M Shivaraju and another vs The State of Karnataka and another. Writ Petition 10216 OF 2020 (LB-BMP) PIL C/W Writ Petition 11077 OF 2020 (LB-BMP) PIL and Writ Petition 1892 OF 2020 (LB-BMP) PIL decided on 4 December 2020.
ORDER(i) We direct the State Government to publish the final notification of reservations as per clause (c) of sub-section (1) of Section 21 of the said Act of 1976 for 198 Wards as per the delimitation notification dated 23rd June, 2020. We grant time of one month from today to publish the final notification, though, as per the assurance given by the Government, as recorded in the order dated 22nd September 2020, the same was to be published within two weeks from 22nd September 2020;
(ii) We direct the State Election Commission to hold election of BBMP as expeditiously as possible by publishing the election programme within a maximum period of six weeks from the date on which final reservation Notification is published;
(iii) We make it clear that elections shall be held for 198 Wards as per the notification of delimitation of Wards already published on 23rd June, 2020;
(iv) The petitions are allowed on the above terms with no orders as to the costs.
Eight seventy five benches, taken up cases 2,31,365, disposed cases 1,15,938, settlement amount Rs. 357,71,94,758 – all this in a single day via video conferencing. This is the success story of Mega Lok Adalat held on 19 September 2020.
The Legal Services Authorities Act, 1987, is aimed to provide free and competent Legal Services to the weaker sections of the society to ensure that opportunities for securing justice are not denied to any citizen by reason of economic or other disabilities and to organize Lok Adalats to secure that the operation of the legal system promotes justice on a basis equal opportunity; to promote an inclusive legal system in order to ensure fair and meaningful justice to the marginalized and disadvantaged sector; creating legal awareness, legal aid and settlement of disputes through amicable settlement are the main functions of the Authority.
The physical Lok-Adalat was held on 8 February 2020. The total number of benches were 906. Taken up cases 1,86,980. Disposed cases 70,822 and settlement amount was Rs. 256,25,06,636.
However, the real challenge was to arrange a Lok Adalat with equal magnitude during Covid-19 scenario. Hundreds of Judicial Officers, court staff, learned Advocates and Honorable Judges of Karnataka High Court took up the task of holding the Lok Adalat via video conferencing.
The statistics show E-Lok Adalat achieved better results. This is not to in anyway undermine earlier achievements.
Technology coupled with strong determination to achieve speedy justice has made KSLSA’s ‘Success Story of 2020’.
The next Mega E-Lok Adalast is scheduled to be held on 19 December 2020. Details of the event will be shared soon.
Legal awareness programmes are taken up for empowerment of legal knowledge to all the citizens in general and to the weaker sections of the society in particular. Various activities are taken up to reach the vulnerable sections of the society such as SC/ST, Women, Industrial Labourers etc.
The Authority provides legal aid by way of providing the services of able efficient services of Lawyers. Any person, who fulfills the criteria, is entitled for the legal Aid.
Lok Adalats organized by the Authorities and the Taluk Committees help the disputing parties to come to settlement through conciliation and such settlement reached before a Lok Adalat becomes a record having equal status as that of a judgment/decree of the Court.
Karnataka State Legal Services Authority is a Statutory Body constituted under a Central Legislation “Legal Services Authorities Act, 1987”. Hon’ble the Chief Justice of Supreme Court of India is the Patron-in-Chief of National Legal Services Authority. Sr. Judge of the Supreme Court of India is the Executive Chairman of the National Legal Services Authority. Hon’ble the Chief Justice of High Court of Karnataka is the Patron-in-Chief of Karnataka State Legal Services Authority, Bangalore. Sr. Judge of High Court of Karnataka is the Executive Chairman of Karnataka State Legal Services Authority.
The Chief Justice of India is the Patron-in-Chief of National Legal Services Authority. The Chief Justice, High Court of Karnataka, is the Patron-in-Chief of Karnataka State Legal Services Authority, Bengaluru and Senior most Judge, High Court of Karnataka, is the Executive Chairman of Karnataka State Legal Services Authority, Bengaluru. State Legal Services Authority is working through the Member Secretary and monitoring and guiding the District Legal Services Authorities and Taluka Legal Services Committees in the State in achieving the aims and objectives of the Act. There are 30 District Legal Services Authorities in the State of Karnataka. 150 Taluka Legal Services Committees are functioning under District Legal Services Authorities in the State. District Legal Services Authority is headed by Principal District & Sessions Judge as Chairman, Sr. Civil Judge cadre Officer or Principal CJM of the District as the Member Secretary. Taluka Legal Services Committees are headed by the jurisdictional Principal Senior Civil Judge as Chairman and the Principal Civil Judge as the Member Secretary. There are three High Court Legal Services Committees i.e., at Bengaluru, Dharwad and Kalaburagi which are chaired by the sitting Judge of the High Court of Karnataka. Hon’ble Mr. Justice L. Narayana Swamy, Judge, High Court of Karnataka is the Chairman of High Court Legal Services Committee, Bengaluru. The general public who need any legal help / legal aid may contact the concerned Taluka Legal Services Committee / District Legal Services Authority, High Court Legal Services Committees or Karnataka State Legal Services Authority, as the case may be.
