couples to follow stringent procedures for religious conversion and marriage, often leading to harassment and legal obstacles. Additionally, some courts have interpreted these laws in ways that effectively criminalize interfaith relationships unless they conform to prescribed legal norms.

These conflicting judgments create a precarious environment for interfaith couples, who find themselves at the mercy of varying legal interpretations and local enforcement practices. For instance, the Allahabad High Court itself has delivered decisions both supporting and restricting interfaith relationships, contributing to an unpredictable legal environment. Such inconsistency not only undermines the rule of law but also exacerbates the social stigma and threats faced by interfaith couples. Despite progressive judgments like that of Naziya Ansari, the struggle for interfaith couples is far from over. They continue to navigate a legal system that can alternately protect or endanger them, depending on the interpretation of the law by individual courts.

In light of this, CJP’s research team will point out some conflicting judgments that highlight the ongoing struggle for consistent legal protection for interfaith couples in India.

Contrasting Judgments by the Allahabad High Court

Justice Renu Agarwal’s rulings exemplify the prioritization of religious and customary laws over constitutional protections. In February 2024, she denied protection to a Muslim woman in a live-in relationship with a Hindu man, ruling that the woman was committing ‘Zina’ and ‘Haram’ according to Shariat Law. This decision underscores how subjective interpretations of personal laws can supersede the constitutional rights guaranteed under Article 21 (right to life and personal liberty) and Article 14 (equality before the law) of the Indian Constitution.

The order can be read here:

In January 2024, the Allahabad High Court dismissed petitions from eight Hindu-Muslim couples based on non-compliance with the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021. This act requires prior notice and approval for religious conversion, imposing stringent bureaucratic hurdles for interfaith marriages. The court’s insistence on compliance with these laws further complicates the legal process for couples wishing to marry under their personal beliefs and choices. In Ayesha Parveen’s case, the court dismissed a petition due to non-compliance with the anti-conversion law, despite the couple’s willingness to practice their respective religions post-marriage. In the case of Farah B Kumar v. State of UP, the bench of Justice Saral Srivastava again rejected the protection plea of the interfaith couple filed by one Farha on exactly the same ground as it mentioned in the above judgment. Similarly, in Nagma Bano’s case, the court rejected a petition for protection despite claims of forced remarriage, emphasizing societal norms over individual rights and safety.

A detailed analysis of these petitions can be read at Sabrang India.

The Allahabad High Court’s refusal to grant police protection to interfaith couples has faced significant criticism. These decisions often hinge on non-compliance with anti-conversion laws and the lack of marriage registration proof, leading to a discriminatory practice. Couples from the same religion without marriage certificates often receive protection, while interfaith couples do not. This practice directly contradicts Supreme Court guidelines, as emphasized in Devu G Nair vs State of Kerala, which mandate immediate interim protection for vulnerable couples, including interfaith, inter-caste, and LGBTQ+ couples. The Allahabad High Court’s rulings have been criticised for undermining these constitutional protections and emphasizing social morality over individual rights.

The Allahabad High Court in the case of the Salamat Ansari vs. State of UP case protected an interfaith couple, recognizing their fundamental right to live together, even after the woman had converted to her partner’s religion. This decision relied on Supreme Court judgments that upheld the right to personal liberty and freedom of choice in relationships, highlighting a more progressive approach in protecting interfaith couples’ rights. This judgment overturned Noor Jahan Begum @ Anjali Mishra and Another vs. State of U.P. and Others and Priyanshi @ Km. Shamren and others Vs. State of U.P. and Another which held that, conversion only for the purpose of marriage is invalid.

The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021, requires prior notice and approval for conversion, making it difficult for interfaith couples to get married without facing legal and social obstacles. On March 13, the Bench of Justice Mahesh Chandra Tripathi and Gajendra Kumar clarified that the issue was about individual liberty and the right to choose a partner, as guaranteed under Article 21 of the Constitution. The court noted that the petitioners were adults who married of their own free will under the Special Marriage Act, referencing the Salamat Ansari vs. State of UP case, which upheld the right to choose a partner irrespective of religion as part of the fundamental right under Article 21. Additionally, it cited Gian Singh vs. State of Punjab, differentiating between heinous crimes and private disputes, justifying the quashing of the criminal proceeding.

In the case of Razia and Another v. State of U.P. and Others, the court ruled that noted that interfaith couples are free to live together in a live-in relationship, and their parents cannot interfere. However, in the recent case of Shilpa Alias Shikha and Another vs. State Of U.P. Through Principal Secretary Home Department, Lucknow and Others the court held that Section 3(1) of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021 prohibits live-in relationships between couples of different religions unless they undergo religious conversion according to the law. The court highlighted that the UP Prohibition of Unlawful Conversion of Religion Act, 2021, applies not only to marriages but also to relationships resembling marriage or live-in relationships. The court therefore, ruled that the FIR could not be quashed as the couple had not solemnized their marriage in accordance with the law.

