Uttar Pradesh ordinance on inter-faith marriage, conversion motivated by communal agenda to reap electoral benefits: PIL in Allahabad High Court

The ordinance promulgated by the Uttar Pradesh cabinet on religious conversion and inter-faith marriages is motivated by communally divisive agendas with the object to polarise communities and reap electoral benefits, a public interest litigation (PIL) petition filed before the Allahabad High Court challenging the ordinance said.

The ordinance, “Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020” which was signed off by the State Governor, Anandiben Patel on November 28 has been a subject of intense debate due to the implications it could have on inter-faith marriages.

However, the ordinance governs not just inter-faith marriages but all religious conversions and lays down elaborate procedure for any person who wishes to convert to another religion.

The petition filed by one Saurabh Kumar has challenged the ordinance on the ground that it is violative of privacy and individual autonomy guaranteed under Article 21 of the Constitution of India.

The plea filed through advocates Devesh Saxena, Shashwat Anand and Vishesh Rajvanshi contends that the ordinance is both morally and constitutionally repugnant.

The plea states that Sections 3,4 and 6 of the ordinance provide the State with policing powers over a citizen's choice of life-partner or religion and militate against the fundamental rights to individual autonomy, privacy, human dignity and personal liberty guaranteed under Article 21 of the Constitution.

The ordinance leads to an unreasonable intrusion into the domain of a personal autonomy, it has been submitted.

"The provisions mandate an advance notice of a 60 days to the District Magistrate before the intended conversion, which is to be followed by a police enquiry into the circumstances of conversion. The religious priest doing the conversion is also required to give such prior notification. After the conversion, the person has to appear before the District Magistrate for confirmation. The authority will notify the conversion and will invite public objections, before confirming the conversion," it adds.

Further, the petition also contends that the above provisions are antithetical to the law laid down by a Division Bench of the Allahabad High Court in Salamat Ansari & 3 ors. v. State of U.P. and ors., wherein it was held that the right to live with a person of his/her choice irrespective of religion professed by them is intrinsic to right to life and personal liberty.

It has been submitted that ordinance assumes a 'tone-deaf' position to this latest ruling of the High Court, which is in line with the expansive meaning given to 'personal liberty' by the Supreme Court in its decisions in K. S. Puttaswamy, Navtej Singh Johar and many others.

The petitioner has submitted that in KS Puttaswamy the Supreme Court ruled that an invasion of right to privacy by the State must meet a threefold requirement of Legality, Need and Proportionality to pass the Constitutional muster. It is the petitioner's case that while the the ordinance satisfies the first condition of 'legality', the State action falters when it comes to the tests of 'need' and 'proportionality'.

The ordinance, the plea alleges, is to merely serve a political purpose and is motivated by communally divisive agendas which could impact the societal peace and harmony.

"The issue is emotive and seeks to divide communities. It is yet another way to polarise our polity and reaping electoral dividend," the petitioner has contended.

Arguing that the penal provisions go against the core concepts of criminal jurisprudence, it has been stated that the practice of converting religion just for the sake of marriage might at worst be termed as “ethically objectionable”, however, the same cannot be criminalised.

The petitioner has, therefore, sought a stay on the operation of the impugned ordinance which has completely failed to to strike a balance between freedoms and mala fide conversions.

Recently, a similar petition was filed before the Supreme Court challenging the validity of the ordinance stating that the ordinance will be misused to falsely implicate people and will lead to chaos and fear.