The Supreme Court on Wednesday refused to grant an immediate stay on an ordinance promulgated by Uttar Pradesh and a law passed in Uttarakhand prohibiting religious conversion for the sake of marriage, even as it said it would adjudicate over the constitutional validity of these laws.
The refusal to grant stay could have serious repercussions, especially for Muslim men, several of whom have been jailed in Uttar Pradesh since the law came into effect there on November 28.
Popularly referred to as “love jihad” laws, a reference to the conspiracy theory floated by Hindutva supporters that Muslim men are courting Hindu women merely to get them to convert to Islam, the ordinances provide for jail terms of up to 10 years if marriages are found to have been effected with the sole intention of converting the women. The marriages will also be cancelled.
The petitioners claimed that the laws violated the right to liberty.
The court on Wednesday initially asked the petitioners to contest the laws in the High Courts. However, when pointed out that more than one state is involved and states like Haryana and Madhya Pradesh are proposing to pass similar laws, a bench led by Chief Justice of India SA Bobde decided to issue notices to Uttar Pradesh and Uttarakhand.
One reason the court gave for refusing to grant a stay was that the petitions had been moved under Article 32 of the Constitution, which gives an individual the right to move the Supreme Court for enforcement of fundamental rights. However, the scope of Article 32 is narrower than the scope of Article 226 under which a High Court is empowered enforce the fundamental rights by issuing any order it deems fit.
The legal reasoning aside, the court failed to acknowledge the serious repurcussions of keeping the matter pending without a stay.
Within a month of the ordinance coming into effect, Uttar Pradesh has filed 14 cases and arrested 49 people. That number has probably risen since then, given the great zeal with which the state government is pursuing this conspiracy theory.
Given the speed at which the courts work, it may take months, if not years, for the cases against “love jihad” to be adjudicated.
Still pending before the court for more than a year are the challenges to the Citizenship Amendment Act, in which over 140 petitions were filed, the challenges to the abrogation of the special status of Jammu and Kashmir and the Sabarimala review cases. The electoral bonds cases, meanwhile, have been pending for over three years.
Even after hearings begin, it will take fair bit of time for the cases to conclude. For example, the original Sabarimala case began in 2006 and ended 12 years later in September 2018. There was then a review and a reference that emanated from the review in 2019. The case review petitions are still pending.
The case that led to the decriminalisation of homosexuality was filed in 2016 and ended two years later in 2018.
The court should have recognised that the “love jihad” matter does not involve just constitutional questions but also the liberty of Muslim men, who will continue to be detained if the law remains in operation.
In a demonstration of how arbitrarily the law is being applied, the police in Uttar Pradesh used it to detain a teenager walking home from a birthday party with a friend. In another case, a couple was hauled away from their own wedding, even though both of them were Muslim.
A stay on the law by the Supreme Court would also have sent a message to other states like Madhya Pradesh that the Supreme Court would view such legislation with seriousness and may have discouraged them from going ahead.
Uttar Pradesh’s defence
In the meantime, the Uttar Pradesh government on Thursday filed its counter affidavit in the Allahabad High Court to public interest litigations challenging the laws.
In a shoddily written document, the government has claimed that the ordinance passed was in public interest and there is now fear psychosis in the community at large about marriages being used to effect forced conversions.
The government has taken the position that when a person changes his or her religion, they have to follow the personal laws of the new religion and this causes complexities and hurts the dignity of the individual. Thus, in a forced conversion through marriage, the government claims that since the individual has not converted of their free will, their dignity and equality in the religion will be compromised.
In essence, the Uttar Pradesh government is flipping the argument of individual autonomy on its head by claiming that there has to be a balance between the right to liberty and the right to conscience, which gives an individual the freedom to choose their religion. In this, the state has also invoked public order as a defence, arguing that the state has a duty to stop forceful conversion.
In November, Scroll.in had noted that this could be a possible defence of the Uttar Pradesh government.
The state government has also taken a position that community rights will always trump individual rights, forgetting the fact that there are several cases in which the Supreme Court has held that the community cannot circumscribe the exercise of individual autonomy of adult women.
The affidavit also provided examples of what constitutes forced conversion and what does not.
The document said if a person of a different religion studied in a Christian convent school and read Christian scriptures for the morning prayers, it would not be considered forced conversion if the person does not change their religion.
Similarly, the affidavit argues that when a Hindu woman marries a Muslim man, she would not be treated as a wife as the Muslim personal law does not recognise such a marriage. This would force her to convert and thus hurt her dignity.