Both the orders can be read here:

LiveLaw reported on May 31, 2024 that the Allahabad High Court has emphasized that interfaith couples can marry under the Special Marriage Act (SMA) without the need for religious conversion. In a recent case, the court granted protection to an interfaith live-in couple seeking to marry under the SMA, highlighting the judiciary’s role in safeguarding personal liberty and life choices against societal and familial pressures. The court directed the couple to demonstrate their bona fides by taking steps to solemnize their marriage under SMA and submit documentary proof via a supplementary affidavit.

How this is problematic

The Allahabad High Court’s conflicting judgments regarding interfaith relationships create a problematic and unpredictable legal environment for couples seeking protection of their rights. These inconsistencies not only undermine the constitutional guarantees of personal liberty and equality before the law but also perpetuate discrimination against interfaith couple. Firstly, the court’s denial of protection to interfaith couples in live-in relationships on the grounds of Islamic customary law and non-compliance with anti-conversion laws raises serious concerns. The court in these cases prioritized customary and religious laws over constitutional protections, which is problematic because it allows subjective interpretations of personal laws to supersede fundamental rights guaranteed under the Constitution of India. The insistence on compliance with anti-conversion laws adds an additional layer of legal and bureaucratic hurdles, effectively denying protection to couples who wish to marry under their personal beliefs and choices.

Secondly, the rejection of police protection for interfaith couples based on these interpretations violates their constitutional rights, including Article 21 (right to life and personal liberty) and Article 14 (equality before the law). Previous Supreme Court rulings, such as in Shakti Vahini vs. Union of India and Shafin Jahan vs. Ashokan K.M, uphold the right to marry a person of one’s choice as integral to Article 21. The Allahabad High Court’s decisions often contradict these precedents, prioritizing social morality over constitutional protections. This discriminatory practice provides protection to same-faith couples with marriage certificates while imposing additional hurdles on interfaith couples, exposing them to potential harassment and violence. However, the Allahabad High Court’s decisions contradict these precedents, prioritizing social and religious norms over individual autonomy and constitutional rights.

Moreover, the inconsistency in judicial decisions creates confusion and uncertainty for interfaith couples. Couples face the risk of harassment, intimidation, and violence due to the lack of legal protection and clear guidelines. The pattern of rejection in the Allahabad High Court, especially under judges like Justice Renu Agarwal, who have consistently denied protection to unmarried couples, underscores the bias against interfaith relationships.

The court’s insistence on religious conversion as a prerequisite for protection further exposes couples to privacy violations and threats to their safety. This requirement not only disregards the secular nature of the Indian Constitution but also perpetuates discrimination against minority communities and vulnerable individuals.

Furthermore, these conflicting judgments do not align with Supreme Court guidelines that mandate immediate interim protection for vulnerable couples, including interfaith and inter-caste couples. The Allahabad High Court’s decisions undermine the principles of justice, fairness, and non-discrimination that are fundamental to a democratic society governed by the rule of law.

The way forward: building a bridge of understanding

The battle for legal acceptance of interfaith marriages in India is far from over. However, the path forward is clear. By prioritizing a consistent and rights-based approach, India can move towards a future where love transcends religious boundaries. Here’s what needs to happen:

The Indian judiciary, particularly the Allahabad High Court, must adopt a unified interpretation of laws concerning interfaith relationships. This demands prioritizing fundamental rights enshrined in the Constitution, such as individual liberty and freedom of religion. Courts must move away from subjective interpretations of religious laws that can supersede these fundamental rights.

The constitutionality of anti-conversion laws in several Indian states deserves thorough examination. These laws, often used to harass and intimidate interfaith couples, raise concerns about their compatibility with the secular fabric of the Indian Constitution. A Supreme Court review is essential to ensure these laws don’t infringe on individual rights and the freedom to choose one’s faith.

Clear and unambiguous guidelines for police intervention in interfaith relationship disputes are crucial. Police training programs must emphasize the rights of individuals in interfaith relationships and the importance of upholding the rule of law. This will prevent instances of police bias and ensure the safety of vulnerable couples.

Conclusion

To summarise, the key takeaway is the inconsistency in the court’s decisions. On one hand, the court upholds the constitutional right to marry whomever one chooses. On the other hand, it prioritizes religious laws and anti-conversion legislation, creating hurdles for interfaith couples. This inconsistency exposes couples to legal uncertainty, potential discrimination by law enforcement, and societal pressures.

