As per a report in LiveLaw, the Division Bench comprising Justice Vijay Kumar Shukla and Justice Alok Awasthi, while disposing of a habeas corpus petition on February 23, 2026, held that her continued stay in a detention centre — as opposed to a regular jail — was justified in view of the pending trial and the “present international scenario.” However, the Court directed the State prosecution to conclude the long-pending trial within six months.

The Petition: Bail granted, yet detained

The petitioner, identified in the order as Lima @ Riya Sheikh, a Bangladeshi national, approached the High Court under Article 226 of the Constitution seeking multiple reliefs, including:

• Immediate release from what she termed “illegal and unconstitutional detention.”
• Expedited conclusion of the trial.
• Declaration that her continued detention despite bail violated Articles 14 and 21.
• Directions for coordination with the concerned Embassy and authorities for repatriation.
• Compensation and inquiry into alleged unlawful detention.

The case against her arises out of Crime No. 70 of 2020 registered in Indore. She faces charges under the Indian Penal Code — including Sections 346, 347, 323, 364-A, 506 and 34 — as well as under Sections 14(a), 14(b) and 14(c) of the Foreigners Act and provisions of the Passports Act, 1967. The allegations include kidnapping for ransom, wrongful confinement, assault, criminal intimidation, and illegal stay in India with forged or invalid travel documents.

Crucially, she had already been granted bail in the criminal case. Yet, she continued to remain confined in a detention centre established within the District Jail premises in Indore.

State’s Stand: Detention under foreigners’ law

The State, represented by the Additional Advocate General, argued that although bail had been granted, the petitioner could not be released into the general public domain because she is a foreign national whose trial remains pending.

The State relied on provisions of the Foreigners Act, 1946 and the Foreigners Order, 1948. It submitted that the competent authority — the District Magistrate, Indore — had passed an order permitting her temporary stay in the detention centre until the conclusion of the trial. A letter from the Assistant Police Commissioner, Heera Nagar Zone, Indore, was also produced before the Court.

The Court’s Reasoning: Presence required, safety considered

The Bench refused to grant relief directing her release. It observed:

“It is not in dispute that the trial is still pending and the presence of the petitioner may be required at any time during the trial and considering the present international scenario, it is for her safety to keep her in detention centre.” (Para 4)

The Court emphasised that she was in a detention centre and not in jail, implicitly drawing a distinction between penal incarceration and administrative detention under foreigner-regulation laws.

At the same time, the Bench acknowledged that the trial has remained pending for over six years. Taking note of the delay, the Court directed the State counsel to ensure that the prosecution expedites the trial within six months from receipt of the certified copy of the order, including by producing witnesses without further delay.

“However, so far for relief No.7(b) is concerned, considering the fact that the trial is pending for more than six years, we observe that the counsel for the State will direct the prosecution agency to expedite the trial within a period of six months from the date of receipt of certified copy of the order by producing the witnesses etc. However, if there is no progress in the trial within the aforesaid period, then liberty is granted to the petitioner to file a fresh petition in this regard for expediting the trial.” (Para 4)

If no substantial progress occurs within this period, liberty has been granted to the petitioner to approach the Court again.

A six-year trial and constitutional questions

The order brings into focus a recurring constitutional tension: whether a person — particularly a foreign national — can remain in custody through executive detention mechanisms despite being granted bail by a competent court.

The petitioner had argued that prolonged detention after bail amounts to arbitrariness and violates Articles 14 and 21 of the Constitution. While the Court did not expressly engage in an extended constitutional analysis, it effectively upheld the legality of detention under the Foreigners Act framework, prioritising trial presence and “safety” considerations linked to the international context.

The phrase “present international scenario,” though not elaborated upon in the order, appears to have played a persuasive role in the Court’s assessment of risk and prudence.

The final direction

Disposing of the habeas corpus petition, the High Court:

• Refused immediate release from the detention centre.
• Directed the prosecution to conclude the trial within six months.
• Granted liberty to the petitioner to re-approach the Court if the trial does not progress.
• Ordered that a copy of the decision be placed before the concerned trial court.

The matter thus stands at a constitutional crossroads: a foreign national on bail, confined not as a convict but under administrative authority, awaiting a trial that has already spanned six years — with judicial patience now formally limited to six more months.

The complete order may be read here.

Related:

Policing Identity: Maharashtra’s birth certificate crackdown and the politics of belonging

From Permanent Refuge to Perpetual Limbo: Why Sri Lankan Tamil refugees remain without citizenship even as electoral assurances reshape belonging in Bengal

From D-Voter Tagging to Citizenship Declaration: Anowara Khatun’s case before the foreigners’ tribunal

12 Bengali migrant workers murdered in 6 states, Maharashtra tops the crime list

The post Bail Granted, Freedom Denied: Madhya Pradesh High Court upholds detention of Bangladeshi woman citing “international scenario” 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.

The Madhya Pradesh High Court has barred the state government from using coercion against anyone who disobeys section 10 of the MP Freedom of Religion Act, which requires anyone who wishes to convert to another religion to notify the district administration in advance. The petitioners had asked the court to invalidate the MP Freedom of Religion Act 2021 as being unconstitutional.

The Madhya Pradesh High Court then issued this significant ruling, prohibiting the State Government from using coercion against anyone who violates Section 10 of the Madhya Pradesh Freedom of Religion Act, 2021, which calls for anyone wishing to change their religion to make a declaration to the District Magistrate.