Relevant paragraphs: 5. On the basis of the submissions made by Sri.Mrutyunjay Tata Bangi, learned counsel for the petitioner, the questions which would arise for determination are:(1) Whether the Plaintiff is free to value the Suit in any manner it deems fit and just, by making payment of the court fee could such a plaintiff change the jurisdiction of the Court? (2) Whether in a suit for specific performance, it is only the value of the property shown in the said agreement that would have to be considered for the purpose of jurisdiction or would any other item like cost of issuance of legal notice be included so as to increase the valuation. (3) What would be the role of the Court in the event of an artificial increase in the valuation altering the jurisdiction of the Court?
Provisions of Order VII Rule 10 & 10A, 10B, Civil Procedure Code, Section 40 and 50 of the Karnataka Court Fees and Suits Valuation Act are noticed.
9.5 ….a party cannot by artificially inflating the valuation or undervaluing the Suit be allowed to file a particular suit before a Court which would in the absence of such incorrect valuation not have any jurisdiction to try the matter. Merely because the Plaintiff is willing to pay higher court fee by inflating the valuation, he cannot be permitted to do so since the hierarchy of the Court dictates that particular Suit with particular valuation would have to be filed and tried by a particular Court, thus, giving rise to a vested right to the defendant that the Suit of particular nature of particular valuation would be tried by that particular Court only and not by any other Court.
Paragraphs 10.2, 10.3, 10.4 & 10.5 … where the Suit is for a specific performance of contract of sale, the fee shall be computed on the amount of consideration. In the present case, apart from the valuation made as regards the consideration under the agreement of sale, the Plaintiff has added another item, namely the cost of issuance of legal notice to totally value the Suit at Rs.5,01,000/-. It is only by the addition of the relief, in this instance, towards legal notice, namely Rs.1,000/- that the valuation came to be increased in such a manner that the jurisdiction of the Court itself came to be changed. This in my considered opinion is not permissible.
Paragraphs 11.1 & 11.2 The Court would have to carefully examine the mode and methodology of the valuation made by the Plaintiff, more particularly when such a valuation would have the impact of altering the jurisdiction of the Court. The court cannot merely on the basis of the of the Plaintiff being willing to make payment of the court fee permit such a plaintiff to value the Suit at his whims and fancies and make payment of the stamp duty on that basis. The Court while dealing with the same and more so on an application under Order VII Rule 10 of the CPC would have to determine the valuation. The Court would also have to separate the main relief from the ancillary relief in order to ascertain the valuation for the purpose of jurisdiction and that for payment of court fee separately and come to a finding that it is competent to take up the matter and that the Suit has been filed in a proper and competent court.
Relevant paragraphs: 8. The learned counsel for the petitioner next contends that because the challenge is not just to the sale deed but also to the power of attorney executed by the first respondent, it would tantamount seeking cancellation of the power of attorney as well as the sale deed and therefore the suit should be valued under Section 38 of the KCF & SV Act as per the consideration for which the sale deed is executed.
9. The learned counsel for the petitioner elaborates canvassing that the Hon’ble Supreme Court in Satheedevi Vs. Prasanna and Another 2010 AIR SCW 3754 has held that the expression “value of the subject matter of the suit” as found in the provisions of Section 40 of the Kerala Court- Fees and Suits Valuation Act, 1959 (which is pari materia with Section 38 of the KCF & SV Act) should be understood as the ‘value for which the document is executed’. As such, the expression ‘market value’ as found in Section 7(2) of the KCF & SV Act should also, wherever the provisions of Section 38 thereof apply, should be read as “value for which the document is executed” as interpreted by the Hon’ble Supreme Court in the context of Kerala Court-Fees and Suits Valuation Act.
11. The entire controversy as regards the valuation of the suit and the payment of proper court fee will have to be examined from the perspective of the nature of the subject property which is in lis between the petitioner and the respondents.
12.The provisions of Section 7 of the KCF & SV Act stipulate that where the fee payable under this Act depends on the ‘market value’ of any property, such value shall be determined as on the date of presentation of the suit; and insofar as the land which forms part of the estate paying permanently settled annual revenue to the Government, the market value of the land for the different suits mentioned therein shall be twenty-five times the revenue payable. This different mode of determining the market value insofar as the agricultural land under Section 7 of the KCF & SV Act is applicable not only to the reliefs that will have to be valued under Section 24 and other provisions of the KCF & SV Act but also under Section 38 of the KCF & SV Act.
14…..the case on hand before this Court could be distinguished insofar as the applicability of the enunciation by the Hon’ble Supreme Court in the aforesaid decision inasmuch as the significance of a separate mode for valuation in cases of lands which are assessed to annual revenue as provided under Section 7 of the KCF & SV Act was not a subject matter for decision by the Hon’ble Supreme Court.