Moving forward, a unified approach based on fundamental rights enshrined in the Constitution is crucial. The judiciary needs to prioritize individual liberty and freedom of religion. Anti-conversion laws need scrutiny to ensure they don’t infringe on individual rights. Clear police guidelines and social awareness campaigns promoting tolerance are also essential.

The battle for legal acceptance of interfaith marriages in India requires a multi-pronged approach. By prioritizing a consistent, rights-based approach, India can create a future where love transcends religious boundaries.

CJP’S fight against the Anti Conversion Laws

In December 2020, Citizens for Justice and Peace (CJP) filed a Writ Petition in the Supreme Court, challenging the constitutionality of law anti conversion laws which are based on unfounded fears dubbed ‘love-jihad’. These laws violate personal liberty, freedom of choice, privacy, and conscience by restricting inter-faith marriages.

‘Love-jihad’ refers to interfaith marriages where a Muslim man is accused of courting a Hindu woman to convert her to Islam. Ministers from Uttarakhand, Uttar Pradesh, Madhya Pradesh, Himachal Pradesh, Gujarat, and Karnataka publicly vowed to introduce laws against ‘love-jihad’.

CJP’s petition referenced the Supreme Court’s 2018 ruling in Shafin Jahan v. Asokan K.M., affirming the fundamental right to change religion, as well as cases such as KS Puttaswamy v. Union of India (2017), Shakti Vahini v. Union of India (2018), and Indian Young Lawyers Association v. The State of Kerala (2019), which emphasized the importance of privacy, choice, and religious beliefs in upholding dignity.

The petition was heard by a 3-Judge Bench led by Chief Justice S.A. Bobde, along with Justices V. Ramasubramanian and A.S. Bopanna, who issued notices to the concerned states.

Subsequently, Himachal Pradesh (2019) and Madhya Pradesh (2020) enacted Anti-Conversion laws similar to those in Uttarakhand and Uttar Pradesh. In February 2021, CJP applied to include these enactments in their original petition, which was granted by Chief Justice Bobde’s Bench.

On January 16, 2023, a 3-Judge Bench led by Chief Justice D.Y. Chandrachud, with Justices P.S. Narasimha and J.B. Pardiwala, began hearing the petition as it remained pending.

While CJP’s petition is still pending, Gujarat (2021), Haryana (2022), and Karnataka (2022) enacted their own Anti-Conversion laws. However, the Gujarat High Court stayed several sections of the Gujarat Freedom of Religion (Amendment) Act on August 19th, 2021.

Related:

Allahabad High Court quashes FIR against couple accused of ‘conversion’ accusations, upholds freedom of choice

Allahabad HC: Repeated rejection of police protection pleas of interfaith couples, here’s why this is problematic

SC issues notice to 5 states in CJP’s renewed challenge to anti-conversion laws

Allahabad HC denies protection to inter-faith couple observing that “Muslims cannot claim right to live-in relationship as it is against their customary law”

Allahabad and Madhya Pradesh High Courts deliver two contradictory judgments on interfaith marriage without conversion under Special Marriage Act (SMA)

The post Love vs Law: Allahabad HC verdict offers hope, but inconsistencies persist appeared first on SabrangIndia.

In the month of May this year, two starkly contradictory judgements have been delivered on the interpretation of Special Marriage Act (SMA) and personal laws which can have significant bearing on interfaith couples intending to marry under SMA and seeking police protection. On May 27, the Jabalpur bench of Madhya Pradesh High Court gave a verdict rejecting the police protection plea of the interfaith couple facing threats from family members and intending to marry under SMA. The verdict written by Justice G.S. Ahluwalia said that under Muslim personal law, a marriage between a Muslim man and a Hindu woman would be invalid/irregular (fasid) unless a Hindu woman converts to Islam (or Christianity or Judaism) and the provision under Section 4 of the Special Marriage Act provides that “if the parties are not within prohibited relationship then only marriage can be performed.” Thus, the court interpreted invalid/irregular marriage (fasid) as prohibited relationship under Section 4 of the SMA. Notably, in this case, the man and woman had filed an affidavit submitting that neither of them intends to convert their faith and they will continue to follow their existing faith.

On May 14, the Allahabad High Court bench of Justice Jyotsna Sharma delivered a separate order on the petition of the interfaith couple seeking police protection plea to avoid unwanted interference by the relatives and directed the police to ensure that police protection is provided to the interfaith couple. The couple had prayed to the court that they intend to marry each other under Special Marriage Act (SMA) without converting their religion. Furthermore, the petitioners claimed that they are unable move freely and complete their marriage registration process under SMA due to threats faced by them from the relatives and anti-social elements.

