Uttar Pradesh (UP): Over six days to 16 January 2024, the Allahabad High Court rejected petitions from nine interfaith couples because they did not solemise their marriages according to the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Act 2021, popularly known as the anti-conversion law.
The majority of these petitioners sought protection from any kind of threat from the “respondents”—their parents—but the court preferred procedure over their personal liberty and refused protection until they complied with the law, which is under challenge in the Supreme Court for being unconstitutional.
“In such view of the fact, the relief prayed for by the petitioners cannot be granted. Consequently, the writ petition is dismissed,” the court said in all the orders. “However, it is open to the petitioners to prefer a fresh writ petition in case they solemnise marriage after following the due procedure of law.”
Justice Saral Srivastava held that the marriages were “not in accordance” with UP’s anti-conversion law, popularly called the love-jihad law after a popular Hindu right-wing conspiracy theory.
Five of the nine couples involved Hindu women who converted to Islam, two Muslim women who converted to Hinduism, one in which both converted to Buddhism, and one retained their faiths, Scroll reported on 3 February 2024.
Among the formalities of the anti-conversion law that the couples had not fulfilled: having their conversions certified by a district magistrate under the anti-conversion laws, a process that involves 60-days advance notice to the local district magistrate, who invites “objections” for three weeks; and public disclosure of personal details.
Scroll reported that most of the petitioners had tried to follow the procedures set out by the law some months ago, but no conversion had been cleared by officials.
The high court, said former judges and lawyers I spoke to, could and should have granted interim or temporary protection to the couples until they complied with the law’s formalities. The anti-conversion law says nothing about protecting couples or individuals converting of their free will.
UP’s anti-conversion law and similar ones in at least 12 states have been frequently criticised (here, here and here) as unconstitutional.
The law has provisions that violate the Constitution, upends the burden of proof and contradicts established laws that the Supreme Court has often restated.
UP’s anti-conversion law “takes away the right of choice of every human being, and it is absolutely unconstitutional,” said Justice Deepak Gupta, former Supreme Court judge, in a December 2020 interview to NDTV. “Anyway, what business does the government have to deal with the personal beliefs of any human?”
In October 2023, an Article 14 investigation revealed how right-wing Hindu groups were misusing the law to harass Christians, while the police registered cut-copy-paste FIRs based on “prior information” and saying “bad things” about the Hindu religion.
Petitions challenging the anti-conversion laws of UP and four other states (Uttarakhand, Himachal Pradesh, Madhya Pradesh and Gujarat)—all enacted/amendmeded between 2018 and 2021 by Bharatiya Janata Party (BJP) governments—are pending before the Supreme Court.
The case, Citizens for Justice and Peace Vs State of Uttar Pradesh, was first heard in January 2021 with the last hearing on 25 April 2023. There is no word on the next hearing.
The Supreme Court will consider if anti-conversion laws restrict the right to choice, privacy, personal liberty, marriage and dignity guaranteed under Article 21 of the Indian Constitution, and if anti-conversion laws violate the freedoms of religion and conscience under Article 25.
“When two adults marry out of their volition, they choose their path; they consummate their relationship; they feel that it is their goal and they have the right to do so,” said the Supreme Court in 2018. “And it can unequivocally be stated that they have the right and any infringement of the said right is a constitutional violation.”
Constitutional Protections Available
The Allahabad High Court, while rejecting all the petitions, only focused on compliance with the anti-conversion law, not on protecting the liberty of all these couples, who approached the high court under Article 226 of the Indian Constitution, which allows the court to offer such protection.
In their writ petition, the couples requested the court to direct the private respondents (family) “not to harass the peaceful matrimonial life of petitioners in any manner” and also prayed before the court to provide protection of life and liberty to them, as they were under threat.
Article 226 gives high courts powers to enforce the fundamental rights of Indian citizens.
UP’s anti-conversion law demands a “conversion certificate” under sections 8 and 9, which put the liberty of such couples at risk in cases where families are not supportive.
Section 9 defies common understanding, creating a second hurdle by allowing “objections” from the public after conversion. If two adults are living together then these objections intrude into personal lives, unless the conversion is done by force.
“Anti-conversion laws go to the validity of the marriage,” said senior advocate Sanjay Hegde. “Even if these couples are not married, in a live-in relationship, they are entitled to protection of life & liberty.”
