COURTESY HT JAN 26
Don’t take HC ‘lightly’, top court tells UP govt
Utkarsh Anand
letters@hindustantimes.com
New Delhi : The Supreme Court on Monday turned down a plea by the Uttar Pradesh government seeking to stop the Allahabad high court from examining the state’s contentious anti-conversion law, and said that no constitutional court should be taken “lightly”.
A Supreme Court bench, headed by Chief Justice of India (CJI) SA Bobde, made it clear that it will not transfer the petitions against the UP Prohibition of Unlawful Conversion of Religion Ordinance, 2020, to itself, but would like the high court to rule on the validity of the law.
“If the Allahabad high court is going to hear it and decide it quickly, why should we interfere? Why should we transfer the case here? We would like the advantage of the decision by the high court,” observed the bench, which also included justices AS Bopanna and V Ramasubramanian, clearing the decks for the high court to proceed suitably when the matter next comes up for hearing before it on February 6.
The state government, got adjournments from the high court in the last two hearings citing the pendency of the similar petitions before the Supreme Court.
Senior advocate PS Narasimha, representing the UP government, had requested the bench to transfer the two petitions pending before the Allahabad HC to itself to avoid “multiplicity of proceedings and conflicting decisions”.
Narasimha told the bench that it had issued notices to the state government on a batch of public interest litigations (PILs) filed separately in the Supreme Court, and hence, all the cases should be clubbed and be heard together.
But the bench was unimpressed with this submission. “When we issued notices, we were conscious of the fact that these were pending before the high court. That’s why we didn’t want to take cognisance. Now that the high court is going to decide it before we cab, why should we interfere?” it asked.
“Issuing notice doesn’t mean we said no high court should hear a matter. Today, we are asking a simple question that if the high court is going to hear it on February 6 and we are not going to hear it before, why should they not decide it?” the bench added.
As Narasimha urged the bench to adjourn the matter to a future date, when all the petitions on the ordinance could come up together, the CJI underscored that high courts also had the competence to determine various questions about validity of a law.
“We see nowadays that people take very lightly of the high courts. And we don’t like it. Every high court is a constitutional court. This is the law of the land that a high court should be approached first when it is competent to deal with a matter,” said the bench.
Asking the senior counsel to withdraw the petition, the CJI also told Narasimha that the bench did not issue notices earlier to enable the state government file a transfer petition before the top court.
Senior advocates Arvind Datar and Rakesh Dwivedi, along with advocates Vrinda Grover and Shadan Farasat, appeared before the bench to oppose the transfer petitions on behalf of the parties who have intervened before the high court in a set of cases there.
Weeks before the UP law was enacted, chief minister Yogi Adityanath had referred to a Allahabad high court judgment in September that said that if an individual converted to another religion purely in order to marry, that conversion would not be valid. The CM had said, “This is why our government has decided that we will act to stop love jihad in a firm way.” However, later that month, a division bench of the high court said that the earlier judgment was bad in law as it failed to take into account the right to privacy and dignity.
The state government, while defending the law in response to a clutch of PILs against the 2020 Ordinance, has submitted before the high court in an affidavit that community and social interest are on a much higher pedestal than the right of two people to enter into wedlock.
“When there is fear psychosis spread in the community at large and the community itself is endangered and succumbs to the pressure resulting in forceful conversion… it becomes necessary that the interest of the community as a whole requires protection and no microanalysis of individual interest can be looked into,” the affidavit, which HT has seen, read.
The UP ordinance came into force on November 27, and prescribes a jail term up to 10 years and fine up to ₹25,000 for conversion under marriage, fraud, coercion or enticement. The law came into force days after chief minister Yogi Adityanath promised to fight against “love jihad”, a term used by some Hindu groups to describe relationships between Muslim men and Hindu women.
Several activists and legal experts have argued that the law could be used to target Muslims and infringed on the fundamental rights to equality, freedom of religion, and life and personal liberty, besides an invasion into privacy.
Madhya Pradesh, also ruled by the Bharatiya Janata Party (BJP), has a similar law against illegal conversion by force, allurement or marriage. Another 2018 anti-conversion law in Uttarakhand, which also outlaws conversions by marriage, is under challenge in the apex court.