HC refuses to stay 'love jihad' ordinance; khap law: Ex-judge
‘Difficult to believe it was passed by a govt in a country governed by the rule of law’
Prayagraj : The Allahabad High Court on Friday refused to stay the Uttar Pradesh government's ordinance to ban unlawful religious conversions, but issued notices to the state and others on a bunch of PILs that challenged the law.The Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance, 2020 was promulgated in November to prohibit religious conversions in the name of 'love jihad'. A bench comprising Chief Justice Govind Mathur and Justice Piyush Agrawal asked the state government to file a counter affidavit by January 4 and fixed the case for hearing on January 7, 2021.
The bench, however, refused to grant any interim relief in the form of a stay order.As per the ordinance to ban unlawful religious conversions, the onus was put on the defendant to prove that the conversion was not for marriage.It provides for 1-5 year imprisonment if an accused fails to prove that the conversion of the woman was not for marriage or by use of force, allurement etc.
The Allahabad High Court on Friday stayed the arrest of a man booked by the UP Police under the recently promulgated Prohibition of Unlawful Conversion of Religious Ordinance, 2020
The Bench was hearing a criminal writ petition filed by Nadeem, who was booked by the UP Police on November 29, two days after the Ordinance was promulgated, on a complaint filed by one Akshay Kumar.
The ordinance, aimed at curbing cases of "love jihad", reflects the philosophy of a khap panchayat, with the objective essentially being to subjugate women, former Delhi High Court Chief Justice AP Shah has said.
The retired judge said that several of its provisions violate the fundamental right to practice religion, striking at the very root of right to life and liberty guaranteed under the constitution. This ordinance, he said, was capable of great public mischief.
The former judge found it difficult to believe it was passed by a government in a country governed by the rule of law and a constitution.
Justice AP Shah, who was also former Chairman of the Law Commission, said, several provisions of the ordinance seriously violate the fundamental right to practice religion as guaranteed by Article 25 and strike at the very root of Right to life and liberty guaranteed by Article 25.
"In any criminal case (where) conversion is presumed to be illegal, the burden of proof is usually on the prosecution. In this ordinance, every religious conversion is presumed to be illegal. The burden of proof lies on the person accused of illegal conversion to prove that it is not illegal. So there is a presumption of guilt. The offence is cognisable. It is non-bailable and the police can arrest anyone," Justice Shah said.
The ordinance, he said, requires a person looking to convert another, to go to a district magistrate who conducts an enquiry. If the conversion is based on allurement, then it is illegal.
However, the term allurement itself is defined in a very broad way in this law: a single wedding gift like a wrist watch, a bangle, or say a ring, would amount to an allurement, the former judge said.
"Interestingly, reconversion is not illegal. Even if it is by fraud or force. If a person is converted voluntarily, he might be arrested. If he is forced to reconvert, then there is no culpable offence," he pointed out.