15. The subject matter in this case is admittedly an agricultural land. The provisions of Section 7(2) of the KCF & SV Act provide for a separate mode for valuation for different suits insofar as agricultural lands which are assessed for annual revenue. This modes applies to even a suit for cancellation as is obvious from the provisions of Section 7 (2) of the KCF & SV Act of sale deed; and the interpretation the expression market value as found in Section 7 of the KCF & SV Act should be read as the valuation for which a document is executed will amount to rendering the provisions of Section 7(2) of the KCF & SV Act, and therefore the entire scheme thereunder, otiose. This would be against the settled canon that an interpretation which renders a statutory provision otiose should be avoided while interpreting a provision of the statute.
Relevant Paragraphs: 11. Now so far as the submission on behalf of the private appellants violators that in view of the fact that violators were penalty determined by the appropriate authority for compounding the offences/violations, there cannot be any further criminal proceedings for the offences under Sections 379 and 414 IPC and Sections 4/21 of the MMDR Act and the reliance placed on Section 23A of the MMDR Act is concerned, it is true that in the present case the appropriate authority determined the penalty under Rule 53 of the 1996 Rules/Rule 18 of the 2006 Rules, which the private appellants violators paid and therefore the bar contained in subsection 2 of Section 23A of the MMDR Act will be attracted. Section 23A as it stands today has been brought on the Statute in the year 1972 on the recommendations of the Mineral Advisory Board which provides that any offence punishable under the MMDR Act or any rule made thereunder may, either before or after the institution of the prosecution, be compounded by the person authorised under section 22 to make a complaint to the court with respect to that offence, on payment to that person, for credit to the Government, of such sum as that person may specify. Subsection 2 of Section 23A further provides that where an offence is compounded under subsection (1), no proceeding or further proceeding, as the case may be, shall be taken against the permitted to compound the violation in exercise of powers under Rule 53 of the 1996 Rules or Rule 18 of the 2006 Rules and the violators accepted the decision and deposited the amount of penalty determined by the appropriate authority for compounding the offences/violations, there cannot be any further criminal proceedings for the offences under Sections 379 and 414 IPC and Sections 4/21 of the MMDR Act and the reliance placed on Section 23A of the MMDR Act is concerned, it is true that in the present case the appropriate authority determined the penalty under Rule 53 of the 1996 Rules/Rule 18 of the 2006 Rules, which the private appellantsviolators paid and therefore the bar contained in subsection 2 of Section 23A of the MMDR Act will be attracted.
However, our above conclusions are considering the provisions of Section 23A of the MMDR Act, as it stands today. It might be true that by permitting the violators to compound the offences under the MMDR Act or the rules made thereunder, the State may get the revenue and the same shall be on the principle of person who causes the damage shall have to compensate the damage and shall have to pay the penalty like the principle of polluters to pay in case of damage to the environment. However, in view of the large scale damages being caused to the nature and as observed and held by this Court in the case of Sanjay (supra), the policy and object of MMDR Act and Rules are the result of an increasing awareness of the compelling need to restore the serious ecological imbalance and to stop the damages being caused to the nature and considering the observations made by this Court in the aforesaid decision, reproduced hereinabove, and when the violations like this are increasing and the serious damage is caused to the nature and the earth and it also affects the ground water levels etc. and it causes severe damage as observed by this Court in the case of Sanjay (supra), reproduced hereinabove, we are of the opinion that the violators cannot be permitted to go scot free on payment of penalty only. There must be some stringent provisions which may have deterrent effect so that the violators may think twice before committing such offences and before causing damage to the earth and the nature.
It is the duty cast upon the State to restore the ecological imbalance and to stop damages being caused to the nature. As observed by this Court in the case of Sanjay (supra), excessive instream sand and gravel mining from river beds and like resources causes the degradation of rivers. It is further observed that apart from threatening bridges, sand mining transforms the riverbeds into large and deep pits, as a result, the groundwater table drops leaving the drinking water wells on the embankments of these rivers dry. Even otherwise, sand/mines is a public property and the State is the custodian of the said public property and therefore the State should be more sensitive to protect the environment and ecological balance and to protect the public property the State should always be in favour of taking very stern action against the violators who are creating serious ecological imbalance and causing damages to the nature in any form. As the provisions of Section 23A are not under challenge and Section 23A of the MMDR Act so long as it stands, we leave the matter there and leave it to the wisdom of the legislatures and the concerned States.