Former Allahabad Chief Justice Govind Mathur said that if two adults were in a relationship that imperilled their lives, then the State had to protect them under Article 21, whatever the status of their relationship.
“If two adults are in any relationship and that causes danger to their life, then Article 21 demands to extend protection to them,” said Justice Mathur.
“I have not seen the (January 2024) order but I am of the firm view that the protection of life has nothing to do with marriage,” said Justice Mathur, who in 2020 presided over a bench that heard a challenge to the anti-conversion law.
Challenges to the anti-conversion laws filed before the Allahabad High Court are pending because the Supreme Court is hearing the case. In 2021, the Allahabad High Court had issued notice on these petitions.
A refusal to extend sanctuary to those who seek to exercise their right to personal autonomy and choice of spouse on the ground of procedural irregularities would expose people to “catastrophic ramifications”, such as a cacophony of criminal cases, aggressive persecution by families or even honour killings, said advocate Shashwat Anand, counsel for petitioners who challenged the anti-conversion or love-jihad law in the Allahabad High Court.
The Supreme Court in Shakti Vahini vs Union of India (2018) criticised honour killings and required the State to ensure that “the human rights of a daughter, brother, sister or son are not mortgaged to the so-called or so-understood honour of the family or clan or the collective”.
“The act of honour killing puts the rule of law in a catastrophic crisis,” said the Supreme Court.
“The choice of an individual is an inextricable part of dignity, for dignity cannot be thought of where there is erosion of choice,” said the Supreme Court. “If the right to express one's own choice is obstructed, it would be extremely difficult to think of dignity in its sanctified completeness.”
A History Of Protecting Inter-Faith Love
Over the last five years, the Allahabad High Court frequently ordered (here, here, and here) protection to interfaith and live-in couples, observing that the right of an adult to live another irrespective of their religion was intrinsic to the right to life and personal liberty.
In June 2021, Justice Siddhart of the Allahabad High Court issued 25 orders over the course of three days, ordering the police to provide protection to couples who feared for their safety after threats from family.
"We fail to understand that if the law permits two persons even of the same sex to live together peacefully then neither any individual nor a family nor even the state can have an objection to the relationship of two major individuals who out of their own free will are living together,” said the court in Salamat Ansari vs State of Uttar Pradesh (2021).
That same year, in the case of Shaista Parveen @ Sangeeta & Anr. vs State of UP & Ors., the court reiterated that no one could disrupt the lives of two consenting adults. “The Court has repeatedly held that where the two individuals, having attained the age of majority, are living together, nobody is entitled to interfere in their peaceful life,” the court said.
The debate about live-in relationships and inter-faith marriages has been underway since the term “love-jihad”—a supposed conspiracy by Muslim men to lure, marry and convert women of other faiths—was coined by the Hindu right and has made its way into the lexicon of BJP ministers and members.
The legality of live-in relationships was first recognised by the Allahabad High Court in the case of Payal Sharma versus Nari Niketan (2001), when the court said an unmarried man and a woman living together was not a crime even if it is a subject of taboo within Indian society
In a 2014 case called Re: Indian Woman Says gang-raped on orders of Village Court published in Business and Financial News, the Supreme Court clarified this right of choice by stating that “an inherent aspect of Article 21 of the Constitution would be the freedom of choice in marriage”.
Even in the landmark Hadiya Case (2018), Shafin Jahan vs Ashokan K M, where the Supreme Court recognised a woman’s right to choose as part of her personal liberty and individual authority. “The choice of a partner whether within or outside marriage lies within the exclusive domain of each individual,” said the Supreme Court.
“Our Constitution guarantees every individual the right to not only freedom of religion, [but] the right to have his or her own belief, and this belief needn't be a religious belief, you could be an atheist, you could be agnostic, you could be anybody,” said Justice Gupta, quoted earlier. “But it is your right to believe, and the Constitution also guarantees that each one has the right to change their belief."
Justice Gupta’s comments spotlight a number of problems with UP’s anti-conversion or love-jihad law, criticised as it is for impeding the rights to profess or change religion, the right to choose a partner and the right to privacy.