A bench of Justice Sujoy Paul and Justice Prakash Chandra Gupta further ordered the state not to prosecute the adult citizens if they solemnize the marriage of their own free will after finding section 10 to be prima facie unconstitutional.

Section of the MP Freedom of Religion Act, 2021 reads as follows:

On Tuesday, the division bench had reserved decision on a number of petitions seeking to keep interfaith weddings beyond of the Act’s reach and challenging the constitutionality of the 2021 Act.

In one of the pleas, a specific prayer was made to strike down Sections 2(a), 2(b), 2(c), 2(d), 2(e), 2(i), 3 (Prohibition of conversion from one religion to another), 4 (Complaint against the conversion of religion), 5 (Punishment for contravention of Section 3), 6 (any marriage performed in contravention of Section 3 shall be deemed null and void.), 10 (Declaration before conversion of religion) and 12 (Burden of Proof) of the Act.

Contentions of the Petitioner:

The 2021 Act, according to the petitioners, is unconstitutional and breaches the fundamental rights guaranteed by Articles 14, 19, and 25 of the constitution. An adult has the right to marry whoever they choose, as contended by the petitioners. However, if a marriage is performed under duress or covertly, the Act stipulates that the offender could face 3 to 10 years in prison.

The petitioners’ main argument was that the 2021 act is blatantly illegal and that, as a result, the respondent/State should be prohibited from prosecuting anyone in accordance with the contested M.P. Freedom of Religion Act, 2021, while these proceedings are ongoing. It was further contended that the legislation grants the government unrestricted and arbitrary powers to prosecute persons and that it also aims to interfere with citizens’ fundamental rights to practice their faith and marry a partner of their choice, regardless of caste or religion.

Additionally, it was argued that if the contested statute is allowed to stand, it will not only violate crucial fundamental rights but also disrupt social cohesion, highlighting the importance of every citizen’s freedom to remain silent. The petitioners argued before the court with vigor that a citizen is not required to reveal either his current faith or his plans to convert to a new one.

The final argument stated was that Section 10 of the Act’s requirement that people disclose their faith or their desire to change it may actually cause conflict in the community and jeopardize the convert’s life or limb. As a result, it was made clear that the Act of 2021’s necessity for prior information before conversion is a violation of a citizen’s fundamental rights.

Contentions of the state:

The State contended that if interim relief is given, it will essentially amount to providing the petitioners with ultimate remedy because they are requesting a broad interim relief that cannot be granted. There was also a claim that the Court should uphold the constitutionality of the enactment.

Order and Rationale of the Court:

In order to emphasize that marriage, sexual orientation, and choice in connection to these characteristics fall under the purview of the right to privacy and have a direct bearing on the dignity of the individual, the Court first considered the rulings of the Apex Court, namely Lata Singh Vs. State of Uttar Pradesh and Ors. [(2006) 5 SCC 475] and LaxmibaiChandaragi B &Anr. v. State of Karnataka &Ors [LL 2021 SC 79].

The Himachal Pradesh High Court’s judgment in Evangelical Fellowship of India and Anr. Vs. State of H.P. [(2012) SCC Online HP 5554], which ruled that a provision of the 2006 H.P. Freedom of Religion Act requiring citizens to inform the government of their desire to change their religion was unconstitutional, was also taken into consideration by the court.

In light of the aforementioned rulings, it’s significant to note that the MP High Court also acknowledged that the freedom to choose a religion and the freedom to publicly express or refrain from publicly expressing those choices are both implicit in the Constitutional right to freedom of religion under Article 25. In regards to this, the Court determined that the petitioners had established a strong prima facie case for the granting of temporary protection in relation to the marriage of two adult citizens who are doing so of their own free will and against any coercive action for violating Section 10 of the Act.

Therefore, the Court ordered the State government to file its para-wise response within three weeks and directed the state to not punish the adult citizens if they solemnize the marriage of their own free will and not take coercive action for breach of Section 10.

The court directed to parties to finish filing their pleadings as soon as possible. After the pleading process is complete, the parties are free to submit the proper application in order to request an out-of-turn final hearing in this matter.

Gujarat High Court’s stay on the Gujarat Freedom of Religion (Amendment) Act, 2021

In August 2021, the Gujarat High Court Bench of Chief Justice VikramNath and Justice BirenVaishnavpassed an interim order rulingagainst the provisions of the Gujarat Freedom of Religion (Amendment) Act, 2021. It ordered that they said provisions will not apply to inter-faith marriages that take place without force, allurement or fraudulent means. The court had declared that the rigours of Section 3, 4, 4A to 4C, 5, 6, and 6A of the Gujarat Freedom of Religion (Amendment) Act shall not operate merely because the marriage is solemnised by a person of one religion with another, without force or by allurement or by fraudulent means and such marriages cannot be termed as marriages for the purposes of unlawful conversion.

Later in the same month, the Gujarat High Court refused to allow the state government’s plea seeking removal of stay on operation of section 5 of the Gujarat Freedom Of Religion (Amendment) Act, 2021. According to Section 5 of the law, it was mandated that religious priests must take prior permission from the district magistrate for converting any person from one religion to another.

The order can be read here.

Background: Anti-conversion laws in India

The Constitution guarantees the freedom to profess, propagate, and practise religion, and allows all religious sections to manage their own affairs in matters of religion; subject to public order, morality, and health. To date, there have been no central legislations restricting or regulating religious conversions. In 2015, the Union Law Ministry stated that Parliament does not have the legislative competence to pass an anti-conversion legislation. However, it is to be noted that, since 1954, on multiple occasions, Private Member Bills have been introduced in (but never approved by) the Parliament, to regulate religious conversions.