Compiled by S. Basavaraj, Advocate, Daksha Legal, Bengaluru
Relevant paragraphs: 11.Be that as it may. Even as could be seen from Section 36(A)(4) proviso indicates that if any person has been charged for the offence under the said Act for the purpose of filing of the charge sheet is 180 days time has been provided. Proviso to the said Section enables the Investigating Agency, if within 180 days if it is not possible to complete the investigation, then it can move the application before the Special Court for extension of the said period up to one year. But in order to file an application it has to fulfill two conditions. The first condition is that the prosecution has to indicate the progress of the investigation made till that date and the second condition is the specific reason for detention of the accused beyond the said period of 180 days. But on perusal of the application filed by the learned Public Prosecutor, no such reasons have been assigned except stating that, for the purpose of filing of the charge sheet, FSL report is an important document and when the charge sheet cannot filed and the FSL report has also not come, as such 180 days has to be extended.
12. Be that as it may. Even as could be seen from the records, the said application has been filed on 4.9.2020 and immediately thereafter the Court has issued the notice to the accused for his reply and the order sheet indicates that he has filed his objections to the said application on 9.9.2020 and even at that time also no order has been passed by the trial Court either extending the time or giving any reasons on the application filed under Section 167(2) of Cr.P.C. When the time of 180 days is going to be expired on 6.9.2020, before that or on the same day, the Court could have passed an order either extending of time or otherwise. When an application has been filed for the purpose of extension of time on 4.9.2020 and the accused was admittedly in judicial custody, the trial Court ought to have taken into consideration the statutory right available to the accused and it could have been expedited on or before 6.9.2020. When the Court has not exercised its power on the application filed under Section 36(A)(4) of NDPS Act for extension, then the statutory right which has been there to the accused accrues immediately after 180 days and if an application has been filed by the accused and if it is pending, then the right will be there to get him released on bail.
Relevant Paragraphs: 25. Therefore, as per Section 64VB of the Act above stated, the provision is very clear that soon after the receipt of the payment of premium by the owner and received by the Insurance Company then the contract of insurance begins between them. Issuance of policy is consequent effect after receipt of premium. If there is a specific contract is made between the insurer and the insured that the risk is to be covered from that point of time itself is concerned, then that shall be specifically stated in the Insurance Policy and it is a specific contract between the insurer and insured so far as time of commencement of risk. If there is no specific contract stating to cover the risk from that particular point of time then generally in the Insurance Policy it is stated that the Insurance Policy commences from 00.00 hours by mentioning the next day date commencing from 00.00 hours (mid night) on next date. Therefore, where there is no specific contract of mentioning time between insurer and insured regarding mentioning of time so as to cover the risk then generally the policy commences from 00.00 hours (mid night) by mentioning the date of the next day. In absence of mentioning specific time of commencement of covering risk, therefore upon considering this and applying the same in the present facts and circumstances and by following the legal provision enshrined under Section 64VB of the Act it can be safely held that from the time of making payment of premium itself covering risk starts.
Cases referred: Yellamma vs. Bhy Sukhadev Singh and another [2006 (3) KCCR 1842], Oriental Insurance Co.Ltd., v. Dharam Chand and others [2011 Kant, M.A.C.138 (SC)], National Insurance Co.Ltd., v. Smt.Bhadramma and others [ILR 2009 KAR 3332], Sunita Rati’s case [AIR 1998 SC 257], New India Insurance Company v. Bhagwati Devi and others [(1998) 6 Supreme Court Cases 534], National Insurance Co. Ltd. v. Jikubkai Nathuji Dabhi, [(1997) 1 SCC 66], National Insurance Co.Ltd., v. Sobina Iakai and others [2007 (3) T.A.C. 19 (S.C)], New India Assurance Co.Ltd., v. Harshadbhai Amrutbhai Modhiya and another [(2006) 5 Supreme Court Cases 192], New India Assurance Co.Ltd., vs. C.M.Jaya and others [AIR 2002 SC 651]
Much ado about conversion for marriage – a take on the (un)constitutionality of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020
There has been some debate on the promulgation of the Uttar Pradesh Prohibition of Unlawful Conversion of Religion Ordinance 2020 (‘UP Ordinance’) calling it the Love Jihad Act. Some have called it ‘an assault on personal liberty’[1] claiming it places unreasonable restrictions on the right to marriage by questioning conversion for the purposes of marriage and is violative of the right to privacy. Some have argued that it ‘puts the personal dignity and freedom of choice at a backseat’.[2] There is also a comparison of the law to Nazi Germany’s Reich Citizenship laws.[3] These are very serious allegations and it would appear that the law is ex facie unconstitutional. I propose to examine if it is really the case.
Scheme of the UP Ordinance
Let us first examine the heading of the Act and the intention as seen from the preamble of the Ordinance. A plain perusal would indicate that the focus is on anti-conversion and not on prohibition of inter-religious marriages. Let us now examine the provisions of the UP Ordinance.Section 3 prohibits conversion from one religion to another religion by misrepresentation, force, fraud, undue influence, coercion, allurement or marriage. The definition of ‘allurement’, ‘coercion’, ‘force’, ‘fraudulent means’, ‘undue influence’ and ‘unlawful conversion’ are found in Section 2 which deals with definitions.