The prosecution had opposed their plea, arguing that the couples got married as per marriage agreement, which is not recognised in law, and therefore, no protection can be given. While the judge agreed with the prosecution that “marriage through agreement is definitely invalid in law”, she also said that “However, law does not prevent the parties from applying for court marriage under the Special Marriage Committee, without conversion.” Thus, the court effectively provided an interim relief to the petitioners who were living in live-in relationship as husband and wife by providing police protection to them even as it asked the petitioners to solemnise their marriage under SMA by the next date of hearing, i.e., July 10. The judgement made it clear that interfaith couples can marry under Special Marriage Act, without relying on any personal law, provided they do not intend to convert their religion.

The problematic interpretation of Madhya Pradesh High Court regarding SMA and personal laws

The Special Marriage Act, 1954 (SMA) was enacted with the specific purpose of allowing interfaith and interreligious couples to marry and register their marriage as such without relying on the parties’ respective personal laws, which are broadly speaking conservative and restrictive, and directly or indirect aimed at ensuring endogamy. The statement of objects and reasons for the SMA Bill had noted that the purpose of the Bill is “to provide a special form of marriage which can be taken advantage of by any person in India and by all Indian nationals in foreign countries irrespective of the faith which either party to the marriage may profess.” Resultantly, the MP High Court verdict flies in the face of the objectives of the SMA, and furthermore, its interpretation of Section 4 of the SMA is flawed as reported by ThePrint. Section 4(d) of the SMA states that special marriage can be solemnised under the Act, provided that “the parties are not within the degrees of prohibited relationship”. It also explains that “where a custom governing at least one of the party’s permits of a marriage between them, such marriage may be solemnized, notwithstanding that they are within the degrees of prohibited relationship”. Thus, the provision clearly reveals its facilitative and liberal nature unlike the restrictive one interpreted by the court. Significantly, speaking with the lawyers on the subject ThePrint found that “prohibited relationship” as mentioned in Section 4 of the Act has nothing to do with “difference in religion” as interpreted by the court, but it is instead aimed at restricting marriages among blood relatives or consanguine relationships. Thus, the court has wrongly interpreted “prohibited relation”, which does not include inter-religious relationships.

Moreover, the court has heavy relied on Muslim personal law to reject the petitioners’ plea and conclude that interfaith couple cannot marry under SMA under the woman converts to Islam. The court’s reasoning in this case is based on Muslim personal law, which classifies marriage into three distinct categories, namely, valid (sahih), invalid (fasid), and void (batil). While batil marriages are unlawful ab-initio and irremediable, fasid marriage are invalid/irregular due to extraneous circumstances and can be remedied to make it valid. In the present case, the only way to remedy the invalid marriage under Muslim personal law would have been for the girl to convert to Islam (or Christianity or Judaism), but this cannot take place, as the couple had already informed the court about their decision to not change their religion. As a result, the court concluded that marriage under personal law would not be possible in the present case, and given the court’s interpretation about Section 4 of the SMA, it noted that the petition cannot be maintained as the valid marriage cannot take place due to non-compliance with the provisions of the Muslim personal law and SMA. The judgement reads, “marriage under Special Marriage Act would not legalise the marriage which otherwise is prohibited under personal law. Section 4 of Special Marriage Act provides that if the parties are not within prohibited relationship then only marriage can be performed.”

The verdict cites Mulla Principles of Mahomedan Law to underline the issue of prohibited marriage due to “Difference of religion” in the personal law and quotes from multiple editions of Mullah to underscore that “(1) A Mahomedan male may contract a valid marriage not only with a Mahomedan woman, but also with a Kitabia, that is, a Jewess or a Christian, but not with an idolatress or a fire-worshipper. A marriage, however, with an idolatress or a fire-worshipper, is not void, but merely irregular.” It further states that “since Hindus are idol worshippers, which includes worship of physical images/statues through offering of flowers, adornment, etc., it is clear that the marriage of a Hindu female with a Muslim male is not a regular or valid (sahih) marriage, but merely an irregular (fasid) marriage.” Additionally, the order also states that as per the Muslim personal law, fasid marriage has no legal effect before consummation, and even after consummation, it creates no legal rights of inheritance between husband and wife.

Apart from undue and excessive reliance on the personal law, the judge also rejected the argument raised by the petitioners that since they want to perform marriage under the Special Marriage Act, Nikah would not be required under the personal law. Moreover, it did not address the Supreme Court judgement in the case of Lata Singh Vs. State of U.P. (Writ Petition (Crl.) 208 of 2004), which the petitioners relied on to seek police protection.

As the court dismissed the petition it said that “As per Mahomedan law, the marriage of a Muslim boy with a girl who is an idolatress or a fire-worshipper, is not a valid marriage. Even if the marriage is registered under the Special Marriage Act, the marriage would be no more a valid marriage and it would be an irregular (fasid) marriage.” Curiously, it also brought up the issue of live-in relationship and said that “It is not the case of petitioners that in case if marriage is not performed, then they are still interested to live in live-in relationship. It is also not the case of petitioners that petitioner No.1 would accept Muslim religion.”

