- Apprentice Lawyer
The apex court also declined to stay similar law which is in force in the States of Uttarakhand.
The Bench of Chief Justice of India SA Bobde, and Justices AS Bopanna and V Ramasubramanian, however, agreed to examine the validity of the ordinance and the laws and issued notice to UP and Uttarakhand governments.
The top court was hearing petitions challenging the Constitutional validity of the Uttarakhand Freedom of Religion Act, 2018 and Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 which regulate religious conversion and inter-faith marriages.
The petitions by a Delhi based lawyer and Mumbai based Citizens for Justice and Peace (CJP) under Article 32 of the Constitution stated that the ordinance and law are violative of Articles 21 and 25 as it empowers the State to suppress an individual’s personal liberty and the freedom to practice religion of one's choice.
The Uttarakhand and UP law essentially bar conversion to any other religion for the purposes of marriage.
The controversial ordinance titled, Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 (Uttar Pradesh Vidhi Virudh Dharma Samparivartan Pratishedh Adhyadhesh, 2020 in Hindi) was cleared by the State Cabinet in November and was signed off by the State Governor, Anandiben Patel on November 28.
The ordinance lays down a detailed procedure to be followed before an individual can convert from one religion to another. Violation of the same entails criminal liability on the individual who undergoes conversion and the individual who converts the person.
The ordinance also states that no person shall convert or attempt to convert either directly or otherwise any other person from one religion to another by use or practice of misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means or by marriage nor shall any person abet, convince or conspire such conversion
The petitioners submitted that Act and ordinance seemed to be premised on conspiracy theories and assume that all conversions are illegally forced upon individuals though they have attained the age of majority.
It intrudes into the right to privacy under Article 21 of the Constitution and freedom of religion under Article 25, it was contended.
The plea also highlighted that the UP ordinance casts the burden of proof on the accused against the established principles of criminal jurisprudence.
"The burden of proof gets shifted and it is dangerous as it is a non bailable offence and also under a circumstance where they are pitched against hostile communities and family members who masquerade in the glory of protection of women," one of the petitions said.
Initially, CJI Bobde was not in favour of issuing notice after Solicitor-General Tushar Mehta informed the Court that both the challenges are pending in respective State High Courts.
However, advocate Pradeep Kumar Yadav for petitioner Vishal Thakre argued that Supreme Court can take up cases which are pending in different high courts.
Senior Advocate CU Singh submitted that the impugned legislations are "obnoxious" in nature and that couples were being picked up by force from wedding ceremonies.
However, CJI Bobde clarified that a stay cannot be issued unless the opposite parties are heard especially under Article 32 jurisdiction.
The States were asked to file their replies within 4 weeks.