The Problems With UP’s ‘Love-Jihad’ Law
In 2020, the State of Uttar Pradesh promulgated the Prohibition of Unlawful Conversion of Religion Ordinance, 2020 and in 2021, the Uttar Pradesh assembly passed the Bill, which later became an Act.
It has provisions, as I said, that violate the Constitution and contradict the burden of proof and established law, which the Supreme Court has emphatically reconfirmed, especially as related to privacy and the right of adults to marry who they choose.
Section 6 refers to interfaith marriages and outlaws those “done for sole purpose of unlawful conversion or vice-versa”.
Section 8, which says anyone who wants to convert to submit a form to the district magistrate 60 days in advance, requires the form to have a declaration that the person wants to change religion with “free consent”, without force, coercion, “undue influence” or “allurement”.
A month before the conversion ceremony, anyone who converts must disclose its location to the district magistrate, after which the police are meant to launch an inquiry.
After conversion, section 9 requires the converted person to disclose the name of parents, address, income, occupation, name of priest and witnesses to the district magistrate, who must display these details and a copy of the declaration of conversion on the notice board of her office for three weeks, inviting objections if any.
The converted person must appear before the district magistrate within 21 days of sending the declaration to establish identity and confirm the declaration. Only after all these formalities does the government issue a conversion certificate.
The obvious flaw with these provisions is that if conversions were done by force, then those converted would never seek the court's intervention to protect them from their own families.
Making public such information makes a private affair a public ceremony and risks pressures from or attacks by vigilante groups, who have lynched or even beheaded those who have converted to another faith, which is why couples seek protection from courts.
In K S Puttaswamy vs Union of India, the Supreme Court held in 2018 that the right to privacy was a fundamental right and “life and personal liberty are inalienable rights”.
“These are rights which are inseparable from a dignified human existence,” said the Supreme Court. “The dignity of the individual, equality between human beings and the quest for liberty are the foundational pillars of the Indian constitution.”
Declaration that the anti-conversion law requires directly infringe the right to privacy of an individual and goes against the law as laid down in the Puttaswamy judgment.
In Puttaswamy, the Supreme Court held that the right to choose a life partner was a part of the right to privacy, and any invasion of this right by the State must meet a threefold requirement, related to legality, need and proportionality.
Even if UP’s anti-conversion laws fulfil the requirement criterion, the criteria of need and proportionality are “questionable”, proportionality “even more so” because the law “makes every conversion per se illegal and casts a burden on the converted person to not only make a declaration, but also prove that such conversion was not unlawful,” academics Rahul Kaul and Siddhartha Srivatava wrote in ILI Law Review in 2020.
When the Supreme Court delivered the Puttaswamy judgement, it was settled law that adult couples had a right to live peacefully without interference.
The Supreme Court in Lata Singh vs State of UP (2006) said “administration/police authorities throughout the country will see to it that if any boy or girl who is a major undergoes inter-caste or inter-religious marriage with a woman or man who is a major, the couple are not harassed by any one nor subjected to threats or acts of violence”.
Anyone who did so, said the Supreme Court, must be “taken to task by instituting criminal proceedings by the police against such persons”.
Upending The Burden Of Proof
The burden of proof in most criminal cases lies with the prosecution, but UP’s anti-conversion law upends the burden of proof by requiring those who have converted or those who have helped them to prove that they have not.
This makes it easy for family members and others, such as vigilante groups, to file false complaints without evidence to harass interfaith couples or those who have converted, as Article 14 reporting of UP’s anti-conversion law in October 2023 has proved (here and here).
Section 4 of the law allows relatives of those who want to convert, such as parents, brother, sister or any other relative, to file with police a first information report, the formal start of criminal proceedings.
Justice A P Shah, former Delhi High Court judge, said in 2020 that the anti-conversion law reflected the philosophy of a khap panchayat (or clan council) with the objective essentially being to subjugate women.
Justice Shah said that the anti-conversion law was "capable of great public mischief".
“With large-scale arrest of people and stories of separation, it is clear that the anti-conversion law must be struck down immediately and certainly must not be permitted to be enacted into a statute,” said Justice Shah. “We need to stop the destruction of these freedoms guaranteed by the Constitution”.
(Areeb Uddin Ahmed is an advocate practicing at the Allahabad High Court.)
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