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'Love Jihad': SC declines to stay UP, Uttarakhand laws against inter-faith marriages, issues notice
New Delhi, January 6, 2021
The Supreme Court on Wednesday declined to stay the provisions of an Uttar Pradesh Ordinance and an Uttarakhand law, brought to check unlawful religious conversions for inter-faith marriages.
A bench headed by Chief Justice S. A. Bobde agreed to examine the validity of the legislations -- The Uttar Pradesh Prohibition of Unlawful Conversion Of Religion Ordinance, 2020' and The Uttarakhand Freedom Of Religion Act, 2018 -- and issued notice to the two state governments. The top court has sought response from them within four weeks.
The counsel petitioners - Vishal Thakre and others, and NGO Citizens for Justice and Peace - during the hearing stressed for a stay on these "love jihad" laws and termed the provisions as "oppressive" and "obnoxious".
The bench, also comprising Justices A. S. Bopanna and V. Ramasubramanian, replied that it would have been ideal if the petitioners had moved the respective High Courts instead of coming to the apex court. The Chief Justice said the challenge to the law is already pending in High Courts and asked the petitioners to go there.
"We are not saying you have a bad case, but approach the High Court in the first instance, instead of coming here," observed the bench.
Senior advocate C. U. Singh, representing one of the petitioners, submitted that it is obnoxious to put burden of proof on the married couple to establish that the motivation for the marriage is not conversion. Singh cited that several incidents have come on record where mobs have disrupted inter-faith marriages and also cited the severe punishment under these laws. Another counsel for a petitioner cited that similar legislation is on the way in Madhya Pradesh and Haryana.
Singh alleged that several innocent persons had been arrested based on the UP Ordinance against "love jihad". He cited that the offence under this law has a sentence of up to 10 years and it is also a non-bailable offence. Solicitor General Tushar Mehta submitted that the Allahabad High Court is already seized of the matter.
The bench observed that the petitioners were asking for a relief which cannot be entertained under Article 32. "Whether a provision is arbitrary or oppressive needs to be seen. This is the problem when you come directly to the Supreme Court," said the Chief Justice.
The bench said it would hear arguments of the petitioners against the law and then decided to issue notice rather than staying the laws on Wednesday. The top court will hear the matter after four weeks.
One of the pleas moved by two advocates -- Vishal Thakre and Abhay Singh Yadav -- and a law researcher Pranvesh, states that the ordinance disturbs the basic structure of the Constitution. "The most important issue was whether Parliament has the power to amend the fundamental rights enshrined under Part III of the Constitution," said the plea.
The petitioners contended that Parliament has no power to amend the fundamental rights, and if this ordinance is implemented it will harm the public at large and will create a chaotic situation in the society.
The plea said: "It is also pertinent to mention herein that the ordinance is passed by the State Government/s of Uttar Pradesh and Uttarakhand is against the provisions of the Special Marriage Act, 1954 and it will create fear in the society who is/are not part of Love Jihad they can be falsely implicated in the ordinance."
The petitioners contended they are aggrieved by the ordinance passed by the state government and prayed before the top court that the law passed by Uttar Pradesh and Uttarakhand should be declared ultra-vires and null and void, as it disturbs the basic structure of the Constitution and also its against public policy and society at large.
"This ordinance can become a potent tool in the hands of bad elements of the society to use this ordinance to falsely implicate anyone in this ordinance and there are probabilities of falsely implicating persons who are not involved in any such acts and it will be a grave injustice if this ordinance is passed," said the plea.