Section 4 allows any relative who is related by blood, marriage or adoption or any aggrieved person to lodge an FIR if there is violation of Section 3.
Section 5 provides for punishment for contravention of Section 3 which is imprisonment of minimum of 1 year and up to 5 years. But if it is a minor or a woman or a scheduled caste or schedule tribe person, then the minimum imprisonment is 2 years and extends up to ten years. It provides for compensation for such a victim of conversion which may extend to rupees five lakh in addition to any fine.
Section 6 provides that any marriage which was done for the sole purpose of conversion or vice versa shall be declared void by a Family Court at the instance of the applying spouse.
Section 7 makes the offences under the Ordinance to be cognizable and non-bailable.
Section 8 provides for the procedure prior to conversion and to apply for conversion and states that any person who wishes to convert must give a declaration in the prescribed format at least 60 days in advance to the District Magistrate that the conversion is with free consent and without any force, coercion, undue influence or allurement. The religious converter shall also give one month’s notice in the prescribed format before performing such conversion ceremony. The District Magistrate shall get an inquiry conducted through the police to ascertain the real intention, purpose and cause of the proposed religious conversion. Contravention of this provision entails imprisonment as prescribed.
Section 9 provides for declaration post conversion of religion in the prescribed format to be submitted to the District Magistrate who shall exhibit it which shall provide details of the conversion and the converted individual shall appear in person before the District Magistrate within 21 days of sending the declaration to confirm the contents therein. If the provisions of Section 9 are not fulfilled, the conversion is rendered null and void.
Section 10 provides for punishment for institutions or organizations
Section 11 states that the parties to the offence will be every person who has either done the act of conversion, aided or abetted it, counsel or convince or procures any person.
Section 12 places the burden of proof on the person who has caused the conversion to prove that it was with free consent.
The UP Ordinance provides for a legal mode for recording of any conversion from one religion to another. Sixty days prior to conversion, a notice is required to be given under Section 8 and the District Magistrate will carry out an inquiry to verify that the conversion is truly out of free will. After conversion, the converted person will send a declaration to the District Magistrate and thereafter personally appear to satisfy the District Magistrate that the conversion is valid and proper in terms of Section 9. If the procedure under Section 8 and Section 9 are not followed prior to conversion, then the burden of proof is on the converted person and all other such persons connected with the conversion to show that the conversion was out of free will. If a conversion or attempt at conversion is by use or practice of misrepresentation, fraud, undue influence or by any fraudulent means or by marriage, then it is prohibited under Section 3 and punishable under Section 5.
Comparison with other anti-conversion laws:
The provisions of the UP Ordinance are pari-materia to other anti-conversion laws which are either in force or at some point in time were in force. For ease of convenience, I have charted out the key provisions of these laws which are prevailing in various states.
Pertinent Details of Acts
M.P.
ChhattisgarhC.G.
OdishaO.D.
GujaratG.J
Himachal PradeshH.P.
UttarakhandU.K.
JharkhandJ.K
Arunachal PradeshA.P.
Tamil NaduT.N.
RajasthanR.J
Uttar PradeshU.P.
Prohibition on Conversion
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Yes
Pre-Conversion Declaration
No
No
Yes
Yes
Yes
Yes
Yes
Yes; To Deputy Commissioner of District
No
No
Yes
Post-Conversion Declaration
No
No
No
Yes
Yes
Yes
Yes
No
No
No
Yes
Inquiry by Magistrate to examine Bonafides of Conversion
No
No
Yes
No
Yes
Yes
Yes
No
No
No
Yes
The converted / associated persons bear the Burden of Proof
–
–
–
–
Yes;
Yes;
–
–
–
–
Yes;
From the above, it is seen that the provisions are more or less similar to other enactments. It may be interesting to note that these provisions have been challenged before Courts and upheld by the Courts. I have prepared a table which will give one a bird’s eye view of such challenges and the current state of the law.
State/Act
Challenge to Act (& Brief Status)
Orissa Freedom of Religion Act, 1967 Act & Rules notified
Orissa HC – Rev. Satya Ranjan Majhi and Ors vs. State of Orissa & Ors. – Upheld the constitutionality of statute and dismissed W.P. Supreme Court – Satya Ranjan Majhi vs. State of Orissa & Ors. – SC – Upheld the validity of HC judgment and dismissed SLP. Orissa HC – Yulitha Hyde and Ors. vs. State of Orissa & Ors. – Has been overruled by SC in Rev. Stainislaus
M.P. Dharma Swatantraya Adhiniyam, 1968 (Chhattisgarh Dharma Swantantraya Adhiniyam, 1968 – Same as MP Act since Chhatisgarh had not been carved out) Act & Rules notified
Supreme Court – Rev. Stainislaus vs. State of Madhya Pradesh & Ors. – The Supreme Court upheld the constitutionality of the said Act and dismissed the Civil Appeals.