The Madhya Pradesh High Court judgement may be read here:

The Allahabad High Court judgement may be read here:

Related:

Allahabad HC: Repeated rejection of police protection pleas of interfaith couples, here’s why this is problematic | CJP

Allahabad High Court quashes FIR against couple accused of ‘conversion’ accusations, upholds freedom of choice | CJP

CJP, other rights groups challenge Maharashtra Govt GR setting up a Committee to “monitor inter-faith marriages” | CJP

The post Allahabad and Madhya Pradesh High Courts deliver two contradictory judgments on interfaith marriage without conversion under Special Marriage Act (SMA) appeared first on SabrangIndia.

A close analysis of the judgements of the court has revealed a telling pattern. The married couples whose applications for police protection got rejected were either in an inter-faith relationship or those who did not have a valid marriage registration proof. It is also crucial to note that couples who were from the same faith or religion, as far as they had completed their marriage registration process, even if they did not have a valid marriage certificate, faced no such hurdles in getting police protection. This dichotomy has resulted in a situation where inter-caste couples within the same religion are readily able to secure the necessary protection from the courts while their counterparts who come from different religions are finding it difficult to secure police protection for their safety and liberty.

The culture of honour killing is not uncommon within conservative Indian families and the lack of protection for interfaith couples in the face of real-life threats not only affect their right to life and personal liberty but also their right to peaceful marriage, uninterrupted from external forces.

In the judgements delivered by Justice Saral Srivastava in January and the March 5 judgment of Justice Renu Agarwal, the judges have cited non-compliance with the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021 as one of the reasons for denying police protection to the interfaith couples. Prior to the implementation of this law, which was brought in to check what the Hindu-right calls “Love Jihad”, interfaith couples were still able to secure the protection. Though there are also other reasons for denying the protection, we are witnessing a growing trend where Allahabad HC is asking couples to first comply with the Conversion Act of 2021, and solemnize their marriage and register for the marriage certificates in compliance with the Act, in order to secure the protection of the law.

Citizens for Justice and Peace is the lead petitioner that has challenged the 2021 Uttar Pradesh Anti-Conversion law and a similar law passed in eight other states. The first petition challenging the anti-conversion laws of was filed in December 2020, which argued against the constitutionality of these laws enacted by the states of Uttar Pradesh (which initially issued it through an ordinance before enacting the Act), Uttarakhand, Himachal Pradesh, and Madhya Pradesh (WP Criminal Nos 428/2020). In December 2021, it filed another petition, this time challenging the similar laws passed by Chhattisgarh, Gujarat, Jharkhand, Haryana and Karnataka (WP Criminal Nos 14/2023). CJP argued that the said laws are violative of Article 14 (due process), 21 (right to life and personal liberty), and 25 (freedom of conscience and religion), and therefore unconstitutional.

The laws were challenged as excessively restrictive on the constitutional provisions related to fundamental rights on the following issues: autonomy of women and both partners on the issue of free choice, right to privacy, freedom to practice and propagate religion, secularism, and for creating gender stereotypes and excessive criminalisation. These laws essentially “aim” to restrict religious conversion for the sole purpose of marriage or vice versa, but their implementation reveals that they have been weaponised to target interfaith couples and marriages, thereby restricting the ability to marry a person of one’s choice and jeopardising the security of such partners.

In the meantime, the number of states which started enacting such laws grew as the petitions challenging these laws have been kept pending in the Supreme Court with attempts made by CJP for an urgent hearing and stay on the application of these laws. T Notably, CJP’s writ petition challenging UP’s anti-conversion law was last listed on April 25, 2023, almost a year ago.

Let us look at some of the cases to understand the implications for the fundamental rights of persons living in Uttar Pradesh.

Case Study

On January 10, 2024, the Allahabad HC bench of Justice Saral Srivastava dismissed a petition filed by one Ayesha Parveen for securing police protection. The judgement noted that, “It is a case of interfaith marriage as petitioner no.2 follows Muslim religion whereas petitioner no.1 is Hindu. In the instant case, there is no compliance of Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021, therefore, solemnisation of marriage between petitioner no.1 and petitioner no.2 is not in accordance with law.” Thus, the court dismissed their petition. The judgement in the case does not cite any particular provision(s) of the law, which is jurisprudentially unsustainable. It remains completely silent on the issue whether conversion law would kick in even if the inter faith couples did not want to get converted and were willing to practice their religions as before the marriage. But even if one of the partners was willing to convert their religion, this does not prevent courts from granting protection to such couples in the interim.