Over the years, several states have enacted ‘Freedom of Religion’ legislation to restrict religious conversions carried out by force, fraud, or inducements.  These are: (i) Odisha (1967), (ii) Madhya Pradesh (1968), (iii) Arunachal Pradesh (1978), (iv) Chhattisgarh (2000 and 2006), (v) Gujarat (2003), (vi) Himachal Pradesh (2006 and 2019), (vii) Jharkhand (2017), and (viii) Uttarakhand (2018).

Additionally, the Himachal Pradesh (2019) and Uttarakhand legislations also declare a marriage to be void if it was done for the sole purpose of unlawful conversion, or vice-versa. Further, the states of Tamil Nadu (2002) and Rajasthan (2006 and 2008) had also passed similar legislation.  However, the Tamil Nadu legislation was repealed in 2006 (after protests by Christian minorities), while in case of Rajasthan, the bills did not receive the Governor’s and President’s assent respectively.

About the Madhya Pradesh Freedom of Religion Act, 2021

The Madhya Pradesh (MP) Govt promulgated the MP Freedom of Religion Ordinance that was passed through a Special Session of the State Assembly on December 27, 2020 and officially notified in the State Gazette on January 9, 2021. While the state has provided the objective behind bringing this act to restrain any kind of forceful and illegal religious conversions done by religious organizations or extremist groups, in reality, this Act is just a tool for the harassment of young vulnerable couples who are deprived of their right to marry any individual on their free will.

The MP Act has a unique definition of “conversion” which states that “Conversion” means renouncing one religion and adopting another; but the return of any person already converted to the fold of his parental religion shall not be deemed conversion. The MP Act has an additional sub-section that such conversions, carried out in contravention of this provision “will be deemed null and void”.

The MP Act also states that that any marriage performed in contravention of section 3, which prohibits unlawful conversion from one religion to another, will be deemed to be null and void.

Section 10 of the Act requires an individual to give a declaration 60 days in advance to the DM that conversion is being done without any force, coercion, undue influence or allurement. The religious priest/convertor is required to give a similar notice 60 days in advance.

The MP Act has modelled on the UP Act, Uttarakhand Act and the Himachal Pradesh Act that penalises conversion from one religion to another for marriage. The MP Act is seriously problematic per se, as it is more stringent than its precursor from another state. For instance, the HP and Uttarakhand laws do not specify the fine to be imposed in case of contravention but the subsequent UP and MP ordinances specify the minimum amount of fine to be collected. Even in that the MP ordinance imposes higher amount of fine for the same offence, compared to the UP ordinance. Even the period of imprisonment is longer for similar offence in the MP ordinance, which is the latest law to be passed in this bandwagon of anti-conversion laws.

CJP’s plea in Supreme Court against the Anti-Conversion Laws

In December 2020, a PIL was been filed by Citizens for Justice and Peace against the then Uttar Pradesh Prohibition of Unwlaful Conversion of Religion Law 2020 and the Uttarakhand Freedom of Religion Act, 2018, ostensibly prohibiting forceful prohibition of conversion for the purposes of marriage.

The Petitioner-organization had contended in its petition that the provisions of the impugned Acts violate Article 21 of the Constitution as it empowers the State to suppress an individual’s personal liberty and impinge upon an individual’s right to freedom of choice and right to freedom of religion.

It further submitted that the “right to convert” oneself to another religion is manifested in Article 25 of the Constitution. However, the said Acts impinge upon this right by imposing unreasonable and discriminatory restrictions on it by mandating that the administration be informed of such intention and a probe be launched in such a personal and intimate exercise of one’s right.

Later, in February 2021, CJP then approached the Supreme Court seeking permission to challenge Love-jihad laws passed by Himachal Pradesh and Madhya Pradesh in its same plea which seeks to challenge the laws made by Uttar Pradesh and Uttarakhand against religious conversions for the sake of marriages. The Supreme Court had then allowed CJP to make Madhya Pradesh and Himachal Pradesh as respondent parties to the petition.

Related:

Guj gov’t seeks removal of stay on operation of sec 5 of anti-conversion law
Anti-conversion law will not apply to inter-faith marriages unless there is force, fraud, allurement: Gujarat HC
CJP moves SC against “Love Jihad” laws
CJP’s Love Jihad Petition: SC issues notice to UP and Uttarakhand
“Love Jihad” laws curb individual and collective freedoms

The post No coercive action against voluntary religious conversion: MP High Court appeared first on SabrangIndia.

The Madhya Pradesh High Court warned the police and the State against “moral policing” in a case of an interfaith couple where the wife had willingly converted to Islam and was detained illegally by her parents. The single bench of Justice Nandita Dubey cited the Constitution to hold that it “gives a right to every major citizen of this country to live her or his life as per her or his own wishes.”

The petitioner, Gulzar Khan filed the habeas corpus petition for his wife who he married legally and who willingly converted to Islam. Khan stated that his wife’s parents took her forcibly to Banaras and detained her there illegally.

The corpus or the petitioner’s 19-year-old wife told the court that she had willingly married the present petitioner and converted to Islam. She also made a categorical statement that she was never forced into conversion and whatever she has done was as per her own wishes. She further told the court that she was forcibly taken away by her parents and grandparents where she was beaten up and threatened constantly to give a statement against the petitioner. She expressed her wish to stay with the petitioner since she had willingly married him.

