Anti-Conversion Laws Day #1: Bench Orders Parties to File Transfer Petitions Within 2 Weeks

Constitutionality of Anti Conversion Laws

Judges: D.Y. Chandrachud CJI, P.S. Narasimha J, J.B. Pardiwala J

Today, a 3-Judge Bench led by Chief Justice D. Y. Chandrachud heard the challenges to anti-conversion laws enacted in several states. The Bench said that if the parties intend to file Transfer Petitions to club all the cases pending before various High Courts on the matter, they must do so in 2 weeks. 

The Bench also heard a case called ‘Re Issue of Religious Conversion’ filed by BJP Leader Mr. Ashwini Upadhyay which was earlier heard by  a 2-Judge Bench led by Justice M. R. Shah. This petition seeks steps against forceful and deceitful religious conversions

Background

The States of Uttarakhand and Uttar Pradesh enacted laws, in 2018 and 2020 respectively, that punished unlawful religious conversion for the purpose of marriage. They also imposed a clause which mandated that a person must declare their intention to convert at least a month in advance.

In December 2020, the Citizens for Justice and Peace (CJP), a Mumbai-based NGO, filed a Writ Petition at the Supreme Court challenging the constitutional validity of the laws. CJP, in the petition, they stated that the laws were enacted as a result of a ‘baseless rhetoric’ known as ‘love-jihad’. They argued that the provisions violate the rights to personal liberty, freedom of choice, privacy and conscience as they intentionally prevent inter-faith marriages. 

The States of Himachal Pradesh and Madhya Pradesh also enacted similar laws in 2019 and 2020 respectively. In February 2021, the CJP filed an application to challenge these enactments as well. The Bench led by CJI Bobde allowed the application. 

While these petitions were pending, the States of Gujarat (2021), Haryana (2022) and Karnataka(2022)  enacted their own anti-conversion laws. However, on August 19th, 2021 the Gujarat High Court put a stay on several sections of the Gujarat Freedom of Religion (Amendment) Act. On November 14th, 2022, the Madhya Pradesh High Court struck down the declaration requirement in the Madhya Pradesh Freedom of Religion Act. The State of Gujarat and Madhya Pradesh appealed these decisions at the Supreme Court. A petition challenging the Karnataka Protection of Right to Freedom of Religion Ordinance, 2022 is pending in the Karnataka High Court. 

Meanwhile, BJP Leader and Advocate Mr. Ashwini Kumar Upadhyay filed a PIL of his own in December 2022 seeking steps against forceful and deceitful religious conversions. He alleged that fraudulent and deceitful religious conversion was rampant across the country, and that the Central government has failed to control it. This petition was earlier heard by a 2-Judge Bench led by Justice M. R. Shah was supposed to be heard next in February 2023. However, it was listed along with the other petitions challenging the anti-conversion laws on  January 16th, 2013 and was heard by the 3-Judge Bench led by the CJI. 

Union Argues Against Transferring Pending Cases to the SC

CJI Chandrachud, making sense of a chaotic hearing, listed out all the different kinds of petitions pending on the matter before different courts. Senior Advocate Kapil Sibal, representing the State of Gujarat, stated that they would file a petition to transfer all the pending cases before various High Courts to the SC so they may be decided together.

Attorney General R Venkataramani, representing the Union government, suggested that the petitions pending before the High Courts remain there. However, parties challenging the law resoundingly disagreed, stating that all the petitions concerned similar laws and must be heard by the SC. 

The Bench gave the parties 2 weeks to file the transfer petitions. The CJI clarified that the Bench was not immediately accepting the transfer petitions, they were merely providing a timeline for filing the petitions. 

The Bench reminded Sr. Adv. Arvind Datar, representing Adv. Ashwini Kumar Upadhyay, to remove certain parts of his petition which were offensive to the Muslim and Christian communities. Further,  Sr. Adv. P Wilson alerted the Bench that similar petitions were filed and withdrawn by Mr. Upadhyay at the SC and the Delhi High Court in the past.  The Bench commented that the petitioner cannot keep filing and withdrawing petitions on the same matter before different courts. 

The Bench will hear all these matters next on  January 30th, 2023.