SC seeks status of pending cases before HCs against state laws regulating conversion through marriages

It also asked its registry to apprise it of the status of the appeal of Gujarat government challenging the order of the high court that stayed the operation of Section 5 of Freedom of Religion Act

Supreme Court
Supreme Court


The Supreme Court on Monday sought to know the status of cases pending before different high courts challenging controversial state laws regulating religious conversion due to interfaith marriages, and said if all cases are similar in nature it may transfer them all to itself.

The top court also asked its registry to apprise it of the status of the appeal of the Gujarat government challenging the order of the high court which had stayed the operation of Section 5 of the state's Freedom of Religion Act, 2003 that mandated prior permission of the district magistrate for conversion through marriage.

A bench of Chief Justice DY Chandrachud and Justice PS Narasimha asked NGO 'Citizens for Justice and Peace' and the states of Uttar Pradesh, Madhya Pradesh, Uttarakhand and Himachal Pradesh to apprise it about the status of cases challenging the state laws on conversion through marriage.

"You all file a note indicating the status of cases, challenge to law, ordinance or amendment and stage of the proceedings before the respective High Court. We want to have conspectus of the matter. We have not taken a conclusive view but if all these cases are pari materia (on the same subject or matter) then we will transfer all of them here or if the proceedings are at an advanced stage, then we will allow the High Courts to proceed", the bench said.

The top court asked the NGO and the state governments to file their note in two weeks.

At the outset, senior advocate CU Singh, appearing for the NGO said initially it had challenged the laws of Uttarakhand and Uttar Pradesh and ordinances on similar laws of Madhya Pradesh and Himachal Pradesh which have now become Acts.

He said during the last hearing on February 17, 2021 the top court had permitted the NGO to make Himachal Pradesh and Madhya Pradesh parties to its pending petition which it has done.
"These laws enacted by different states are more or less similar to each other and have fallen foul of several landmark judgements of the top court. They mandatorily direct interfaith couples to seek permission of authorities to marry and to convert.
"They have not only interfered with the right to profess any religion but also the right to choose a life partner. These laws also put the onus on the couple to prove that they are willingly marrying and converting," Singh said.

He added the Himachal Pradesh High Court had earlier struck down various provisions of an earlier law on religious conversions saying it ventured into the domain of privacy but the state government in 2019 brought back the struck down provisions and made them even more stringent.

Senior advocate Indira Jaising, appearing for one of the caveators, said the high courts of Madhya Pradesh and Gujarat have passed detailed orders on the issue and she is appearing in MP matter.

"All these cases, which are pending before different High Courts are pari materia and it would be appropriate if this court transfers them to itself and gives an authoritative pronouncement," she said.

Jaising said since the Gujarat government has filed an appeal before this court against the high court order, all other matters can be brought before this court and heard together.

Additional Solicitor General KM Nataraj, appearing for the Centre, said several petitions have been filed in different high courts and all are at different stages of hearing.

Additional Advocate General Garima Prashad, appearing for the UP government, said half a dozen cases are pending before the Allahabad High Court and the proceedings are at different stages.

The bench said it is not passing any orders at present but would like all the parties to file a small note on the cases pending in different high courts so a prima facie view could be taken as to what course be adopted for proper adjudication of the issue.

The top court also allowed lead petitioner Vishal Thakre to withdraw his plea challenging the laws of Uttar Pradesh and Uttarakhand and asked him to file a fresh petition after making suitable amendments.

The Gujarat High Court had by its orders dated August 19 and August 26, 2021 stayed the operation of section 5 of the state's Freedom of Religion Act, 2003.

The apex court had on January 6, 2021 agreed to examine certain controversial new laws of Uttar Pradesh and Uttarakhand regulating religious conversions due to such marriages.

The controversial UP law relates to not only interfaith marriages but all religious conversions and lays down elaborate procedures for any person who wishes to convert to another religion.

The Uttarakhand law entails a two-year jail term to any person or persons found guilty of religious conversion through "force or allurement". The allurement can be in cash, employment, or material benefit.

The plea filed by the NGO alleged the legislations violate Articles 21 and 25 of the Constitution as they empower the state to suppress an individual's personal liberty and the freedom to practise the religion of one's choice.

Jamiat Ulama-I-Hind, in its application filed through advocate Ejaj Maqbool, raises the issue of fundamental rights of the Muslim youth who are being allegedly targeted and demonised by using the impugned ordinance which in itself is unconstitutional being violative of Articles 14, 21 and 25.

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