The State, one of the respondents in the case, raised an objection in view of section 3 of the Madhya Pradesh Freedom of Religion Act, 2021 whereby any marriage performed in contravention of the same is deemed null and void.

Section 3 of the Act states as follows:

(1)    No person shall-

(a)    convert or attempt to convert either directly or otherwise any other person by use of misrepresentation, allurement, use of threat or force, undue influence, coercion or marriage or by any other fraudulent means;

(b)   abet or conspire such conversion

(2)    Any conversion in contravention of provision of this section shall be deemed null and void.

The court however observed that the petitioner and his wife (corpus) are both major and that “no moral policing can be allowed in such matters where the two major persons are willing to stay together whether by way of marriage or in a live-in relationship, when the party to that arrangement is doing it willingly and not forced into it.”

The court further noted that the “Constitution gives a right to every major citizen of this country to live her or his life as per her or his own wishes.” The court rejected the state’s submission that the corpus should be sent to Nari Niketan. The court, thus, directed that the corpus be handed over to the petitioner, the husband, and directed the state and the police to ensure that both reach their home safely.

The court disposed of the petition and ordered thus,

“Under the circumstances, counsel for the State and the police authorities, who have produced the corpus are directed to handover the corpus to the petitioner and to see that the petitioner and the corpus reached their house safely. The police authorities are also directed to see that in future also the corpus and the petitioner are not threatened by the parents of the corpus.”

The High Court’s judgement may be read here:

Madras HC on individual’s right to convert

The Madras High Court recently upheld an individual’s right to change religion as per volition. The court held that the Constitution grants an individual the fundamental right to freedom of conscience if they want to change their religion by their own choice. And giving examples such as A.R. Rahman (born as Dileep Kumar), Yuvan Shankar Raja, a son of T. Rajendar having converted to Islam, the Court emphasised that this choice of change of religion cannot be objected to. However, the Court mentioned caution as it said that the same cannot be a group agenda, saying:

“But religious conversions cannot be a group agenda. Our Constitution speaks of composite culture. This character has to be maintained. The clock of history can never be put back. But the status quo that obtains in the year 2022 as regards religious demographic profile may have to be maintained.”

CJP challenged MP Freedom of Religion Act

On February 17, 2021, a Supreme Court bench headed by then CJI SA Bobde admitted CJP’s amendment to its original petition to include the Madhya Pradesh Freedom of Religion Ordinance, 2020 and Himachal Pradesh Freedom of Religion Act, 2019. CJP’s original petition had challenged the anti-conversion laws of Uttar Pradesh and Uttarakhand to be ultra vires of the Constitution on which the top court had issued a notice to the respective States on January 6, 2021.

All four laws have been challenged on grounds that it is discriminatory, anti-women, and contravenes the right to privacy and personal liberty of citizens by criminalising interfaith unions. Thus, CJP has prayed for the Uttarakhand Freedom of Religion Act (2018), Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020, Madhya Pradesh to Freedom of Religion Ordinance, 2020 and Himachal Pradesh Freedom of Religion Act, 2019 to be declared anti-Constitutional and struck down.

The plea has raised issues of privacy, extra-Constitutional powers to police and non-state actors, violation of the non-negotiable tenets of secularism, equality and non-discrimination. All four laws are inherently anti-women, discriminate against women, leaving them with no agency over their decisions and life and therefore bad in law and substance. CJP has also argued that such laws are premised on “conspiracy theories” and assume that all conversions are being illegally forced upon individuals who may have attained the age of majority, throttling their personal liberty guaranteed under Article 21 of the Constitution.

Related:

Constitution grants individual right to change religion as per volition: Madras HC
K J George pinpoints major flaws in anti-conversion Bill
Karnataka becomes fifth BJP-ruled state to introduce Anti-Conversion Bill

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The Madhya Pradesh High Court seeks to know whether prisons in the state are well equipped in terms of infrastructure and facilities including healthcare and food for its inmates. The bench of Chief Justice Mohammad Rafiq and Justice Vijay Kumar Shukla has directed a member of each of the District Legal Services Authority (DLSA) and the Chief Judicial Magistrate (CJM) of the concerned district to make surprise visits to the prisons within next 6 weeks and gather this information. They are to also interview prisoners in order to gauge the on-ground situation in prisons.

While the court was given plenty of suggestions by the amicus curiae in this matter, based on data collected by National Crime Records Bureau (NCRB), the court deemed it necessary that before it passes specific directions in this regard, the real situation in prisons is brought to light. This focus on prison conditions and the facilities available to inmates came to the forefront due to the second wave of Covid-19 which stood to affect the overcrowded prisons in the state. Senior counsel CU Singh informed the court that as on March 31, 2021 as against the total capacity of 28,675 prisoners, there were 32,263 under-trial prisoners and 17,311 convicts, totaling to 49,763 prisoners, lodged in the different jails of the state; which meant that the prisons were overcrowded by 174%.

Amicus curiae suggestions

During the hearings, amicus curiae Sankalp Kochar brought to the court’s attention the deplorable condition of prisons and suggested reforms. More such suggestions came from senior advocate CU Singh appearing for a petitioner as well as from advocate Ajay Gupta appearing for an intervenor.