Gujarat Freedom of Religion Act 2003 Act & Rules notified
Gujarat HC – Challenge vide SCA No 1582 of 2009 – Rev. Stanislaus Fernandes, Archbishop of Gandhinagar & Ors. vs. State of Gujarat & Anr. – Petition has been dismissed as withdrawn
Himachal Pradesh Freedom of Religion Act, 2006 (Repealed) Replaced by the Himachal Pradesh Freedom of Religion Act, 2019 Act & Rules notified
Himachal Pradesh HC – Evangelical Fellowship of India vs. State of Himachal Pradesh – 2006 Act held valid but Petitions allowed to a limited extent Supreme Court – Matter disposed for not complying conditional order of curing of defects
Uttarakhand Freedom of Religion Act, 2018 Act & Rules notified
No challenge as of now
Jharkhand Freedom of Religion Act, 2017 Act & Rules Notified
– No challenge as of now
Arunachal Pradesh Freedom of Religion Act, 1978 Act Notified; No Rules
– No challenge as of now
Tamil Nadu Prohibition of Forcible Conversion of Religion Act, 2002 Brought in as Ordinance; Act repealed
Revocation of Act by the Government due to widespread protests.
Rajasthan Freedom of Religion Bill, 2006 Pending President’s Assent
– No challenge as of now
Uttar Pradesh Prohibition of Unlawful Religious Conversion Ordinance, 2020 Brought in as Ordinance
– No challenge as of now
Constitutional validity of anti-conversion laws
With this background, let us examine the legal validity of the anti-conversion laws. The fundamental challenge to all anti-conversion laws has been on the ground of Article 25 (1) of the Constitution apart from legislative competence of States. The argument is that by imposing restrictions on conversion including an inquiry on whether the conversion is valid, going into the issue of whether the conversion is based on free will etc would violate Article 25 (1) of the Constitution. For ease of reference, Article 25 (1) is extracted hereinbelow.
“(1) Subject to public order, morality and health and to the other provisions of this Part, all persons are equally entitled to freedom of conscience and the right to freely to profess, practice and propagate religion.”
The Madhya Pradesh and Orissa anti-conversion laws were challenged before the Supreme Court and the Constitution Bench in Rev. Stainislaus vs. State of Madhya Pradesh[4] upheld the same as not violative of Article 25. The Supreme Court held that right to ‘propagate’ does not include the right to ‘convert’ but to transmit or spread one’s religion by an exposition of its tenets. Therefore, there is no fundamental right to ‘convert’.
While interpreting the word ‘propagate’, the Supreme Court held that if a legislation is framed to ensure that there is no forcible conversion, the same would be in furtherance of Article 25 by holding as under:
“We have no doubt that it is in this sense that the word ‘propagate’ has been used in Article 25 (1), for what the Article grants is not the right to convert another person to one’s own religion, but to transmit or spread one’s religion by exposition of its tenets. It has to be remembered that Article 25 (1) guarantees ‘freedom of conscience’ to every citizen, and not merely to the followers one particular religion, and that, in turn, postulates that there is not fundamental right to convert another person as one’s own religion because if a person purposely undertakes the conversion of another person to his religion, as distinguished from his effort to transmit or spread the tenets of his religion, that would impinge on the ‘freedom of conscience’ guaranteed to all citizens of the country alike.”
Another aspect on which the Supreme Court upheld the validity was that while one has the freedom to convert another person, it can be restricted by public order. It held “if an attempt is made to raise communal passions on the ground that someone has been forcibly converted to another religion, it would give rise to an apprehension of breach of public order. Hence, the restriction imposed on conversion by seeking that the same be recorded by way of a declaration before a Magistrate would not fall foul of Article 25.” If one applies this principle, the requirement under the UP Ordinance for recording of the declaration of conversion and inquiry by the Magistrate to ensure that the conversion is free would not fall foul of the Constitution.
This judgment has held the field since then and followed and applied by High Courts across the country. The Division Bench of the Himachal Pradesh High Court examined the constitutionality of the HP Act in Evangelical Fellowship of India vs. State of Himachal Pradesh[5] and upheld the same to the extent that it was covered by the Rev. Stainislaus. The Himachal Pradesh High Court examined the definitions of ‘force’, ‘fraud’ and ‘inducement’ which was argued to be vague and capable of misuse which the Court held was not a legal basis to nullify the enactment. It may be noted that the definitions are almost pari-materia to the UP Ordinance.
There were some rules which were not found in the earlier version of the MP and Orissa laws such as notice before conversion by the convertee, inquiry and registration of case and sanction for prosecution. The Himachal Act sought for notice before conversion and power to inquire into the conversion in the event of any complaint. The argument of privacy was examined as to whether it would be appropriate for such restrictions to be put in place.
The High Court held that a person cannot be asked to disclose his religion and it cannot be ruled out that a person who is changing his religion may face harassment by giving such notice and that such a notice may lead to communal clashes. Holding an inquiry to examine if a conversion is proper or not may be violative of privacy of that individual. Hence only those provisions were held to be unconstitutional.