The judgement maybe read here:

Recently, in the case of Devu G Nair vs State of Kerala the Supreme Court issued guidelines in which it asked courts to stay away from moralising the issue of inter-faith, inter-caste, and LGBTQ+ couples and emphasised on providing immediate interim protection to such couples. The relevant portion of the guidelines mentioned that, “The court must acknowledge that some intimate partners may face social stigma and a neutral stand of the law would be detrimental to the fundamental freedoms of the appellant. Therefore, a court while dealing with a petition for police protection by intimate partners on the grounds that they are a same sex, transgender, inter-faith or inter-caste couple must grant an ad-interim measure, such as immediately granting police protection to the petitioners, before establishing the threshold requirement of being at grave risk of violence and abuse…”.

The Supreme Court judgement may be read here:

The recent Allahabad HC rulings denying such protection to the interfaith couples fly in the face of the recent SC guidelines, but even before these guidelines were issued, the law had already established that privacy and safety of couples is of paramount importance and social mores should not come in the way of the fundamental rights of citizens. Through the judicial precedents set in Shakti Vahini vs Union of India and Shafin Jahan v Ashokan K.M the Supreme Court has made it clear that the right to marry a person of one’s choice is integral to Article 21, within the exclusive domain of an individual, and is a part of the core zone of privacy and individual liberty, which is inviolable. Given such precent, UP’s law on conversion itself remains precarious and the petitions challenging the validity of various conversion laws across several states have been pending in the SC.

On January 11, 2024, the bench of Justice Saral Srivastava again rejected the protection plea of the interfaith couple filed by one Farha on exactly the same ground as it mentioned in its January 10 judgement. The judgements look identical except for the fact that the petitioners have changed. In both these judgments, it put a caveat, stating that “it is open to the petitioners to prefer fresh writ petition in case they solemnise marriage after following the due procedure of law.”

The judgement maybe read here:

But it is precisely the compliance with the provisions of the UP’s Draconian conversion law that is putting interfaith couples on the edge. The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act, 2021 requires the person who before or after the marriage intends to convert or converts his/her religion, to send a prior notice informing about her decision to convert to District Magistrate (DM) or Additional District Magistrate 60 days in advance, stating that the conversion is not forced, and is completely out of freewill. This is followed by an inquiry ordered by the DM and the publication of the particular details of the person who intends to convert on the notice board of the DM, and then if any objections are raised to the conversion it will have to be noted by the DM. This very process scares away the partners who intend to convert, as all the particular details including permanent address and present place of the stay will be publicly displayed on the DM’s wall, for anybody to harass the couples, further endangering their safety and security. Pertinently, the burden of proof is reversed and if any accusation of unfair conversion is alleged, the accused has to defend herself that the conversion was not unfair or influenced by extraneous factors.

The UP’s (anti)conversion law may be read here:

Even in other cases, where we are not sure about the religion of the couples, the court is dismissing the petitions for the security of couples merely on the ground that there is no valid proof of marriage available. In one such case, the same bench declined the request of Kajal Rani for the police protection on January 16, 2024, stating that “there is no proof of marriage of petitioners on record, therefore, the relief prayed for by the petitioners cannot be granted”. It has been observed that the bench is consistently asking such petitioners to file fresh petitions with a valid proof of marriage.

The judgement maybe read here:

There are also other grounds on the basis of which the HC is declining the petitions, including on the ground that the HC has no jurisdiction to provide such protection, but that does not seem to be a valid argument. On January 10, 2024, the bench declined to grant any security to the petitioner Khushboo Pandey, arguing that is it the father of the petitioner who is interfering with the married life of petitioners, and since he is staying in Satna, Madhya Pradesh, it is beyond the jurisdiction of the HC to grant protection to the couples who are staying in Banda, Uttar Pradesh! The fact that both the couples are living in Banda, where the UP police can provide protection to the couple is completely out of consideration for the bench.

The judgement maybe read here:

Still another reason for the bench to refuse the protection to couples is the registration of FIR by or against the couples (the judgement does not readily help identify who has registered the FIR), which again is difficult to comprehend. While dismissing the plea for police protection in a petition filed by Smt. Sariya, the court recorded in its reason that “F.I.R. has been lodged in the present case. The instructions containing the details of F.I.R. is taken on record. In view of the above, the relief prayed for by the petitioners cannot be granted. Therefore, the writ petition is dismissed…”

The judgement maybe read here:

Selective protection by the Court

It is not the case that the bench is not granting police protection to couples in general, the same bench had been generous in granting protection to numerous couples who had either completed their marriage registration process and were awaiting marriage registration certificate or those who already possessed such certificate. The problem arises when the couples have not completed their marriage registration process or do not possess marriage registration certificate, this is most likely the interfaith couples, who due to the draconian nature of the UP’s conversion law have been facing hurdles in completing their marriage registration process. Thus, interfaith couples are most hit by the judicial neglect, which makes them doubly vulnerable, firstly at the hands of their families, and secondly at the hands of the law. Again, to reiterate the point, even if the UP’s anti-conversion law is draconian, the courts still cannot decline the protection to such couples on the ground that certificate is missing or registration process is not completed. The binding precedents and guidelines are beyond doubt in this regard.