Kochar pointed out that there are no jails for women in the state, there are also no borstal schools for rehabilitation of young offenders between the ages of 18-21, there are no psychologists in the prisons for the mental health of prisoners, there is no mental health review board as mandated by Mental Healthcare Act, 2017 to receive quarterly reports from medical officers in prisons. He also pointed out that Madhya Pradesh has not provided financial assistance to prisoners on release and not even a single convict has been rehabilitated. He also stated that the state had the 2nd highest number of natural deaths of prisoners which meant there was a need for improving living conditions in the prisons by focusing on prevention of disease.

The suggestions include:

• Mental Health Review Boards should be set up in the state,
• Green Jail model of Narsinghpur should be emulated everywhere in the state,
• All eleven Central Jails of the State should endeavour to get ISO 9001:2015 certification,
• Special provisions/facilities should be made for disabled inmates and jail staff should be sensitised about their rights,
• Separate protocol, treatment and accommodation should be provided for mentally disabled inmates as there are 752 mentally ill inmates across all prisons in the state,
• United Nation Standard Minimum Rules for Treatment of Prisoners (The Nelson Mandela Rules) should be strictly implemented,
• The Telangana model of training inmates in vocational trades should be followed since despite having 2nd highest number of inmates the gross value of sales proceeds from jail products is quite low at Rs. 2.77 crores.
• The Welfare Board for Prisons, which is dysfunctional in the State, should be re-activated to provide financial assistance to released convicts,
• A mechanism should be introduced for speedy resolution of pending complaints of the prisoners before the National Human Rights Commission and the State Human Rights Commission
• All the unfilled vacancies of different levels/categories in the jails should be filled so as to optimize the efficiency of jail staff especially posts of Residential Medical Officers, Welfare Officers and Para Medical Staff
• Amendment of parole rules to get rid of loopholes
• Adequate number of toilets and bathrooms should be constructed in the prisons keeping in view the Rule 17 of the Standard Minimum Rules. One unit of the toilet fitted with flush typed latrine and cubical for bathing should be provided for every batch of 10 prisoners, with adequate water and proper arrangement to secure privacy of both by affixation of gates
• Practice of preparing food for 1,000-2,000 inmates at one go should be discontinued and as recommended in Mulla Committee Report each kitchen should cater to maximum 200 prisoners. Automated roti makers should be procured to ensure supply of healthy and properly cooked rotis to the prisoners. One sweet item should be provided to the prisoners once in a week, preferably on every Sunday during lunch hours
• In order to avoid spread of water-borne diseases, water filtering plants should be setup
• Separate dental care unit, basic diagnostic facilities, functional ambulance should be provided
• Newspapers, magazines, novels should be procured, movies should be shown once in a fortnight
• Regular sports and gaming activities should be promoted in jails
• Training in vocational trades should be provided
• Use of video conferencing facility should be made effectively functional in all Central Jails
• The Collectors of each district should be directed to constitute a Board of Visitors, who should periodically visit the jails. District Collectors/Additional District Collectors and Sessions Judges/Chief Judicial Magistrates of each district should periodically visit the jails and submit their report/notes
• Open jails should be set up

The court’s directions

The court refused to pass any specific directions with regards to the suggestions but at the same time found the state’s response to these suggestions to be inadequate and unsatisfactory. The court thus sought a specific-considered and detailed response to each of the suggestions from the state. Also, before issuing specific directions, the court has deemed it appropriate to comprehend the magnitude of the problem on the basis of actual position obtained in different prisons by having them physically inspected.

The court thus directed the Member Secretary, District Legal Services Authority accompanied by Chief Judicial Magistrate of each district to make surprise inspection of all the Central Jails and District Jails falling in their jurisdiction, on any day within next six weeks, and privately interview as many prisoners as they may consider necessary and submit their report to the court. The court has sought to know through these reports in detail about sanitation, food, health care, recreational activities, educational activities, vocational activities, infrastructure and welfare. The court has given questions in detail for each of these topics to be covered during this visit.

The court has directed that the copy of the order be forwarded to Member Secretary, MP State Legal Services Authority and Director General of Prisons for compliance.

The case will next be heard on December 7.

On September 3, bench of Justices Sheel Nagu and Rajeev Kumar Shrivastava while dealing with the request of a convict to extend his suspension of sentence so that he can get good medical care for his ailments, directed the state government to establish Primary Health Centres (PHC) in prison premises to maintain the health of prisoners. The court had observed that primary healthcare facilities are not available in jail dispensaries and also secured transportation to hospitals outside jail premises is not available.

The complete order may be read here:

Related:

MP High Court bats for prisoners’ right to health, calls for setting up PHCs in prisons
76 deaths in police custody, 20 human rights violation cases registered against Police: NCRB report
Bhima Koregaon: Prisoners accuse ex-jail superintendent of ‘political censorship’

The post Visit prisons, interview inmates, gauge prison conditions: MP High Court to CJMs, DLSA appeared first on SabrangIndia.

A Division bench of Madhya Pradesh High Court (Gwalior bench) has set aside an order by a single-judge bench denying permission for aborting a fetus after the woman alleged rape.

An intra court appeal was filed against the August 10 order passed by a single-judge bench refusing permission to abort a fetus more than 12 weeks old, but less than 20 weeks old. The division bench of Justices Sheel Nagu and Deepak Kumar Agarwal allowed the termination of the pregnancy and clarified that allegation of rape is sufficient to invoke section 3 of the Medical Termination of Pregnancy (MTP) Act.

Background

In an order passed on August 10, bench of Justice GS Ahluwalia refused to grant permission for abortion of a fetus more than 12 weeks old, observing that the prosecutrix who alleged rape based on a false promise of marriage, knew fully well the pros and cons of her consensual sex with the accused.

