Author: Aarushi Chawla
Vivekananda Institute Of Professional Studies, Delhi
In the light of gearing up division among communities, the UP government passed the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance of 2020 infamously known as the “love jihad law”. UP chief minister Yogi Adityanath at an election rally at Jaunpur had quoted a judgment of Allahabad High Court delivered in September 2020 by a single bench. The Court in that case of Priyanshi @ Km. Shamren and others Vs. State of U.P. and Another, observed that “conversions only for the sake of marriage are unacceptable”. UP Chief Minister emphasized the idea of the love jihad ordinance based on the aforesaid judgment. This problematic judgment was overturned by a division benchof Allahabad High Court headed by Justice Pankaj Naqvi and Vivek Agarwal. The Court while holding the judgment of September 2020 as bad in law observed that “We fail to understand that if the law permits two persons even of the same sex to live together peacefully then neither any individual nor a family nor even the state can have an objection to the relationship of two major individuals who out of their own free will are living together.” The Court noted that the couple should be seen as adults and not as Hindu and Muslim who have the right to life and personal liberty as established under Article 21. The Court also made a reliance on the apex Court judgment in Shafin Jahan v. Ashok K.M.
Despite the order by the Allahabad High Court, the ordinance came into effect and here the problem arises.
THE PROBLEMATIC ORDINANCE
The ordinance was passed by the UP government on November 28, 2020. We here notice the word ordinance which clearly establishes that the law has been passed on an emergency basis without the parliament having a say in it. But India has a history of these so called “emergency laws” , the recent being the farmer laws that have gathered massive protests in the nation.
After Uttar Pradesh, other three BJP ruled states are under consideration to make a law to curb this social evil.
It mentions that the intention regarding conversion needs to be filed before the District Magistrate or the Additional District Magistrate at least two months in advance and thereupon an enquiry will be conducted through police. This process will be followed by the converter furnishing all the personal details which will be subject to objection. It is yet not clear who are the people who can object to such a declaration by the converter.
Under the said law, those who are found guilty of conversion done through “misrepresentation, force, undue influence, coercion, allurement or by any fraudulent means” in contravention of the law would face jail term of one to 5 years, and a minimum fine of INR 15,000. Along with it, the penalties are different in case of a minor, a woman from scheduled caste or scheduled tribe or the conversion is at a mass level, there are separate provisions with respect to penalty.
The ordinance creates a problem as it deprives a woman of her right to choice. Right to choose one’s life partner is a part of fundamental right and same has been upheld by the Supreme Court in numerous cases such as in Navtej Singh Johar v. Union of India , Lata Singh v. State of UP and many more.
Moreover, the issue of public notice with regard to conversion is likely to create problems for the couple. As a similar provision exists in the Special Marriage Act, 1954, the Allahabad High Court while hearing a habeas corpus petition in the case of Safiya Sultana v. State Of U.P.  observed that “Publication of a mandatory notice under the provision of the act is an invasion into the fundamental right of liberty and privacy. However, it shall be open for the Marriage Officer, while solemnizing any marriage under the Act of 1954, to verify the identification, age and valid consent of the parties or otherwise their competence to marry under the said Act. In case he has any doubt, it shall be open for him to ask for appropriate details/proof as per the facts of the case.”
The ordinance treats women as a special category with severe punishment for the same. The Court in the case of State of West Bengal v. Anwar Ali Sarkar  had held that classification is permitted under Article 14 but the same be bound by the twin test laid in the case. Also, in another case, the Indian Young Lawyers Association v. State of Kerala , the Supreme Court said, “Human dignity postulates an equality between persons. The equality of all human beings entails being free from the restrictive and dehumanizing effect of stereotypes and being equally entitled to the protection of law.” Keeping in consideration the aforesaid arguments, The UP ‘love-jihad’ law can potentially become a further tool of harassment and vilification of Muslims.
THE STORY CONTINUES FURTHER: MASSIVE ARREST AND CASES REGISTERED
The controversial law emanates from the old-stubborn thinking of the folks. While walking around 10 pm on December 14, 2020, two friends were caught and beaten up with sticks. On enquiry it was found that they belonged to different religions. Further, fake charges were made up against the boy of converting a girl to Islam. The list of the cases seem to never ending as about 14 cases have been registered, 51 arrests being made out of whom 49 are still in jail in a month. In fact, the cases were registered on the same day when ordinance was passed. An array of cases so far can be accessed here.
ALLAHABAD HIGH COURT: A SAVIOUR
A case was registered against a man in Muzaffarnagar under the said law, and the Court had stayed proceedings against him. The bench headed by Justices Pankaj Naqvi and Vivek Agarwal observed that, “Article 25 provides that all persons are equally entitled to freedom of conscience and the right freely to profess, practice and propagate religion, subject to public order, morality and health and to other provisions of Part III of the Constitution. They are both adults and have a fundamental right to privacy.”
From quashing down proceedings to granting protection to interfaith couples. The Court reunited a 21 year old hindu woman with her muslim husband upholding that the woman can live on her own terms and no right to interfere exists. The Court also granted protection to another interfaith couple when they had moved a writ petition on December 16th, 2020. Justice Saral Srivastava observed that, “nobody has the right to interfere with the peaceful life of the adults.”
The remarkable work done by the Court in protecting fundamental rights cannot be appreciated more when on 25th January, 2021 the apex Court refused to transfer pleas from Allahabad High Court challenging the ordinance to the Supreme Court.
The law saw great injustice towards the people where human rights find no place. In a case where a woman’s husband was arrested under the said law, who is two months pregnant can suffer from miscarriage due to stress over her husband’s arrest without any fault of the couple. How can such forcible intervention into the private life of adults be said as legal? The law clearly takes away the right to choice under Article 21 where adults do not have a right to choose their partner. Such laws find no place in a secular society and are a grave violation of human rights. From farmers' protest to the POCSO Judgment by the Bombay High Court decoding a new principle to skin-to-skin contact, it’s frightening that soon human rights and democracy will seem to be things of lost past. After the UP government, the Madhya Pradesh government passed the Madhya Pradesh Dharma Swatantrya Adhyadesh 2020 (MP Freedom of Religion Ordinance 2020) on January 9, 2021. The upcoming challenges await with coming into effect of such draconian legislation.
 WRIT - C No. - 14288 of 2020  Salamat Ansari and others v. State of UP and others, Crl. Mis. Writ Petition No. 11367 of 2020  (2018) 16 SCC 368  (2018) 10 SCC 1  (2006) 5 SCC 475  Habeas Corpus No. - 16907 of 2020  1952 SCR 284  (2019) 11 SCC 1  Muslim Teenager in UP Arrested Under 'Love Jihad' Law for Walking With a Hindu Friend (thewire.in)  UP ‘love jihad’ law: Allahabad High Court stays action against Muzaffarnagar man, cites ‘right to privacy’ (msn.com)  Allahabad HC Reunites Interfaith Couple, Says Woman Can 'Live Her Life on Her Own Terms' (thewire.in)  ‘Won’t Stop HC’: SC Refuses to Transfer All ‘Love Jihad’ Law Pleas (thequint.com)