Further analysis of Allahabad HC judgements reveals that even while granting police protection to couples, the court does not directly order the police to provide the security to the couples, rather the judgements provides that “In case any disturbance is caused in the peaceful living of the petitioners, the petitioners shall approach the concerned police authority, with a certified copy of this order, who shall provide immediate protection to the petitioners.” This is despite the fact and acknowledgement by the HC that police authorities failed to intervene when the couples had first approached them. After the judgement, the police are most likely to provide the protection to avoid contempt, but the process still puts entire burden on the inter-caste/interfaith couples to slog after the authorities.

The representative order maybe read here:

Moralising judgements and dangerous interlinkage between conversion and marriage

On January 16 this year, the bench of Justice Saral Srivastava dismissed a petition for police protection filed by Nagma Bano and also imposed cost of Rs. 10,000 on the petitioner. The petitioner in this case Nagma Bano was forcefully remarried after the dead of her first husband, and had been living with her partner since running away from her house. She argued that she never accepted the Nikahnama in which she was forcefully married, and therefore her live-in relationship with her partner should be secured from the outside interference, including from her husband Azad with to whom she was forcefully married.

The court while rejecting her petition noted that “…she has not accepted the Nikahnama, but the fact remains that the marriage was solemnized. The marriage may be illegal, but that issue may be determined by a Court of law. Merely, because petitioner no.1 denies that she had not accepted the Nikahnama does not prove the marriage to be illegal when it is not disputed that the petitioner no.1 was present and participated in the Nikahnama. She only disputes the fact that she has not accepted the Nikahnama.”

The same judgement records that “In the present case, till date the marriage of the petitioner no.1 with respondent no.10 is not declared illegal or dissolved as per law, no civilised society can accept the living of married partner with a third person, and the Court under law in such condition is not obliged to come to rescue of such person who is living in a society not as per the norms, ethics and values of the society.”

The judgement maybe read here:

Another pressuring concern that has arisen due to UP’s anti-conversion law is the vicious interlinkage drawn between conversion and marriage. As a matter of fact, conversion and marriage are two separate issues, dealing with separate spheres of life and there are specific laws for the same. But in line with the theory of Love Jihad, propagated by the Hindutva forces, they believe that interfaith marriages are essentially meant to convert peoples, more specifically, gullible Hindu girls being converted to Islam through fraudulent means. Apart from the theory being anti-women and irrational, it promotes a masculinist tendency and takes away the voice of women vis-à-vis their right to marry a person of their choice. UP’s anti-conversion law has been doing something similar.

The judgement delivered on March 5 this year by Justice Renu Agarwal of the Allahabad High takes the power of the anti-conversion law even further. While rejecting the plea of Mariya Zameel requesting the court order to stop interference in the peaceful living of the couples, the judgement recorded that the “Explanation goes to show that conversion is not only required for the purpose of marriage, but it is also required in all relationship in the nature of marriage, therefore, Conversion Act applies to relationship in the nature of marriage or live-in- relationship. Petitioners have not yet applied for conversion as per provisions of Section 8 and 9 of the Act, hence, the relationship of petitioners cannot be protected in contraventions of the provisions of law.”

In this case, the bench did not consider the marriage registration certificate issued by Arya Samaj, and the submission made by the petitioner that they have applied online for registration of their marriage before the competent authority, which is pending at their end. In a similar situation, had the couple been from same religion they would have faced no such issues, as the compliance with the conversion law will not be required.

Essentially, as per this interpretation by the Allahabad High Court, interfaith couples will not get any protection of the law unless conversion is first formalised under the UP’s (anti)conversion Act of 2021. This is despite the pendency of constitutional challenges to this law in the Supreme Court by Citizens for Justice and Peace and others.

The judgement maybe read here:

Conclusion

The dangerous implication and impact of the Allahabad High Court’s judgments coupled with the stringent provisions of the conversion law has virtually made it impossible for interfaith couples to secure any protection for their lives and liberty, severely affecting the effectiveness of Article 21 of the Indian Constitution. The fact that the high court of Allahabad is a constitutional court also means that these orders can impact other states, especially in states also ruled by the Bharatiya Janata Party (BJP) that have brought in similar laws. While the Allahabad High Court certainly needs a course correction in the face of the latest guidelines issued by the Supreme Court, this is expected to be a long drawn legal battle as we will see the constitutional validity of these conversion laws being challenged and debated in the apex court of the country. Until then, , the precarity of interfaith couples will only going to increase in the absence of any safeguards, either from society or the higher judiciary.

