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Association for Advocacy and Legal Initiatives, a women’s rights group has moved Allahabad High Court seeking to intervene in the ongoing proceedings against the Anti-Conversion of Religion Ordinance passed by the Uttar Pradesh Government. The application has been filed through Advocates Vrinda Grover, Tanmay Sadh, Soutik Banerjee and Aakarsh Kamra.
The application states that the Ordinance has a disproportionate impact on the constitutional rights of women, especially under Articles 14, 15, 19, 21 and 25 of the Constitution, as well as an egregious impact on Constitutional rights of all citizens, according to LiveLaw.
To address the issue of alleged dispute between a choice to marry and religious conversion under personal laws and rebuff the state’s claims that conversion for marriage is not out of choice but due to intervention of personal laws, the application contends that there is no conflict in law between an individual’s right to choice in marriage and the right to practice a religion of one’s belief.
It reads, “The Special Marriage Act, 1954, allows for inter faith marriages in India, and there is no compulsion to convert one’s religion under personal laws to exercise the choice to marry someone outside one’s faith. It is only those persons who wish to practise the faith of their marital partner who choose to convert their religion for the purpose of marriage”. It is asserted that there is no systemic compulsion to convert one’s religion to marry a person of another religion.
The intervenors have argued that the impugned ordinance infantilises the legitimate choice made by an adult person who voluntarily chooses to opt for a way of life by converting to the religion of their partner to marriage. The application refers to Supreme Court pronouncements like Shefin Jahan v. Asokan KM (2018) 16 SCC 368 and Shakti Vahini v. Union of India (2018) 7 SCC 192 that have emphasised on the significance of non-interference of State and non-State actors in personal decisions and choice being an inextricable part of a woman’s dignity.
The organisation has pointed out that the term Love Jihad has often been used to stir divisive sentiments and promote archaic and patriarchal notions of honour which denude the individual autonomy of women. However, there is no official data available to substantiate the rhetoric and claim that Love Jihad is a real and grave phenomenon.
Further, apart from giving a broad definition of an “aggrieved person”, the organisation has submitted that the phrase “any marriage which was done for the sole purpose of unlawful conversion and vice-versa” in Section 6 of the impugned Ordinance, is undefined, overbroad and vague, thus open to rampant abuse and misuse, and suffers from the vice of lacking “sufficient definiteness” for a penal provision.
It is alleged that Section 8(3) of the impugned Ordinance is vague insofar as it does not provide any statutory guideline regarding the scope of the enquiry to be conducted by the District Magistrate. The application states, “The said provision states that the District Magistrate shall get an enquiry conducted through the police with regard to the “real intention, purpose and cause” of conversion. However, the impugned Ordinance provides no guidelines as to what intention, purpose and cause is legitimate or illegitimate. It also provides no clarity as to the scope of the power of the District Magistrate to act upon the findings of such an enquiry”, the application states.
The intervenors have also submitted that various rights accrue to parties to a marriage when a marriage is solemnized. However, it is contended that the impugned Ordinance by voiding marriages under Section 6, will result in an anomaly by denial of various rights to parties to a marriage and will make women more vulnerable. The plea reads:
“The right to Maintenance is an extremely important right which accrues after marriage to a wife, and is a legal tool embedded in the Code of Criminal Procedure as well as in personal laws to protect the rights of a woman in a marriage. Under the impugned Ordinance, a woman would have no legitimate claim to Maintenance if a marriage is rendered void under Section 6, as she would no longer be a ‘wife’ in the eyes of law. Children born out of wedlock in marriages which are subsequently rendered void by the impugned Ordinance would also suffer social as well as legal impediments to their life, as despite being worn out of wedlock, they would be rendered illegitimate children upon the marriage being declared void.”
On freedom of conscience, the applicant reads: “The Constitution of India in Article 21 allows for religion to be practiced in solitude, silently without pubic glare, and the decision of an individual to not make a public declaration of his conversion cannot render the conversion illegal or void, as that militates against the freedom of conscience and the right to liberty of an individual.”
The application filed by the women’s rights group also questions the reverse burden of proof that places the onus on the accused to prove his innocence which is against the standard rule of criminal law where the prosecution is responsible to prove the guilt of the accused. The application has been admitted by the Allahabad High Court, as per LiveLaw reports.