The case was that the prosecutrix was in a relationship with the accused for 4-5 years, and he had promised to marry her on the pretext of which they had physical relationship as well. As the prosecutrix was in love with the accused she relied on his promise and they were having consensual sex. When she got pregnant, and the accused was asked to marry her, he refused. The prosecutrix thus came before the court that on the pretext of marriage the accused was having sex with her, and she should be permitted to terminate her pregnancy.

As per section 3 of the Medical Termination of Pregnancy Act, permission for termination of pregnancy  can be given where the pregnancy does not exceed 12 weeks, or does not exceed 20 weeks, and two registered Medical Practitioners are of the opinion that the continuance of the pregnancy would involve a risk to life of a pregnant woman or a grave injury to her physical or mental health or there is a substantial risk that if the child was born, it would suffer from such physical or mental abnormalities as to be seriously handicapped. The explanation 1 to this provision states that – Where any, pregnancy is alleged by the pregnant woman to have been caused by rape, the anguish caused by such pregnancy shall be presumed to constitute a grave injury to the mental health of the pregnant woman.

The prosecutrix was carrying a fetus of more than 12 weeks and was to be governed by the above-mentioned provision and adjoining explanation. The question the was considered by the court was that whether the sex was consensual or was the consent obtained by misrepresentation of facts.

“The petitioner is a major girl knowing fully well the pros and cons of consensual sex without any precaution. Even the FIR was lodged after it was detected that the petitioner is pregnant… This Court is of the considered opinion that since the petitioner involved herself in a consensual sex knowing fully well about the consequences of such act, and the allegations made in FIR, do not prima facie make out a case of consent obtained by misrepresentation of fact, therefore, under these circumstances, medical termination of pregnancy cannot be permitted,” the court said.

The August 10 order may be read here:

In appeal

The court, in appeal, observed that the prosecutrix was subjected to illicit sexual intercourse by the accused on the false pretext of marriage which will adversely affect the social and mental status of an unmarried girl like the appellant/prosecutrix and her family cannot survive/sustain with dignity in the society peacefully.

The court perused the order passed by the single-judge bench and observed that the court prima facie deemed that the sex was consensual however it failed to consider that whether the promise of marriage was falser from beginning, or was it a case of breach of promise is a fact to be established at trial and the single-judge “ought not to have presumed presence of element of consent as a dissuading factor”.

The court compared the factual matrix of the case to the explanation 1 under section 3 of MTP Act and observed that it is amply clear that the prosecutrix has alleged that she was subjected to rape and the pregnancy arises from the said incident of rape. The explanation clearly states that when a pregnancy is alleged to have been caused by rape, the anguish is presumed to constitute “grave injury to mental health of the woman” which is a valid ground for terminating a pregnancy of less than 20 weeks.

The court added, “Since the period of pregnancy is below 20 weeks and she admittedly is subjected to grave injury to her physical and mental health due to said rape, this Court cannot stand in the way of the prosecutrix in getting her pregnancy aborted/ terminated.”

The court also clarified that under section 3 of MTP Act, if rape is alleged, it is not necessary for the allegation to be proved, which means that the factum of the allegation is sufficient to invoke provisions of section 3 and to allow termination of such pregnancy.

The court thus allowed termination of pregnancy if consent is expressly given and her physical condition is conducive for the same.

The August 28 order may be read here:

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The post Allegation of rape need not be proved to allow abortion of fetus under MTP Act: MP High Court appeared first on SabrangIndia.

The Madhya Pradesh high Court, while dealing with a petition seeking action against two cops who mercilessly beat up a rickshaw driver for not wearing a mask properly, directed the police to not use force against people not abiding lockdown rules. The bench of Chief Justice Mohammad Rafiq and Justice Atul Sreedharan did not go into the merits of the petition as the matter had already been dealt with recently and appropriate directions were issued and chose to reiterate the same directions.

The petition was filed by one Osheen Sharma and others seeking direction to register FIR against two constables of Pardeshipura police station, Indore alleging that they misused their powers and subjected innocent rickshaw-pullers to merciless beating. The petitioners also prayed that a direction be issued to constitute an independent Committee or Grievance Cell, who may examine the complaints against excess misconduct of such Policemen.

On April 8, it was reported that the two constables were placed under suspension after their video beating an auto rickshaw driver became viral on social media. The policemen beat him up, allegedly, for not wearing his mask properly. The rickshaw driver explained that since his father was ailing and was hospitalized and he was going to visit him, which did not convince the policemen and asked him to come to the police station with them. When he refused, he was forcibly dragged while the driver’s son pleaded with them not to beat his father. Reportedly, he was brutally beaten up and kicked.

It was also highlighted that another such incident took place in Piplanarayanwar village in Chhindwara district wherein a policeman was thrashing a person with a stick whereas another policeman was watching. Further, one lawyer and two journalists were also beaten up by the police in isolated incidents.

The Deputy Advocate General, Swapnil Ganguly informed the court that in its order dated May 17, this court has issued necessary order to the police directing that no citizen flouting norms, should be subjected to corporal punishment or beating and that they should instead counsel people. Further, chargesheet has been filed against the two policemen, Mahesh Prajapati and Gopal Jatt.