It may be noted that these provisions are also pari-materia to the UP Ordinance. Therefore, it will be possible to argue that those provisions are unconstitutional applying the dicta of the Himachal High Court. It will be necessary to note that although the judgment was challenged before the Supreme Court, the SLP was dismissed for non-curing of the defects by way of a general procedural order along with several other petitions and cannot be considered as confirmed by the Supreme Court.[6]
Here, it may be necessary to examine a subsequent judgment of the Orissa High Court in Rev. Satya Ranjan Majhi vs. State of Orissa[7], wherein certain amendments of 1999 to the Orissa Rules which provided for an inquiry, declaration before conversion were also challenged saying that it was in excess of the judgment of the Supreme Court in Rev. Stainislaus. The same was dismissed by the Orissa High Court and taken on appeal to the Supreme Court in Satya Ranjan Majhi vs. State of Orissa[8] . The Supreme Court upheld the provisions and dismissed the SLP by a speaking order. Therefore, the judgment of the Supreme Court would apply in the present situation and the UP Ordinance will stand the test of constitutionality on that ground.
By the above analysis, it is clear that the general provisions relating to seeking registration of conversion, prescribing punishment for conversion which is not based on free-will would stand constitutional scrutiny. The only question that remains is the addition of conversion for the purpose of marriage to the law would stand the test or not.
Let us understand as to how typically these inter-religious marriages are functioning at the present and the problems faced therein and how the UP Ordinance can potentially resolve such issues:Lack of sufficient evidence of such conversion: If one of the spouses fails to fully comply with the religious requirements for conversion or if the conversion is not properly recorded or if one of the spouse does not have any record and the sanctity of the marriage is questioned (ostensibly because the other records of the converting spouse will show his / her previous religion). If the procedure under Section 8 and 9 of the UP Ordinance are followed, then it creates evidence of such conversion which cannot later on be disputed by any party.
Legality of the marriage is questioned: Although it is possible to argue live-in relationship for the purpose of maintenance in the event of desertion by the other spouse, a lengthy and protracted trial will be the consequence as these marriages are not registered and often the converter will not get the election ID card or other identity cards changed to her / his new name. So, there is a possibility that the marriage itself will be disputed which will result in protracted litigation. If the conversion is for the purpose of marriage and later on if someone wants to nullify the marriage, it gives such a party additional ground to question to marriage. The corollary being that such a declaration of conversion will also estop the converter to renege from such marriages.
Inheritance issues: There is also a possibility that succession to spousal property or the grant of legitimacy to the children born out of such inter-religious marriage is disputed and without sufficient proof of conversion, one will get entangled in protracted litigation. Once a person converts to the religion of choice, the benefits of the said religion will automatically follow and cannot be take away.
Criminal cases being foisted upon the converter and relatives: Typically cases of kidnapping, coercion, rape and other provisions are foisted on the husband in the event the converter is a girl. By the time the criminal cases are resolved in courts of law, the entire family and the marriage is put under strain. This arises because there are no records that the conversion has been out of free will. If there is compliance under the UP Ordinance and if the spouse comes and makes a statement in Court that she has chosen to marry out of her own free will and without coercion, the criminal cases will automatically fall as was done in the Hadiya case.
Misuse of conversion for the purpose of marriage: As highlighted in Lily Thomas vs. Union of India, some Hindus often convert to Islam merely to sustain bigamous relationships. A proper inquiry as contemplated under the UP Ordinance will ensure that the process of conversion is not misused.
The next question to address is if someone intends to convert for the purpose of marriage, how is it wrong. I will go no further than to cite from the Hon’ble Supreme Court in Lily Thomas vs. Union of India[9]to make my point:
“Religion is a matter of faith stemming from the depth of the heart and mind. Religion is a belief which binds the spiritual nature of man to a supernatural being; it is an object of conscientious devotion, faith and pietism. Devotion in its fullest sense is a consecration and denotes an act of worship. Faith in the strict senses constitutes firm reliance on the truth of religious doctrines in every system of religion. Religion, faith or devotion are not easily interchangeable. If the person feigns to have adopted another religion just for some worldly gain or benefit, it would be religious bigotry. Looked at from this angle, a person who mockingly adopts another religion were plurality of marriage is permitted so as to renounce the previous marriage and desert the wife, cannot be permitted to take advantage of his exploitation as religion is not a commodity to be exploited. The institution of marriage under every personal law is a sacred institution”
Is it seriously violative of freedom of choice of religion to examine that the choice has been exercised freely? The Supreme Court has already answered in Stainislaus that it is not. The law is only seeking a declaration and an inquiry to satisfy that the conversion is based on free will. Is there really a major problem with seeking such a declaration? If a person is choosing to marry someone he or she loves and if he or she or that person’s family puts a condition that the other person must convert for the purpose of marriage, then is such a conversion really out of free will? The Supreme Court in Lily Thomas has already answered in an emphatic no.