Representative table analysing some of the orders:

Table of other similar orders:

(The author is part of the CJP’s Legal Research Team)

Related:

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CJP’s amended petition allowed, CJP also challenges ‘love jihad’ laws of 5 more states

Here’s how CJP tracks hate crimes against those who dare to love

The post Why are Allahabad HC’s orders refusing police protection to inter-faith couples, wrong in law and principle? appeared first on SabrangIndia.

It should be noted that the Uttar Pradesh police’s Special Task Force has filed charges against nine people connected to the Popular Front of India (PFI) for allegedly committing offences such as sedition, criminal conspiracy, funding of terrorism, and other offences. Among the ones that were charge sheeted were the leader of the group’s student wing, K.A. Rauf Sherif, and Kerala journalist Siddique Kappan. Furthermore, they were also accused of engaging in money laundering activities, claiming that the motivation of those involved was to “incite communal riots and spread terror” in the wake of the Hathras gang rape case.

Indian Penal Code (IPC) sections 153 (A) (Promoting enmity between different groups on ground of religion, race, and place of birth, residence, and language), 124(A) (sedition), 295 (A) (deliberate and malicious acts, intended to outrage religious feelings…) and 120(B) (criminal conspiracy) had been used against the said nine accused. Additionally, they are accused of violating several sections of the IT Act as well as Sections 17 and 18 of the UAPA, which relate to raising funds for terror acts.

Earlier, in December 2022, the Special Judge, NIA/ATS, Additional District and Sessions had denied bail to Sherif and Tunnu. Challenging the order, they moved to the HC.

Arguments made by the appellants:

The two appellants were represented by Advocates Amarjeet Singh Rakhra and Sheeran Mohiuddin Alavi. It was argued by the counsels that the current two appellants were not listed in the original FIR, which had initially been lodged in the case against four other accused parties. Furthermore, it was asserted that there was no evidence to support any claims made that they two accused were affiliated with any terrorist groups, were looking for donations or financial support, or had any connections with the PFI or the CFI.

It was further argued that, in light of the provisions of Section 43-D (5) of the UAPA, the court handling the accused’s bail application had a responsibility to determine and satisfy itself regarding whether there were good reasons and reasonable grounds to believe that the accused is prima facie guilty of the charges against them.

Their main argument was that the Special Court wholly failed to satisfy itself as to whether Section 43-D (5) of the UAPA applied, and refused the bail requests solely because a charge sheet had been filed against him, and the co-accused’s bail request had also been denied. The bench was also informed that the High Court had earlier granted bail to co-accused Kappan and Mohammad Alam.

Arguments made by the state:

On the other hand, the counsel representing the State contended that the appellants are connected to the PFI organisation, which engages in terrorist actions in the nation and tries to sow discord there by promoting caste and religious prejudice. Furthermore, it was argued that the Special Court had good cause to deny the bail application because there is a substantial amount of evidence against the appellants.

Order of the court:

After having heard the contentions put forth by both the counsels for parties and upon perusal of the records, the bench of Justice Attau Rahman Masoodi and Justice Ajai Kumar Srivastava-I noted that initially, the FIR came to be lodged against four accused persons which did not include the names of the appellants and no incriminating article was recovered from their possession or their pointing out.

“The investigating agency has already filed a charge sheet against the appellant and the trial is yet to commence. The named co-accused, namely, Sidhique Kappan, who has been assigned the lead role, has been granted bail by the Apex Court…The other co-accused, namely, Alam @ Mohammad Alam, who was named in the F.I.R. and Atikur Rahman have been granted bail by a Division Bench of this Court,” the Court observed in its order. (Para 16)

The Court also noted that the two appellants have been languishing in jail since a significant amount of time, with Rauf having been incarcerated since February 2021 and Tunnu since November 2022.

Consequently, considering the facts and circumstances of the case, without expressing any opinion on the merits of the case, the Court opined that the court below had failed to appreciate the material available on record. With this, the Court granted the two appellants bail.

The order can be read here:

Related:

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Hathras gangrape: Only Sandeep Sisodiya convicted for culpable homicide, and not for rape

SC grants journalist Siddique Kappan bail in Hathras conspiracy case

He had no work in Hathras: Allahabad High Court denies bail to journalist Siddique Kappan

A year on, Hathras victim’s family awaits a house, pension and employment

Hathras case: CJP moves MEITY against news channel for spreading hate and misinformation

The post Hathras conspiracy case: two more accused granted bail by the Allahabad High Court appeared first on SabrangIndia.