The court directed the Superintendent of Police, Indore to take appropriate action against the erring police officials and to take the disciplinary proceedings to their logical conclusion. The court disposed off the petition and reiterated the directions made in its May 17 order that no citizen who is found not wearing mask or not following social distancing norms or not following lockdown conditions, should be subjected to corporal punishment or beating. The policemen should rather counsel people by sensitizing them about the need of following Covid protocols such as wearing masks, following norms of social distancing or abiding lockdown/Corona curfew restrictions.

On May 27, Patna High Court noted purported illegality and brutality exhibited by the police in enforcing the lockdown and directed authorities to keep a check on the same.

The order may be read here:

Related:

Keep check on police brutality in lockdown: Patna HC
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Release persons not arrested as per Arnesh Kumar guidelines: MP High Court

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The Amicus Curiae Naman Nagrath (Senior Counsel) has moved the Madhya Pradesh High Court seeking strict compliance of its order dated April 19 and also additional directions necessary to monitor the Covid-19 situation in the state, reported LiveLaw.

The High Court had taken suo motu cognisance of the letter forwarded by the Supreme Court whereby Senior Advocate Ashwani Kumar had highlighted a tragic incident where an elderly patient was chained to a hospital bed in Bhopal allegedly on his failure to make payment of fees for his treatment.

The court had recorded the issues in the state including several deaths due to oxygen shortage, shortage of medicines, under reporting of cases and deaths, alleged corruption charges where some private hospitals were giving beds to only those who were willing to pay a higher amount, etc, according to a SabrangIndia report.

The court had directed the government to fix the rates for being charged by the private hospitals and labs for treatment/tests, to ensure strict compliance of all such directions including about the treatment of poor patients under Ayushman Bharat Yojana reserving 20% beds for Ayushman Bharat Yojana beneficiaries and increase the empanelment of more private hospitals under the said scheme.  It had also told the government that since it depends on supply of Liquid Oxygen from other States, it should initiate the process of setting up Liquid Oxygen Plants and make sure there is enough supply of drugs.

This matter was fixed for hearing on May 10 but Senior Counsel Naman has stated in his application that the developments in the intervening period are “so serious” that he had to move the court with his Intervention Application, as per LiveLaw.

He has submitted that even though the figures of availability of oxygen as provided by the State may seem to be sufficient “the actual availability and the ground reality shows a completely different picture.” According to LiveLaw, the application reads, “The acute shortage of oxygen is attributable to total inaction and indifference of the State, which has failed to perceive this aspect of any importance and necessity. It is saddening that the entire period of several months after slowing down of the first wave have been lost and no efforts even worth mentioning have been taken by the State in this regard.”

He has further told the High Court that it is the State’s “apathy and indifference” for being unable to utilise even the grant made available to it by the Centre for setting up 8 oxygen plants. The application therefore, seeks direction to the State Government to set up a Liquid Oxygen manufacturing plant “at war footing without any further delay”.

He has also submitted that patients in the State are being made to shuffle from one hospital to the other in search of beds and drugs. Emphasising on the rural population, his application also states that it has become absolutely necessary that the government gives immediate attention to this issue so that the rural population does not suffer adverse consequences which may be worse than those being witnessed by the urban population of the State.

According to LiveLaw, his application reads, “State seems to have been totally oblivious and has been caught unaware and unprepared of the impending second wave which is devastating. The state has simply failed to live up to the proverb, dig the well before you are thirsty and lose valuable days and weeks in the months of February and March 2021, as a result, it is even less prepared than the first spell of Covid-19 last year.”

Naman Nagrath’s plea finally prays for the court to list the matter in short intervals owing to the exceptional circumstances and issue directions to the government to submit a preparedness and forward planning report in respect of a possible third wave of Covid-19, which mat hit the country and also the Madhya Pradesh in the coming months as indicated by research studies.

Related:

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The post Acute shortage of oxygen attributable to State inaction, Amicus Curiae moves Madhya Pradesh HC appeared first on SabrangIndia.

The Madhya Pradesh High Court has granted pre-arrest bail to the Principal of a Convent School after it was alleged by a terminated employee that she tried to convert her and her family, by allurement.

The applicant, Sister Bhagya, Principal of the Sacred Heart Convent High School, filed for anticipatory bail for a case registered against her at Police Station Khajuraho, Chhatarpur, under sections 3 and 5 of the Madhya Pradesh Freedom of Religion Ordinance, 2020. It has been alleged that Sister Bhagya attempted to convert a former Assistant Librarian whose services were terminated subsequently on account of poor performance. It is alleged that the complainant’s husband ailing with mental disorder was promised to be cured by the applicant if they got converted to Christianity and also stated that Christian God is greater than the Hindu God.

The counsel for the applicant submitted that the complaint is false and vexatious and emerges from the complainant’s frustration of being terminated. The applicant submitted a copy of complaint as evidence, which was sent to the SDM stating that the complainant was threatening self-immolation if she was not reinstated to her job. Similarly, an intimation was given to the police station that the school has received information that the complainant is proposing to falsely implicate the applicant by levelling allegations of forced conversion; and two days later this, the FIR was filed.

The court, in consideration of the submissions, granted anticipatory bail to the applicant upon her furnishing a personal bond in the sum of Rs.10,000/- (Rupees Ten Thousand Only) with one solvent surety in the like amount and ordered the applicant to join the investigation as and when required.

The complete order may be read here:

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Multiple Indian and international citizens, writers, artists filmmakers, sattirrists and organisations, have come together in solidarity with indian artists Munawar Faruqui, Nalin Yadav, Prakhar Vyas, Edwin Anthony, and Sadakat Khan, and called for the dismissal of all charges against them. The statement came in on Friday, just as news broke that two artists who were co-accused with Faruqui have been granted bail, however two others still remain in jail.