There is another important aspect which has to be considered viz. that the Special Marriages Act, 1954 (‘SM Act’) legalizes any inter-religious marriages. The requirement under the SM Act is that notice requires to be given first and thereafter the marriage would be solemnized without the requirement of any religious ceremony. Therefore, there is no necessity to convert for the purpose of marriage as per existing law.
The SM Act does not bar holding religious ceremonies for solemnization of the marriage but does not give legal sanctity to such ceremonies. In order to overcome the requirements of the SM Act, couples belonging to different religious choose to convert to a common religion and the marriage is solemnized in that common religion.
It is a settled position of law that that a person has a right to marry any person of his or her choice and also has the right to convert his or her religion as per choice.[10] There is no rational need or nexus for converting to the other person’s religion for the purpose of marriage. If a person is allured fraudulently to believe that without conversion the marriage is not possible, then would it be entirely wrong on part of the State to place restrictions to ascertain and satisfy itself that the conversion for the purpose of marriage is not necessary and apprise such a person of the provisions of the SM Act.
The SM Act was put in place for the specific purpose of ensuring that the marriage between inter-religious communities take place and this great nation of India continues to remain a melting pot and an amalgum of cultures. It was only after Akbar married Jodhabai that his perspectives towards religion evolved and became tolerant. He did not insist on his wife to convert to Islam.[11] Two examples from contemporary times are also relevant, Shahrukh Khan’s wife is a practicing Hindu. The families celebrate both Hindu and Muslim cultures. In Karnataka, a Congress politician Mr. Dinesh Gundu Rao’s wife is a practicing Muslim. Neither spouse has restricted the other from practicing their religion. They claim that they have an increased appreciation of the other’s religion because of the inter-religious marriage. I cite them as examples merely to show how love unites in the absence of conversion for the purpose of marriage. As a country we must encourage that and appreciate the same rather than be restricted by religion and insist on conversion for the purpose of marriage.
To conclude, I would say that there is nothing wrong in the UP Ordinance ensuring that the conversion is not for the purpose of marriage and it would not fall foul of the Constitution.
(Ajay J Nandalike is an advocate practicing in the Karnataka High Court. I thank Mr. Harish Jayakumar, Advocate for the research and the tabular representation and Mr. Chandan Kallaiaah Advocate for his valuable inputs. Views are entirely personal)
[6] It is interesting to note that several petitions were dismissed by a general order. The order was passed by a Bench comprising of CJI Gogoi, J Deepak Verma and another judge. J Deepak Verma passed the judgment in the HP High Court. Therefore, in effect J Deepak Verma dismissed the appeal against his own order, albeit by inadvertence and as a procedural order.
Relevant paragraphs: 8…“Whether a permanent employee of the Panchayat can be removed on acts of misconduct without holding a departmental enquiry?”
12 & 13. Sections 113 (3) of the Karnataka Gram Swaraj and Panchayat Raj Act, 1993 noticed. The afore-extracted provision of law, no doubt empowers the Gram Panchayat to reduce in rank, remove or dismiss any employee appointed by it. But this cannot clothe the Gram Panchayat with the power to remove a permanent employee on grounds of misconduct, without holding an enquiry and giving reasonable opportunity to defend himself as the allegations made would remain allegations until it is substantiated by a process known to law failing which, it would amount to removal of an employee on the basis of suspicion.
14. It is trite law that any amount of suspicion cannot take the place of proof and proof can be arrived at only if a procedure to arrive at is followed. Thus, conduct of a departmental enquiry in the wake of the allegations of misconduct is mandatory and cannot be obviated or circumvented in any manner.
15. Though the employee of a Gram Panchayat is not a civil servant in its true sense and would not get the protection of Article 311(2) of the Constitution of India nonetheless, a Gram Panchayat being a State under Article 12 of the Constitution of India and is bound by the rigors of Article 14 of the Constitution of India.
16. Therefore, even if a provision bestows power upon the employer to remove an employee for misconduct under any statute without holding an enquiry, natural justice and reasonable opportunity of defence will have to be read into such statutes failing which, the very exercise of such power and the manner of its exercise becomes blatantly arbitrary. More so, when an action under the statute is likely to result in loss of livelihood or cast a stigma on such employee. If the aforesaid interpretation is not given to such statutes, it would be giving absolute, unbridled and unguided power to the employer to dismiss an employee which would not stand the test of Article 14 of the Constitution of India.
17. An instrumentality, agency or any other authority under Article 12 of the Constitution of India must act fairly, justly and reasonably as fair treatment is an essential inbuilt of principles of natural justice. It is apposite to quote the words of the Apex Court “reasonableness and non-arbitrariness pervades the entire constitutional spectrum and is a golden thread which runs through the whole fabric of the Constitution of India”. Therefore, any act of unreasonableness or unfair treatment will fall foul of the rigors of Article 14 of the Constitution of India.
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