According to Indian Express, the Madhya Pradesh High Court on Friday granted interim bail to Prakhar Vyas and Edwin Anthony, who had been arrested along with stand-up comedian Munawar Faruqui. They were all arrested for allegedly “hurting religious sentiments” during a show earlier this year. Munawar and Priyam Vyas were recently released on bail, Nalin Yadav and Sadaqat Khan, the other accused in the case, are still in jail. The IE reported that Sadaqat’s bail plea was rejected, for the second time, by the Indore district court on Tuesday, while Faruqui was able to walk out of Indore jail on Saturday but only after the Chief Judicial Magistrate of Indore received a “call from a judge of the Supreme Court”, urging them to check the website for the apex court’s order that had put a stay on Munawar’s production warrant and granted him ad-interim bail.” Priyam Vyas was earlier granted bail by the juvenile court.

Citizens groups, artists and writers groups, across the country, and from different parts of the world are following the case and have expressed “deep concerns around the rights to liberty and freedom of speech in India.” They have held online shows, solidarity meetings, and signed public statements demanding that the trumped up charges against the performers be dropped.

Comedy is not a crime

Artists from India, and and from around the world have issued a joint statement, reaffirming that they stood on solidarity with Munawar Faruqui, saying, “A young Muslim stand-up comic arrested in India for a joke he did not crack.” The global community of stand-up comics, artists, political satirists, writers,  musicians, actors, entertainers, and concerned individuals, stated they were “alarmed at what is happening  in India, a country where laughter and irreverence has been part of traditions across religions  and communities, and humour has been deployed by artists through centuries.”

They added that Munawar has had to go all the way to the Supreme Court of India “just for interim  bail, which was his legal right. He has now been released on bail, but the charges against him  in the states of Madhya Pradesh and Uttar Pradesh remain. We call for the dropping or dismissal of these trumped-up charges for all six individuals.” 

Munawar faces criminal charges of “uttering words with deliberate intent to wound religious  feelings” among other sections of India’s penal code, for jokes he never cracked, in a  performance that did not take place. These absurd but serious charges carry jail time. The state  of Uttar Pradesh has also sought Munawar’s arrest on equally absurd charges. The institutions of a changing India appear to be colluding to give out a message—humour threatens the  powerful. And humour by a Muslim man in India will not be tolerated by Hindu supremacists.”

The artists said, “Munawar took risks that all artists take. But the stakes are higher for him. He comes  from a humble background. His family lost their home during the large-scale 2002 violence in  Gujarat, and moved to Mumbai where Munawar sold utensils and did other odd jobs during  the day and studied at night. He started stand-up comedy just two years ago, quickly garnering  some success. As artists and concerned individuals, we are alarmed that in a country that claims to be the  world’s largest democracy, a stand-up artist was imprisoned for over a month, and faces serious  criminal charges, for no crime.” They have all “called for an end to this persecution of Munawar Faruqui, his  associates, and all other performers, who must have the right in any real democracy to use their  art to comment on their times”.  

Even more solidarity has come from diasporic Indian groups such as Progressive India Collective in partnership with PEN America’s Artists at Risk Connection, Freemuse, and Reclaiming India. PEN America’s membership of over 7500 novelists, journalists and writing professionals makes it the largest of over 100 centres of the  PEN International network, and its Artists at Risk Connection is an online collaboration of more than 600 global organisations that provide life-saving resources to artists worldwide who face oppression, persecution, arrest, and violence for their creative work. Freemuse advocates internationally for freedom of artistic expression and cultural diversity, and has UN Special Consultative Status to the Economic and Social Council (UN-ECOSOC) and UNESCO. Reclaiming India is a joint initiative of the  global Indian diaspora comprising Dalit Solidarity Forum, the Global Indian Progressive Alliance, Hindus for Human Rights, India Civil Watch International, Indian American Muslim Council, and Students Against Hindutva Ideology. 

According to the collective statement issued, director of PEN America’s Artists at Risk Connection, Julie Trébault, said, “Comedy and satire are necessary to ensure a healthy democracy, as they facilitate the free communication of new ideas and  critical thinking. The arrest of Munawar Faruqui, his friends and associates, on arbitrary and unfounded  grounds is nothing short of a violation of their fundamental right to free speech and expression. We condemn the arbitrary arrests of these artists and call for their immediate release, as well as dropping  all charges that have been made against them.” 

Reclaiming India, has also released a statement during its South Asian American stand-up comedy special in support of Munawar, saying, “Faruqui is one individual, but a young, outspoken Muslim comedian. His case  encapsulates so much of what is happening in India in recent years. We are seeing rising discrimination and violence toward Muslims and other minorities, towards artists and members of the media, and  towards any public figure who dares to dissent against the government. That is why we, as young South  Asian Americans, are taking a stand in solidarity with Faruqui, and South Asia’s numerous others  prisoners of conscience.” 

Freemuse executive director Dr. Srirak Plipat, said, “The right to freedom of expression is a human right guaranteed by human rights instruments including  Article 19 of the ICCPR. Arresting comedian Munawar Faruqui under the allegation of hurting religious  sentiments for his stand-up performance is in clear violation of that right. Freemuse stands with Munawar Faruqui and his associates and calls for  the Indian authorities to release the detainees and drop all charges against them.” 

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Sessions court denies bail to stand-up comic held for ‘insulting’ Hindu deities

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